Hindu Jurisprudence on Succession and Gender Equality: The Indian

Scenario
Ravi Kant Mishra*

“Empowering women is a prerequisite for creating a good nation, when women are
empowered, society with stability is assured. Empowerment of women is essential as
their thoughts and their value systems lead to the development of a good family, good
society and ultimately a good nation.”
-A PJ Abdul Kalam**

Equality before law, equal protection of law, equality of opportunity in social, economic
and political spheres are the bedrock of justice and discrimination of any kind on any basis is
antithesis to the concept of equality and justice. Women, constituting half of the Indian population,
self sacrifice and self denial are whose nobility and fortitude have been subjected to all inequities,
indignities, inequality and discrimination.1 They always remained bereft of the advances in social
development, education, health, employment, economic participation, science and technology etc.
because of the traditional and stereotype roles of nursing children, caring husband and in- laws,
and carrying out domestic chores such as cooking and cleaning etc. accorded to them. The root
cause of women’s subjection is their economic dependence on men and as long as women will be
denied for or deprived of economic independence, there cannot be equality between sexes.2
Proprietary rights are of special importance and significance because economic
independence has usually an important bearing on the well being of a class. In the realm of
property, the old Hindu law granted to women limited proprietary rights and discriminated women
on the ground of sex in the matter of intestate succession to the estate of the parents or husband.
Thus, the position of women in India under the traditional Hindu law was much worse because of
the restrictions on the rights of inheritance of women and the limited estates of Hindu
women.3Being cognizant to the unequal position of women in intestate succession, after
independence when old human values assumed new meaning and also due to the growing
worldwide impact of human rights and fundamental freedoms4 the need for emancipation of

1
* Assistant Professor, Department of Law, North Eastern Hill University (NEHU), Shillong, Meghalaya(India)- 793022.
**Former President, Republic of India.
*

See Madhu Kishwar Vs State of Bihar, AIR 1996 SC 1864 at 1871

2
See generally B.C. Nirmal, ‘Taking Violence Against Women Seriously:International and Domestic Human Rights
Jurisprudence’, in Bimal N. Patel (ed) India and International Law-II, Koninklijke Brill NV, The Netherlands,
2008,p 413-452; Monica Chawla, Gender Justice: Women and Law In India, Deep and Deep Publications, New
Delhi, 2006; C.L. Anand, Equality, Justice and Reverse Discrimination, Mittal Publication, Delhi, 1987; Sachs and
Wilson, Sexism and the Law, in Cam’bell and Wiles (ed) Law in Society, Martin Robertson and Co. Ltd, 1978; W.H.
Chafe, Women and Equality, Oxford University Press, New York, 1977
3
A.S. Altekar, The Position of Women in Hindu Civilization, Motilal Banarsidas, Delhi, 1978;Priya Nath Sen,General
Principle of Hindu Jurisprudence, Tagore Law Lectures, Allahabad Law Agency, 1984,P 125-175;Justice R.N.
Mishra, Mayne’s Hindu Law and Usage, Bharat Law House, New Delhi, 15th edition.
4
For efforts at international and regional levels to empower women see generally B.C. Nirmal, ‘Taking Violence
Against Women Seriously:International and Domestic Human Rights Jurisprudence’, in Bimal N. Patel (ed) India
and International Law-II, Koninklijke Brill NV, The Netherlands, 2008,p 414-421; Justice R.C.Lahoti,’Women’s
Empowerment – Role of Judiciary And Legislature’,(2005) 2SCC (J) p49-50;K Tomasevski,Women and Human
Rights, Women and World Development Series, London, Zed Books,1993;J. Kerr, Ours by Right:Women’s as Human
Rights, London, Zed Books,1993;R.Cook, Human Rights of Women:National and International Perspectives,
Philadelphia, University of Pennsylvania Press,1994;Amnesty International, Human Rights are Women’s Rights,
London, Amnesty International, 1995;Katarina Tomasevski, Women’s Rights, in Janusz Symonides (ed) Human
Rights Concept and Standards, Rawat Publications, New Delhi,2002,p231-254.

