Various legal reforms have been carried out since India’s independence, including equal ownership of daughters. However, equal status remains illusory. Establishing laws and enforcing them in accordance with them is necessarily a lengthy process. The government, the legislature, the judiciary, the media and civil society all have to play their roles, each in their own areas of competence, and in concert so that the process is quick and effective.
To quote Justice Sujata V. Manohar of the Supreme Court of India

“…It is not easy to eradicate deep-seated cultural values ​​or alter traditions that perpetuate discrimination. It is fashionable to denigrate the role of legal reform in bringing about social change. Obviously, law alone may not be enough.” The law is only an instrument. It must be used effectively. And this effective use depends both on a supportive judiciary and on the social will for change. An active movement for social reform, if accompanied by legal reform, duly applied, can transform society.”

historical perspective
An effective social reform movement needs the help of the law and a sympathetic judiciary to achieve its goals. The empowerment of women, equal rights for men and women, equitable distribution of property, etc., are some of the issues we discuss every day, in life, in newspapers and on television. But the reality that bites is that these issues remain “unresolved.” In reality, not much has been done to create gender equality between men and women. The male still dominates society.

If it is a question of property, then legally the man dominates society. There are numerous laws that say there should be no discrimination between the sexes, but in reality none of them are effective enough to spark a revolution; a change in society.

According to the Indian Succession Act of 1925, everyone is entitled to the same inheritance except Hindus, Sikhs, Jains, Buddhists and Muslims. Under this law, the daughter of a person who dies intestate would be entitled to only a quarter of her son’s share, or Rs 5,000 /-(Stres Dhan), whichever is less. However, the Travancore High Court held that the Indian Succession Act would not apply to Christian women from the state of Travancore in view of the Travancore Christian Succession Act 1916. Under the State Act, the daughter of a person who dies intestate would be entitled to only a quarter of the child’s share or Rs 5,000/- (Stres Dhana), whichever is less. The application of the State Act was challenged in the High Court in the famous case of Mary Roy (Mary Roy v. State of Kerala, AIR 1986 SC 1011; 1986(2) SCC 209). The Court ruled that the Cochin and Travancore Christian Succession Acts had ceased to be operative in the Reorganization of the States and that they automatically made the Indian Succession Act applicable to all Christians in Kerala, giving them equal inheritance rights.

The Hindu Enactment Act of 1956 established that women have the same inheritance rights as men; and abolished the lifetime patrimony of heiresses. However, this law could not do what was necessary as there was another law, the co-partners of Mitakshara (Hindu Law) that annulled the previous law.
According to Mitakshara co-owners, in a joint family, a daughter receives a much smaller share of the property compared to the son. While the father’s property is shared equally between brother and sister; the brother, in addition, has the right to a part in the co-partnerships from which the sister is excluded.

Recommendations of the Women’s Committees/Commissions on the Status of Women in India

In 1975, the Indian government formed a committee on the status of women to assess the current legal provisions regarding women, so that a woman is not left completely helpless.

Some important recommendations made by this committee were that legislative steps should be taken to include Christian women from Kerala in the Indian Succession Act. The Indian Succession Act should be extended to Goa and Pondicherry respectively to undo the relegation of widows to the fourth position in succession matters and undo the lower position to which Christian women are relegated as they are not considered full owners of property . As far as property succession among Hindus is concerned, birthright should be abolished and the Mitakshara co-partnership should become Dayabhaga (the retention of the Mitakshara co-partnership perpetuates the inequality between sons and daughters as only men can be co-participants, and inheritance is only through the male line). The exception provided in Section 4(2) of the Hindu Succession Act relating to the return of tenancies should be abolished (this provision, as it stands, excludes from the scope of the Act the return of tenancy rights under of various state laws).

Discrimination between married and unmarried daughters in relation to the right of inheritance of tenement houses caused by Section 23 of the Hindu Succession Act should be removed.
The right to testate should be limited under the Hindu Succession Act so that heiresses are not deprived of their inheritance rights. There is a need for legislation in Muslim law to give an equal share of property to the widow and daughter along with the sons as is done in Turkey.

In marital assets, the economic value of the contribution made by the wife through domestic work should be legally recognized for purposes of determining the ownership of the marital assets, instead of continuing with the archaic test of the real financial contribution; In case of divorce or separation, the wife must be entitled to at least one third of the property acquired at and during the marriage.

