Status of women under Hindu law

“Freedom cannot be achieved unless women have been emancipated from all kinds of oppression.” – Nelson Mandela.

By Nieharika Sharma

The Constitution of India emphasises that one must be provided with equal rights, opportunities, wages etc without discriminating them on the basis of religion, gender, caste. Yet we still witness inequality in terms of gender in various parts of the country. Women are supposed to be financially dependent on their father or husband or brother but as the society progresses, we can see how the laws also change. In the ancient Hindu law, it was thought of that a woman must be reliant on her father in childhood, upon her husband in youth and upon her sons in the old age. The Indian society is considered a patriarchal society wherein women have fewer rights than men do. In the article, I will discuss how woman’s status has been changed from that of being a dependent person to having her own rights, property and powers.

WOMAN’S RIGHTS UNDER VARIOUS AREAS OF HINDU LAW

1. Marriage

Marriage under Hindu law is seen as a sacred and eternal bond between the husband and wife which cannot be untied. A man is considered incomplete without a woman as they both help to perform the religious rites and discharge debts to man’s ancestors. The Hindu Marriage Act governs the marriages of a Hindu, Buddhist, Jain or Sikhs. Under modern Hindu Law, Marriage whether considered as a contract or sacrament gives rise to a status.

• A woman can decide herself to whom she can marry, the consent of parents and grand-father is not required.
• In the case Madhavi Ramesh Dudani v Ramesh K Dudani[i], A non-Hindu by birth (a Christian lady by birth in this case) converts to Hinduism before marriage, and all facts and circumstances indicate that the converted spouse practised Hinduism, the plea of absence of proof of conversion or shudhi karan ceremony cannot be raised to seek declaration of nullity of marriage on the ground that the other spouse was a non-Hindu.

Under Section 5 of The Hindu Marriage Act, 1955 if the following prerequisites are met, a Hindu couple’s marriage will be solemnised. The following are the prerequisites:  

1.  The couple should not have a spouse living during the wedding.
2. Neither of the couples is incapable of consenting to the marriage due to unsoundness of mind.
3. Neither of the couples should suffer from any mental illnesses that would preclude them from marrying and having children.
4. Neither of the couples should be experiencing from attacks of insanity or epilepsy.
5. At the time of marriage, the male must be 21 years of age and the female has to be 18 years of age.
6. There should not be any prohibited relationship unless the couple’s custom permits them to get married. 
7. No sapindas (cousins) unless their custom permits them to get married.
8. Women as Karta of Family
9. Karta is the senior most male member of the joint family, karta is also considered as a head of the family. In a family including a father and his children, the father is the karta of the family and when the father dies the eldest son becomes a karta. His position is sui generis. After the Hindu Succession (Amendment) Act, 2005 females can also be Karta.

Liabilities of Karta (Diwan, 2018)

1. Karta is in charge of looking after the entire family.
2. If the family members are not maintained properly, he can be sued.
3. He is also responsible for marriage of all unmarried members.
4. This responsibility has been particularly mentioned about the daughters.
5. Karta is responsible for paying the family’s taxes and other expenses.
6. Karta has to discharge many liabilities and responsibilities on behalf of the family.

In 2005, the government revised the Hindu Succession Act of 1956 in order to improve Hindu women’s economic capabilities. The measure marks a significant milestone in women’s rights. The 2005 Act resolves disparities in ancestral property, dwelling houses, and widows’ rights, as well as adding some new heirs to the Class I heirs list, which safeguards their interests.

Two case laws determine a woman’s status as a karta in a household. Initially, the Nagpur High Court declared that in the absence of adult male members, a mother who is not a coparcener can be a karta. The Supreme Court held in the matter of Commr. of Income Tax v. Seth Govind Ram 1966 that a mother or any other female could not be a karta as specified in Hindu Law texts as earlier females were not even considered as a coparcener. The Karnataka High Court concluded in Gangoji v. H.K. Channappa 1983 that the mother who is the natural guardian of her minor sons can handle the joint family property and that the court’s designation of a guardian is not justifiable.

In case wherein a female is a widow, in Radha Ammal v. Commissioner of Income Tax[ii], it was held that since a widow is not regarded a coparcener, she does not possess the legal qualifications to become a manager of a Hindu Joint Family, also known as Karta. But in the case of CIT v Seth Laxmi Narayan Raghunathdas[iii], the High Court Given that a widow can be a coparcener under Dayabhaga Law, she could even be the family’s Karta, especially if she is the family’s only sui juris member. For Mitakshara Law, where along with male coparcener a female may not be a coparcener because she does not possess the right of survivorship, the court observed that this right or the status of a coparcener is not a requisite for being the Karta of a joint Hindu family to which she has been admitted to.

• In Divorce

The concept of divorce came from common law. According to Hindus, marriage is an eternal union but Hindu Marriage, 1955 has adopted the concept of ‘divorce.’ The concept of divorce is mentioned under Section 13 HMA[iv]. It is a permanent dissolution of marriage. There are three theories regarding divorce, i.e. The Fault Theory, Mutual Consent Theory, Irretrievable Breakdown Theory.

Under Section 13(1) of HMA, either of the spouse can seek divorce: –

Any marriage solemnized, whether before or after commencement of this act, may on petition presented by either of the persons be dissolved by decree of divorce. The grounds of divorce before the Marriage Laws Amendment Act, 1976 are as follows:

1. Desertion
2. Cruelty
3. Leprosy
4. Venereal Disease
5. Insanity or unsound mind
6. Adultery

After Marriage Laws Amendment Act of 1976 (Diwan, 2018), some grounds for Divorce and Judicial separation were added making it in total 8 grounds for divorce.