8
women was realized and to set up a new social order to give women equal status and place of
honor and to abolish discrimination in succession based on gender became the demand of the time.
In the year 1956, the Hindu Succession Act, came into existence which improved the pre-
existing rights of Hindu women but it had some gross features of discrimination such as retention
of Mitakshara Coparacenary5, discriminatory provisions relating to devolution of tenures, right to
partition, dwelling rights etc.
In the year 2005, a major Amendment6 has taken place with an aim to eliminate gender
discrimination in the arena of succession or inheritance laws.
This article aims to discuss the efficacy and importance of the Hindu Succession
Amendment Act, 2005 in removing or eliminating gender inequities and in accelerating
empowerment of women in lieu of Hindu jurisprudence and the demand of time. This article also
intends to examine the impact and repercussions of amendment provisions on family, society and
other social organizations.

Hindu Jurisprudence on Women’s Property Rights: Background in brief:-

Indian Jurists feel proud that at least in theory their indigenous jurisprudence7 allowed women,
stridhanam8, an asset available at their disposal or at least for their enjoyment and security at a
5
Under the Mitakshra System of Joint Family, which prevails in all parts of India apart from Bengal only males are
members (coparceners) of the Joint Family and the right to inheritance was by way of survivorship and not by way
of succession. The son acquired a right and interest in Joint Family Property on birth while a woman family member
only had a right to maintenance. However the Hindu Succession Act gave a share to the first class female heirs
(daughters and wives) in the share of the father / husband in the joint family property who died intestate (without
making a will). However this share was not equal to the share, which a son inherited, since the son was deemed to
be coparcener (member of the joint family) by birth. For e.g. in a joint family consisting of a father, a son and a
daughter, both the father and the son, according to the Mitakshara coparcenary system , would be equal owners of
the property. Thus when the father died, after the 1956 Act, his share would devolve equally on both the son and
daughter. However the daughter in this particular case would only get 1/4th share of the property whereas the
brother who was already a co owner would have his half share plus 1/4th share of the property.
6
W.e.f.9th September, 2005
7
On Changing Concept of Hindu Jurisprudence, see Werner F. Menski, Hindu Law Beyond Tradition and Modernity,
Oxford University Press, New Delhi, 2003
8
Stridhan/am means woman’s property. In the entire history of Hindu Law, woman’s rights to hold and dispose of
property have been recognized.
Kinds of Woman’s Property-
What is the character of property that is whether it is stridhan or woman’s estate depends on the source from which it
has been obtained. They are:
 Gifts and bequests from relations- Such gifts may be made to woman during maidenhood, coverture or
widowhood by her parents and their relations or by the husband and his relation. Such gifts may be inter
vivos or by will. The Dayabhaga School doesn’t recognize gifts of immovable property by husband as
stridhan.
 Gifts and bequests from non-relations- Property received by way of gift inter vivos or under a will of
strangers that is, other than relations, to a woman, during maidenhood or widowhood constitutes her
stridhan. The same is the position of gifts given to a woman by strangers before the nuptial fire or at the
bridal procession. Property given to a woman by a gift inter vivos or bequeathed to her by her strangers
during coverture is stridhan according to Bombay, Benaras and Madras schools.
 Property acquired by self exertion, science and arts-A woman may acquire property at any stage of her
life by her own self exertion such as by manual labour, by employment, by singing, dancing etc., or by any
mechanical art. According to all schools of Hindu Law, the property thus acquired during widowhood or
maidenhood is her stridhan. But, the property thus acquired during coverture does not constitute her
stridhan according to Mithila and Bengal Schools, but according to the rest of the schools it is stridhan.
During husband’s lifetime it is subject to his control.
 Property purchased with the income of stridhan- In all schools of Hindu Law it is a well settled law that
the properties purchased with stridhan or with the savings of stridhan as well as all accumulations and
savings of the income of stridhan, constitute stridhan.

