Real Estate

Women Rights on Ancestral Property– Fractional Justice Or Not?

By 23/08/2021April 28th, 2022No Comments
women rights on ancestral property

Women Rights on Ancestral Property

Property rights lie at the juncture of our cultural ethos, economy, and the law. They are collectively shaped by societal transgression, development, and legal considerations. Though the Hindu Succession Act 2005 served as watershed legislation on many counts to adduce women’s rights, it failed to redeem itself from the clutches of gender orthodoxy. Simply put, the Hindu Succession Act 2005 emerged as a classic case of “fractional justice”. For instance, the husband was bestowed with a veto power with regard to all aspects of women’s property, therefore, evidently, the right of widows and divorced women were practically non-existent.

It was, at best, a half-hearted measure to improve the position of women. It retained the Mitakshara coparcenary whose membership was confined only to males. Sons would not only get a share of their father’s property but also their own interest as coparceners in the joint family property. Daughters would only get an equal share in the paternal property. This was the main point of contention that called for legal reform in 2005.

India is yet to have a Uniform Civil Code, as a result of which the current laws pertaining to the rights of widows and divorced women are largely governed by the Hindu Succession Act, 2005 and the Indian Succession Act, 1925. The law relating to widows and divorced women’s rights in the ancestral property of the husband is intact to the point that the share in the ancestral property that belongs to the husband shall be equally bequeathed upon the widow and her children in the event of the husband’s demise.

Likewise, in the case of a divorced woman, she is entitled to the same share that she would have been entitled to had she been married to him.  However, the law provides for the right to be conferred upon a widow and a divorced woman only in case it is inherited from the husband, which means that she is not made the co-owner but merely holds the right of inheritance.

Remarkably, Uttarakhand Government set a precedent for other states to follow by upholding the status of a wife as a co-owner instead of just holding inheritance rights. However, the right of a co-owner ceases to exist if a woman remarries.

However, suppression of women’s rights persists despite the above-mentioned ordinance as it is only passed in Uttarakhand and the women in the rest of the country are currently governed by the laws which impede upon their rights as an owner of the husband’s property as their rights in the said property is limited to the share allotted which can be exercised only upon inheritance.

Thus, there is a dire need to look at the laws governing properties through a gender-neutral perspective which would empower women of the country who have been oppressed over the years and have been disavowed of their rights. The same can be overcome by involving women in the law-making process that affects them and making small changes in the law for instance replacing the word ’wife’ with a spouse could go a long way in creating an inclusive law.

Additionally, women in the rural areas farm on ancestral property while their husbands migrate to cities for a better standard of living, but women are prohibited from availing of a loan without the husband’s consent. Thus, beholding women as co-owners is a pragmatic move that enables them to invoke their rights in the said property. 

Hence, despite having numerous women-friendly laws, the persistence of stereotypes and conservative attitudes have a major impact on the advancement of women’s rights which is not only depriving them of the same status as the other gender but also making it tiresome for them to survive in a male-dominated environment.

A radical change in the existing culture pertaining to gender and justice is imperative. Therefore, it is undeniable that providing co-ownership rights to women on the husband’s property is not only the right thing to do but is the way forward to eradicate poverty, hunger, and violence. At the same time, it will give women a better footing to stand on to claim their rights in such ancestral properties.

In hindsight, though women’s property rights have emerged as a contested terrain wherein lived ideas of tradition and modernity have been revisited and dissected frequently in the public sphere, the recent judgments and ordinances come off as a breath of fresh air as opposed to the biased laws that continue to be in force even today.

Property being the fulcrum for patriarchal bargains and negotiations within the private and public domains for women, it empowers women in exclusive ways — allows them to make choices about livelihood, provides security against poverty, and advocates autonomy. So it is rightly said, “Women’s rights are human rights” – be it for property or otherwise!


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