1. Adultery
2. Cruelty
3. Desertion
4. Ceased to be a Hindu by conversion to another religion.
5. Incurability of unsound mind.
6. Has been suffering from a virulent form of Leprosy/Incurable.
7. Venereal Disease.
8. Has not been heard of being alive.

In divorce there is a sole ground for wife mentioned under Section 13(2) of HMA, through which she may present a petition for dissolution of marriage by a decree of divorce on the grounds:

1. The husband has solemnized a bigamous marriage after commencement of this Act.
2. The husband has been guilty of rape and sodomy.
3. There has been a decree awarded in a suit under Section 18 of Hindu Adoptions and Maintenance Act, 1956 or in a proceeding under Section 125 of CrPc against husband.
4. Her marriage (whether consummated or not) was solemnised before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18.
5. In Hindu Property Laws

Only male agnates have the power to own and inherit property under Hindu law, which is patriarchal. Stridhana, which was very complicated and limited, was the only concept of women’s property that existed. The Hindu Succession Act, 1956 changed Hindu women’s limited ownership to absolute ownership, giving them complete control over their property and no restrictions on how they may dispose of it. It strengthened women’s economic power and provided them more social and economic freedom.

Before the HSA, if a male Hindu was survived by a son and a daughter, the son would inherit the entire coparcenary property as the single surviving heir and post the enactment of Act, unmarried daughters would receive a portion of an undivided male member of the coparcenary. As a Class I heir described by Section 6 of the HSA[v], the daughter would inherit a share of the coparcenary property through succession. Coparcenary property (Diwan, 2018) is inherited by a Hindu man from his father, grandpa, or great grandfather and refers to a person who has the right over their joint family property by birth. Only a coparcener has the authority to demand property partition because the coparcenary property is regarded a joint owner. The 2005 Amendment Act changed the traditional paradigm by allowing daughters to obtain a share in coparcenary property. She can also demand a partition, be allotted the same portion as a son, and dispose of it through testamentary succession. Although this Act grants coparcenary rights to individuals born into the family, a wife’s right to be a coparcener remains unaffected.

In the case of Prakash v. Phulvati[vi], the bench said that if the father (the coparcener) died before September 9, 2015 (the date of enforcement of the amended legislation), his daughter would have no right to the coparcenary property under the 1956 Act. The Supreme Court overruled the judgement according to the revised statue of 2005.

In the case of Danamma v. Amar[vii], the Supreme Court bench stated that the revised Section 6, grants the daughters full rights. Despite their father’s death in 2001, the daughters have the right to claim the properties.

Under Hindu Law, there are two types of properties i.e. Ancestral Property and Separate Property. The law of intestate is concerned with matters such as who are the persons entitled to take property, i.e. who are the heirs; what are the rules of preference among various relations; in what manner the property is to be distributed in case a person has more than one heir, what are the disqualifications of heirs. (Diwan, 2018)

Succession to the property of a Hindu female

Hindu female property is divided into the following categories for succession purposes:

1. Property inherited by a female from her father or mother,
2. Property inherited by a female from her husband or father-in-law.
3. Property obtained by her from any other source, by inheritance or otherwise.

If a Hindu woman dies and leaves behind children, the source from which she obtained the property makes no difference.

Section 14 of HSA defines that a Hindu female will be the full owner of her property not a limited one. Section 15 of HSA defines that the property of a Hindu dying intestate shall devolve according to the rules set under Section 16 of HSA. The transfer takes place according to:

1. Sons and daughters (include children of predeceased son or daughter)
2. Husband
3. Heirs of husband
4. Mother and father
5. Heirs of the father
6. Heirs of the mother

Property inherited from Father or Mother

Under Section 15(2), defines that the property which she gets in gift at the time of her marriage from her father or mother is not included. Such a property is her stridhan and succession to it is governed by Section 15(1).

Property inherited from Husband or Father-in-law

If the proposita inherits property from her husband or father-in-law, her heirs will be categorised into two categories.

Category 1: Sons, daughters, sons and daughters of predeceased sons, sons and daughters of predeceased daughters.

Category 2: On the failure of heirs in category 1, the property devolves upon the heirs of the husband.

Property obtained by her from any other source

If a Hindu female dies leaving no relation or if there is no presence of Class 1, Class 2, agnates and cognates then the government takes her property as an heir, subject to all obligations and liabilities of the intestate. Under both sub-sections of Section 15, it is vital that a female Hindu does not have any heirs.

In case of widows, they did not have the right to demand a partition of the coparcenary property prior to 1937, but they did receive a share of the property when the property was divided between the surviving sons. The Widow Remarriage Act of 1856 was in effect at the time, and it stated that any right a woman had over her deceased husband’s property would disappear if she remarried, and would instead transfer to other heirs.

Despite the innovative provisions of the Hindu Succession Act of 1956, Hindu women in Indian society still lack property rights in general. Despite the fact that the Act introduced revolutionary reforms, family members have mostly ignored it in reality since the provisions are incompatible with existing Hindu social ethos. In truth, there is a distinct difference between the law as written and the law as applied. Women’s freedom is still a long way off.

–Nieharika Sharma is a fourth year student of the Amity Law School, Noida

[i] AIR 2006 Bom 94.

[ii] AIR 1950 Mad 588.

[iii] 1966 AIR 24.

[iv] Hindu Marriage Act, 1955.

[v] The Hindu Succession Act, 2005.

[vi] AIR 2011 Kar 78: (reversed)(2016) 2 SCC 36.