8
time, when in the west, wives were unable to own property separately from their husbands except
as beneficiaries under some trust or settlement9. But, in fact, it was not more than a security against
ill behavior of her in laws. The Hindu Succession Act, 195610 checked this discrepancy up to some
extent11 (In the case of C. Masilamani Mudaliar vs. Idol of Shri Swaminathathaswam! the Supreme
Court was required to determine the scope of right of Hindu Female to dispose of property
acquired or possessed under a will executed prior to the commencement of the Hindu Succession
Act. 1956. The Court said that Section 14 of The Hindu Succession Act should be construed
harmoniously consistent with the Constitutional goal of removing gender-based discrimination
and effectuating economic empowerment of Hindu Females), rather it may be argued that this Act
has not only improved the status of women but has made protective discrimination in favour of

 Property purchased under a compromise- When a person acquires property under a compromise; what
estate he will take in it, depends upon the compromise deed. In Hindu Law there is no presumption that a
woman who obtains property under a compromise takes it as a limited estate. Property obtained by a
woman under a compromise where under she gives up her rights, will be her stridhan. When she obtains
some property under a family arrangement, whether she gets a stridhan or woman’s estate will depend upon
the terms of the family arrangement.
 Property obtained by adverse possession- Any property acquired by a woman at any stage of her life by
adverse possession is her stridhan.
 Property obtained in lieu of maintenance- Under all the schools of Hindu Law payments made to a Hindu
female in lump sum or periodically for her maintenance and all the arrears of such maintenance constitute
stridhan. Similarly, all movable or immovable properties transferred to her by way of an absolute gift in
lieu of maintenance constitute her stridhan.
 Property received in inheritance- A Hindu female may inherit property from a male or a female; from her
parent’s side or from husband’s side. The Mitakshara constituted all inherited property a stidhan, while the
Privy Council held such property as woman’s estate.
 Property obtained on partition- When a partition takes place except in Madras, father’s wife mother and
grandmother take a share in the joint family property. In the Mitakshara jurisdiction, including Bombay and
the Dayabhaga School it is an established view that the share obtained on partition is not stridhan but
woman’s estate.
Stridhan has all the characteristics of absolute ownership of property. The stridhan being her absolute property, the
female has full rights of its alienation. This means that she can sell, gift, mortgage, lease, and exchange her property.
This is entirely true when she is a maiden or a widow. Some restrictions were recognised on her power of alienation,
if she were a married woman. For a married woman stridhan falls under two heads:
• The sauadayika (gifts of love and affection)- gifts received by a woman from relations on both sides (parents and
husband).
• The non-saudayika- all other types of stridhan such as gifts from stranger, peoperty acquired by self-exertion or
mechanical art.
Over the former she has full rights of disposal but over the latter she has no right of alienation without the consent of
her husband. The husband also had the power to use it. On her death all types of stridhan passed to her own heirs. In
other words, she constituted an independent stock of descent. In Janki v. Narayansami (1906)43 IA 87, the Privy
Council aptly observed, “her right is of the nature of right of property, her position is that of the owner, her powers
in that character are, however limited… So long as she is alive, no one has vested interest in the succession. ” For
comprehensive note on stridhan etc. see Justice R.N.Mishra,Mayne’s Hindu Law and Usage, Bharat Law House,
New Delhi, 15th edition, p1054-1101
9
J.D.M.Derrett, A Critique of Modern Hindu Law, M.N.P. Pvt Ltd, Bombay,1970,p195
10
For detailed study of the Hindu Succession Act, 1956 and position of women under old law of inheritance in India
see generally, S.A.Kader, The Hindu Succession Act,1956, Eastern Law House, New Delhi, 2004;Sir G.Banerji,
Hindu Law of Marriage and Stridhana, Mittal Publications, Delhi,1977. For comprehensive study of the position of
women under the Hindu Succession Act, 1956 see B.Sivaramayya, ‘Coparcenary Rights to Daughters:Constitutional
and Interpretational Issues’,(1997) 3SCC (J) p 25-38;B.Sivaramayya, Gender Justice, in S.K.Verma and Kusum (ed)
Fifty Years of the Supreme Court: It’s Grasp and Reach, Indian Law Institute, New Delhi, 2001,p301-306.
11
Sec. 14 of Hindu Succession Act, 1956, provides that “Any property possessed by a female Hindu, whether
acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited
owner”. Section 14 removes pre-existing disabilities fastened on the Hindu female limiting her right to property
without full ownership thereof. It also removes gender based discrimination and effectuates economic empowerment

8
females. Out of twelve Class-I heirs, eight heirs are females12. Daughters and their children have
the equal right or share of their brothers and their sons in the property left out by father13. The
mother is entitled to inherit the property of the son but the father is not entitled for the same
because he is Class-II heir. Although in the coparcenary property, daughter is not entitled to inherit
it but she can inherit equal share similar to brother from the interest or property left by the father in
the coparcenary property. The honorable Supreme Court has recognized the right of the mother in
the coparcenary property equal to her sons.14The question of utmost importance is that why the Act
did not touched the coparcenary system and the answer may be the existing social orders and the
stereotype characterization of women as emotional, passionate and seductive15.