The National Commission for Women had also recommended certain amendments in laws related to women and property. Under the Indian Succession Act 1925, it is suggested that sections 15 and 16 of the Act be amended, removing the mandatory linking of the domicile of the wife to that of the husband. In addition, it recommended that the appointment of the testamentary guardian can be a right of both parents acting at the same time. Widows must be granted a letter of administration to deal with the deceased husband’s estate, unless the Court excludes them for good reason (Section 219(a)). ).In the Hindu Succession Act, 1956, he suggests that equitable distribution should be made not only of the separate or self-acquired property of the sick man, but also of undivided interests in shared property. by birth in his own right in the same way as her son; she must be entitled to a survivorship claim and have the same responsibilities and disabilities as a child; plus shared property to be equally divided and allocated.

The right of any heir to claim the partition of a house only occurs after liquidating the rights of the widowed mother in the event that the deceased man is intestate.
A notable tooth in this situation was made by the Hindu succession. [Andhra Pradesh] Amendment of the Law of 1985, which initiated a remarkable development. This law established that, in any circumstance, the rights of the daughter are equal to those of the son. This new law found that the Mitakshara system violated the fundamental right of equality given to women in the Indian Constitution. After Andhra Pradesh, the states of Tamil Nadu, Maharashtra and Kerala have also subsequently amended their laws by including women as members of co-partners.
The Rajya Sabha on 16 August 2005 passed the Hindu Succession (Amendment) Bill 2004, (Hindu Succession (Amendment) Act 2005), which is now a law giving daughters and sons equal rights of property. According to this law, any woman, regardless of her marital status, has the full right to inherit ancestral property just like a child of the family. This law has completely abolished the Hindu Succession Act 1956 by giving daughters the same rights in the ‘Hindu Mitakshara Coparcenary estate’ as sons. However, if any of the parents had built a property and had made their own will, this law would be ineffective.

Myth

Previously, the law used to place male heirs in a higher position by providing that they will inherit an additional independent share in the shared property on top of what they inherit equally with the heiresses; the very concept of co-partnership was that of “an exclusive club of male members”. But surprisingly, even today, even after the new law, co-participation is still a main right of men; to be sure, the law provides for an equitable division of the share between all heirs, male and female, upon the death of a male partner, but in practice, the scene is totally different. Legally, self-acquired intestate property is transferred equally between male and female heirs; But, even current heiresses are required to give up their share by signing quitclaim deeds and are commonly filed in court. If the intestacy includes a dwelling house, the heiresses do not have the right to partition until the male heirs choose to divide their respective shares. If a Hindu woman dies intestate, her property passes first to the heirs of the husband, then to the heirs of the husband’s father, and finally only to the heirs of her mother; therefore, the property of the intestate Hindu woman remains within the bond of her husband.

conclusion

In order to really achieve an equal inheritance for all, the laws have been modified. With regard to property succession among Hindus, birthright has been abolished and the co-partner Mitakshara School of Hindu Law has been converted into the Dayabhaga School which means equitable distribution not only of separate or acquired property by himself of the sick man, but also of undivided interests in co-partnerships. Daughter of a partner in a Hindu joint family governed by Mitakshara Law is now a partner by birth in her own right in the same way as a son; she is entitled to a survivorship claim and has the same responsibilities and disabilities as a child; now shared property to be divided and allocated equally. Theoretical reforms so far have not been adequate to give all Indian women a property right on the same terms and conditions as men. Varies by region and religion. Even where the law has granted a right, conventions and practices do not recognize it. Women themselves enjoy their rights. Women, as daughters, wives, daughters-in-law, mothers or sisters, tend to lose out and often experience deprivation. This is further accentuated when they lose family security, such as single, divorced/separated or widowed women. Therefore, social awareness of rights under the law, attitudes to adhere to them, and a mindset to change law and practice to ensure social justice are urgently needed.
Therefore, a social reform movement is necessary for such an awareness and change of mentality. Since ‘marriage’ is the most traditional institution for starting and preserving a family, registration of marriages is mandatory. It is suggested that in order to achieve more power for women, we must increase awareness of the laws through educational institutions, general awareness, and legal awareness programs. ; sensitize the Judiciary, administrators and legislators about the implementation of the laws in letter and spirit; consider long-standing recommendations to amend the legal provisions on succession and strengthen the administrative machinery to that end.