WOMEN’s PROPERTY RIGHTS UNDER HINDU AND MUSLIM LAW

Hindu Succession Act, 1956

• According to Section 14 of the Act, any property held by a woman acquired before or after the passing of the Act is held by her as a full owner and not as a limited owner. She is free to distribute and gift the property as per her own wishes.
• Section 15 and 16 of the Act lay down the general rules of succession in case of Female Hindus dying intestate. The order of devolution is mentioned below. firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
• secondly, upon the heirs of the husband;
• thirdly, upon the mother and father;
• fourthly, upon the heirs of the father;
• Lastly, upon the heirs of the mother.

Hindu Succession Act, 1956 — applicable to whom, before amendment and after amendment

• The 2005 Amendment Act applies to the living daughters of living coparceners on the day the Act was passed, i.e. September 9, 2005 irrespective of when they were born.
• Disposition or Alienation or Partition of Ancestral property before 20 December, 2004 shall remain unaffected.
• The daughter will become a coparcener from birth and shall have the same rights and liabilities as the son.
• Daughters of coparceners who were deceased before September 9, 2005 will have no rights to the ancestral property.
• In Danamma @ Suman Surpur vs Amar (2018), the Hon’ble Supreme Court held that daughters born before 2005 too have the right to equal share in Ancestral property.

Property Rights for Muslim Women

The rights of Muslim women are not governed under any Indian Statute. They are given under Islamic personal Law. In Ahmedabad Women Action Group (AWAG) v. Union of India (1997) 3 SCC 573, a PIL was filed in order to deem the inheritance rights under Islamic law void as they are discriminatory in nature. However, it was held that India had been governed by personal law since ages and interference would lead to several undesirable outcomes. The subject was said to be beyond the Jurisdiction of the Court and the said matter was dismissed.

• Under the Islamic law, the share of a daughter is half to that of a son.
• If there is only one daughter, then her share is half the total property.
• If there is more than one daughter but no son then only two-thirds of the property is divided among them.
• If there are 2 daughters and a son, the son inherits one-half of the property and both the daughters inherit one-fourth each of the property.
• If there is only one daughter she inherits half of the property.
• The share of wife in the deceased husband’s property: One-fourth if they have no children.
• One-eight if they have one or more children
• The share of a mother in deceased son’s property: One-sixth if there are no grandchildren
• One-third if there are grandchildren

The Landmark 2005 Amendment to the Hindu Succession Act

The Hindu Succession (Amendment) Act, 2005 is the single most important development in women's property rights under Hindu law. It inserted Section 6(1) to provide that a daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son. The key aspects are:

• The amendment applies to daughters born before or after 2005 — the Supreme Court in Vineeta Sharma v. Rakesh Sharma (2020) clarified that the amendment is retrospective in nature: a daughter has coparcenary rights from birth, regardless of whether she was born before or after 2005.
• A daughter can now demand partition of ancestral (HUF) property, just like a son.
• The daughter's share in the coparcenary property is equal to that of a son.
• On the daughter's death, her share in the coparcenary property passes to her own heirs (not back to the HUF).
• NRI daughters who were previously excluded from family property settlements can now claim their share under this amendment, even if the partition was not formally settled during the parents' lifetime.

Rights in Self-Acquired Property

For self-acquired property (property purchased by an individual from their own funds, not inherited ancestral property), the Hindu Succession Act Class I heirs take equal shares. Class I heirs include:

• Sons and daughters (equal rights)
• Widow/widower
• Mother
• Son/daughter of a pre-deceased son or daughter (grandchildren)

The key protection for women: if a husband dies intestate (without a will), his self-acquired property goes equally to wife, sons, daughters, and mother. A widow cannot be displaced from self-acquired property by adult children.

Property Rights of Muslim Women: Updated Position

Muslim personal law governs succession for Muslims in India. The key features are:

• Quranic heirs: Daughters receive half the share of a son under Hanafi law (the most prevalent school in India). However, a daughter's entitlement is guaranteed by Quranic mandate and cannot be excluded by will.
• Maximum testamentary freedom is 1/3: A Muslim can only bequeath up to 1/3 of property by will. The remaining 2/3 must pass to legal heirs by Sharia succession. This protects daughters from being entirely disinherited.
• Mehr (dower): A Muslim wife's mehr is a debt on the husband's estate. It must be paid to her before the estate is distributed among heirs, giving her a preferred creditor status.
• Widow's share: In the absence of children, a widow receives 1/4 of the estate; with children, 1/8. These shares are irrespective of the quantum of property.
• The Muslim Women (Protection of Rights on Divorce) Act, 1986 as interpreted by the Supreme Court in Danial Latifi v. Union of India (2001) ensures that a divorced Muslim woman receives fair and reasonable provision for her entire life, not just during the iddat period.

Triple Talaq abolished: The Muslim Women (Protection of Rights on Marriage) Act, 2019 criminalises instant triple talaq. This strengthens Muslim women's marital and property security significantly.

NRI Women and Property Rights: Special Considerations

For NRI women asserting property rights in India:

• An NRI daughter can file a partition suit in the civil court where the property is located, claiming her coparcenary share under the 2005 amendment.
• If family members dispute her share or exclude her from succession, she can approach the civil court for a declaration of right and injunction.
• The Domestic Violence Act, 2005 (Section 17) gives a wife the right to reside in the shared household even if it is not in her name — relevant for NRI wives asserting residential rights in Indian family homes.
• For NRI women in matrimonial disputes, the Protection of Women from Domestic Violence Act can be invoked through a Magistrate's court for both protection orders and property-related relief.
• Cross-border maintenance: Indian courts have consistently held that they have jurisdiction to pass maintenance orders regardless of where the NRI husband resides.

Property rights are amongst the most contested areas in NRI family law. Early legal advice is essential, particularly where family members may be consolidating assets or attempting to create third-party interests before a formal claim is made. Consult our family law team →