The Hindu Succession (Amendment) Act, 2005: A Critique:

The Hindu Succession (Amendment) Act, 2005 is a progressive and remarkable step
towards gender justice. The Amendment dilutes patriarchal system prevailing in Hindu society
which has been considered as a source of discrimination among Hindu male and female. It also
gives a serious blow to the Mitakshara coparcenary system, strengthening the notion of patriarchy
in Hindu society. In other words, by this Amendment Act Indian Parliament has made an attempt to
diminish discrimination between son and daughter in respect to succession of ancestral property.
Under Mitakshara system of law, the whole property of any Hindu male is divided into self
acquired and ancestral property. In respect of intestate succession of self acquired property the law
is uniform for both son and daughter. However, the law of intestate succession for ancestral
property discriminates between son and daughter. The Amendment Act, 2005 tries to encounter
inequality provisions at several fronts e.g. agriculture lands, the Mitakshara coparcenary property,
pious obligation of son, parental dwelling house and certain widow’s right.
The first most important change brought by this Amendment Act, 2005 is the substitution
of a new section 6, which provides that a daughter would be a coparcener from her birth, and
would have the same rights and liabilities as a son16. Secondly, on the death of a Hindu having
interest in coparcenary property, such property would devolve either by testamentary or intestate
succession as the case may be but not by survivorship17. Thirdly, this Amendment also removes the

of Hindu females. For judicial decisions on Section 14 see generally, Pratap Singh vs. U.O.I, AIR 1985 SC 1695; C.
Masilamani Mudaliar Vs. Idol of Sri Swaminathanam S. Thirukoil (1996) 8 SCC 525; Bai Vajia Vs. Thakorbhai
Chelabhai (1979) 3SCC 300; Jamuna Bai Vs Bholaram AIR 2003 MP 40; Yamanappa Dudappa Vs. Yellubai, AIR
2003 Kant 396; Gulab Rao Balwant Rao Shinde Vs. Chhabu Bhai Balwant Rao Shinde, AIR 2003 SC 16;Lal Chand
Vs Kali Bai, AIR 2004 P&H 173; P. Rameshwara Rao Vs. I. Sanjeeva Rao, AIR 2004AP 117; Vallabh Vs. Ginni
Devi, AIR 2004 Raj 286; Jose Vs. Ramakrishnan N. Radhakrishnan, AIR 2004 Ker 16; CJ Sheri Vs. Savitir
Chogule, AIR 2005 Kant 30; Sharad Subramanyan Vs. Soumi Mazumdar, AIR 2006 SC 1993; Sahib Singh Vs.
Gurudwara Sahab Narike, AIR 2006 SC 3282
12
See Schedule, The Hindu Succession Act, 1956
13
See Sections 8,9,10 of the Hindu Succession Act,1956
14
Gurupad Khandappa Vs. Heerabai AIR 1978 S.C. 1239; See also R.R.Gupta, ‘Hindu Statutory Laws and Gender
Justice’, Journal of the Legal Studies, 2004-05,p119-120
15
See Yusuf Abdul Aziz Vs State of Bombay, 1954, CrLJ 886 (SC); Soumithri Vishnu Vs. Union of India, AIR 1985
SC 1618
16
Section 6(1) says that: on and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a
Joint Hindu Family governed by the Mitakshara law, the daughter of a coparcener shall-
(a) By birth become a coparcener in her own right in the same manner as the son;
(b) Have the same right in the coparcenary property as she would have had if she had been a son:
(c) Be a subject to the same liabilities in respect of the said coparcenary property as that of a son, and any
reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a
coparcener.

8
concept of pious obligation of son18 etc. which was giving special status to son in comparison to
daughter.
However, this Amendment is not comprehensive enough and involves various social and
legal issues. The coparcenary status of a girl child is no doubt a hard attack upon Mitakshara
patriarchal system but coparcenary system still exist is a matter of grave concern. As a coparcenary
comprise the father and his three male lineal descendants. A coparcener has right by birth in the
property of the joint family i.e. ancestral property. The coparcener also has the right to partition, to
get his individual interest separated. However, the person’s separate interest becomes communal
property again on the birth of a son who acquires an equal interest in the property. Women whether
daughters, mothers or widows cannot be part of the coparcenary but they only have a right to
maintenance. This inequality was diminished by Hindu Succession Act, 1956. It is laid down that
the separate share of the deceased, who died intestate, computed through the device of a “notional
partition” just before his death, would devolve according to the Succession Act, which gave an
equal right to the first class female heirs – daughters, widows and mother19. But the Act retained
coparcenary system in respect of ancestral property; therefore, the share of female heirs was not
equal to male heirs.
Thus, if a Hindu male dies leaving a son and a daughter then according to the explanation
attached to Section 6 of the Act, there will be deemed partition just before the death of the person.
In this “notional partition” the father and son share equally and each gets half of the property.
Again father’s half share shall be equally divided between son and daughter as Class-I heirs. In
effect, therefore, the daughter gets one fourth of the property, while the son gets his own half from
the deemed partition as a coparcener and an additional half from the share of his father which will
be in total three-fourth of the property. Now, this inequality has been removed through coparcenary
status to the girl. But the question arises how much the actual scenario be changed? As the
Amendment will only benefit to those women who have taken birth in families having ancestral
property. Similarly, there is no precise definition of ancestral property20. Keeping in view the fact
that families have long since been fragmented and the joint family system is on the decline it is not
possible to comment that to whom this law will benefit. Another limitation is that it does not apply
to self-acquired property. However, the bulk of property and wealth at least in urban areas, which
comes from modern economic investments and government services etc. falls outside the purview
of joint family property and thus unaddressed by this law.
Justice cannot be secured for one category of women at the expense of another as the
position of the mother and widow stays same. They, not being a member of the coparcenary will
not get a share at the time of notional partition. The mother and widow will be entitled to an equal
share with the class I heirs only from the separate share of the deceased computed at the time of
notional partition. In effect the actual share of the mother and widow will decrease because their
shares depend upon the shares of their respective predeceased son and husband which they get
after notional partition.
To give equal right in dwelling house, Section 23 has been deleted which was denying a
married daughter the right to residence in an inherited parental home unless she is widow, deserted
or separated from her husband and not to claim partition of the same in any circumstances. Another
drawback of this section was that the word ‘family’ was not defined which made this section open
17
Section 6(3); (The coparcenary property of a Hindu male who dies after the commencement of the Act without
leaving behind him any female heirs (or male heirs who claim through certain female relatives) will devolve upon the
remaining male coparceners equally. This is something called survivorship. It is an exception to the general rule of
succession).
18
Section 6(4); (the doctrine of the pious obligation, under which the coparceners were bound to honour the debits
incurred by the father, grandfather or great grandfather)
19
Section 6 and Schedule I of The Hindu Succession Act, 1956
20
Generally when a property is passed on for generations as inheritance from forefathers to the successors is said to
be ancestral property.

8
for judicial interpretations21. Now by this Amendment Act, a married daughter has the right to
residence as well as partition of the dwelling house. The positive aspect of this change is that it will
make women confident, self dependent etc. and women facing domestic violence will have some
place to go not on the mercy of others but as a matter of right. The negative aspect of this
Amendment is that it may increase the problem and burden of aged parents because it will be
difficult for them to reconcile between the interests of son and daughter. This will also increase the
use of testamentary freedom. Another problem which may arise from the side of in-laws is demand
from women to claim her shares in parental properties. Since husband22 is her guardian it would be
very difficult for her to choose between the wishes of husband and protection of parental home. If
she leans towards jointness of parental property she may have to suffer various practices of
domestic violence such as cruelty, bride burning etc. This right of daughter may be misused in
cases of uneducated and rural daughters as they may be castigated by tricksters on the name of
marriage for property.
Apart from this, in ancient Indian culture the tradition of Kanyadan was supported with the
reason that by marriage a girl left her paternal home forever therefore, Kanyadan was a form of
gift in compensation of girl’s interest in the paternal property. But gradually it has taken the form
of dowry, a social evil. The groom’s party often demands a complete inventory of ornaments,
clothing, cash, bonds, utensils and other property that will “accompany” the bride, before the
marriage proposal is accepted. This is regarded as the daughter’s share in her family inheritance.
Henceforth, her husband must accept all responsibility for her economic needs23. Now, the question
arises that when she is an equal partner in the ancestral property then who will pay the dowry? The
expectation that this will curb dowry system is blurred but it may fuel the vices of female
infanticide and foeticide. In that case it would be a double jeopardy for women. Earlier she had to
face cruelty of in- laws in the name of dowry and now she will have to face ill relationship with
paternal home. Moreover, like cases of inheritance it is not clear whether sisters will actually claim
their shares in the property or sacrifice it in the name of maintenance of good family relationship.
Next Amendment of utmost importance is omission of Section 24 which dealt with the disability
of a widow of a predeceased son, the widow of a predeceased son of a predeceased son or the
widow of a brother, to succeed to the property in case of such widow’s remarriage. By the deletion
of section 24 now these widows will become entitle to get their share even after remarriage. But
this facility is available only to the categories of heirs stipulated therein and what about the
condition of deceased’s widow, she will have to remain widow for ever to get succession in her
husband’s property otherwise she would lose her share. The unlucky widow has no right to lessen
her sorrow and pain while the titular female heirs are in better position. Is it not violation of her

21
For judicial interpretation of section 23, see cases Janakimmal (2003) 1 ILD 869 Mad; Sitaben Vs Bhanadahai
Madaari Bhai Patel, AIR 2002 Guj. 376; Jayamma Vs Muniyamma, 2000, AIHC 4012, Mad; Geeta Sekhar 2001,
AIHC 3264;Narasimhamurty Vs Susheel bai, AIR 1996 SC 1826. For critical analysis of judicial decisions see
C.S.Raghu Raman et al, ‘Legal Rights of Female Heirs in the Dwelling House Under Section 23 of the Hindu
Succession Act, 1956’ (2005) 6SCC (J) p 18-25
22
Under Hindu law daughter’s husband is not considered a member of parental joint family, therefore as per laws he
can’t live in his wife’s parental house without partition. In this concern Section 44 of Transfer of Property Act,
1882 is considerable, which says –
“Where one or two or more co-owners of immovable property legally competent in that behalf
transfers his/her share of such property or any interest their in, the transferee acquires as to such
share or interest, as far as is necessary to give effect to the transfer, the transferor’s right to joint
possession or other common or part enjoyment of the property, and to enforce a partition of the
same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or
interest transferred. Where the transferee of a share of dwelling house belonging to an undivided
family is not a member of the family, nothing in this section shall be deemed to entitle him to joint
possession or other common or part enjoyment of the house”.
23
Benjamin Walker: Hindu World an Encyclopedic Survey of Hinduism, London, Vol.I, 1968, P.290.

8
right to life? Is it not against the principle of equality? Does it not promote discrimination with in
gender itself?
Another Amendment is, omission of Section 4(2) which provided that “for the removal of
doubts it is hereby, declared that nothing contained in this Act shall be deemed to affect the
provisions of any law for the time being in force providing for the prevention of fragmentation of
agriculture holdings or for the fixation of ceilings or for the devolution of tenancy right in respect
of such holdings.” The effect of such deletion being that the deeming fiction has ceased to exist
and the Act will thus become applicable to such holdings also24 and now the daughter will get
equal share in the agricultural land. At a glance it seems a liberal step towards gender equality but
its social and economical impact is likely to be a destructive one. Practically, the management of
agricultural land is not possible for a stranger (daughters in laws or husband). Permanent residence
and prevention of fragmentation of agricultural land are necessary conditions of farming. It may be
possible that in lack of both two requirements partition and sell becomes a preferred choice which
eventually attacks the jointness of family, society, social coherence, rural-cultural and traditional
depositories, and finally affects the concept of Vasudhava Kutumbakam25.
Section 30 of Hindu Succession Act, 1956 has been slightly modified by inserting ‘her’ and
thus recognizing her right to dispose-off property like men. This section allows any Hindu to
dispose off his property including his share in the joint family property by will. This section can
and has been used to disinherit women by testament. The Amendment, therefore, by itself does not
offer much more to Hindu women but it has brought women at par with men by recognizing her
right to dispose off the property to which she is capable of disposing off. It is submitted that this
section should be amended and Hindu’s right to dispose off his property should be restricted only
up to a maximum of 1/3 of his property as in Muslim law.
The implication of this Amendment may be far reaching because now women can become
Karta of the joint family and thus it abolishes the age old rift between son and daughter on the
issue of responsibility. It also undermines the concept of ‘paraya dhan’ i.e. after marriage daughter
belongs only to her husband’s family. This change will increase self confidence, individual dignity,
social status and also help in changing concept from entity of ‘status’ to ‘contract’ and in this way
give her better bargaining power for herself in both parental and marital families. Another positive
aspect of this Amendment is that the equal share of women in agricultural holdings etc. may help
in eradicating poverty or risk of poverty not of women in particular but family in general too. It
may also help in improving social, political and economic life of women and thus empower them.
The negative aspect of this Amendment is that the women who own the land are benefitted by this
but those who do not own either a dwelling house or a piece of land will not reap any benefit out of
this Amendment. Hence the legal experts are in a dilemma: whether this Amendment for gender
justice and gender equality is a myth or reality?
The Amendment is not at all well throughout and can put women against each other in
comparison to the other communities. Why do only Hindu women need equality in succession and
why not Muslim women?26 The exercise undertaken in the manner will only reinforce the system
24
S.A.Desai, Mulla’s Hindu Law, Vol.II, Lexis Nexis, Butterworths, New Delhi, 2007, p300
25
The entire humanity is but one family
26
See generally, Werner Menski, ‘Recent Developments in the Uniform Civil Code debates in India’, 9 German Law
Jounal, No.3,March 2008; In Mohammad Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945, Chief Justice of
India Y.V. Chandrachud observed that,"A common civil code will help the cause of national integration by removing
disparate loyalties to law which have conflicting ideologies"; In Sarla Mudgal v. Union of India AIR 1995 SC 153
Justice Kuldip Singh also opined that Article 44 has to be retrieved from the cold storage where it is lying since 1949.
The Hon’ble Justice referred to the codification of the Hindu personal law and held,

"Where more than 80 percent of the citizens have already been brought under the codified personal law there is no
justification whatsoever to keep in abeyance, any more, the introduction of the ‘uniform civil code’ for all the citizens
in the territory of India."; Again in a recent case i.e. John Vallamattom v. Union of India AIR 2003 SC 2902, the
Constitutional Bench of the Apex Court held that "We would like to State that Article 44 provides that the State shall

8
of separate and discriminatory personal laws. Again in Class I, female heirs on the part of the
daughter have been added. They are son of a pre-deceased daughter of a pre-deceased daughter;
daughter of a pre-deceased, daughter of a pre- deceased; daughter of a pre- deceased son of a pre-
deceased daughter; daughter of a pre- deceased daughter of a pre- deceased son. Previously these
female heirs were in Class II. It is notable that they have been substituted from Class II to Class I
but their names still exist at their previous place resultantly they are heirs in both the categories.
This inconsistency must be considered as a serious future problem.
The issue of gender justice is not only a legal issue but social too, law can operate only through
the medium of society27and any attempt for this purpose will not succeed without social support.
No law can exist or achieve its purpose especially in Indian context without public support. The
example of Dowry Prohibition Act, 1986 and Child Marriage Restraint Act, 1929 is considerable
one.
Conclusion:
The women empowerment and gender justice wave is a common phenomenon of modern
democratic world. It is receiving a high degree of popularity in all the societies but it must be
implemented keeping in view social concerns and with the help and support of each and every
component of society. A common feature in a number of approaches, which have gained increasing
popularity in this century, is the concern of law in relation to society and law is a reflection of
people’s spirit. In this reference if we analyze the present Amendment Act, the interrelation
between law and its social impact is quiet complex. Actually it doesn’t support in vanishing gender
inequality but probably will increase social disorganization. It is not much more helpful in
advancement of women’s position in the society but this right of daughter to inherit property is a
remarkable and revolutionary step towards gender justice and empowerment and actual result,
ramifications and repercussions are yet to go through the litmus test of social actions. One thing
which is very much clear that effect of this Amendment Act will vary from fact to fact and
circumstances to circumstances. For the betterment of the Hindu Succession (Amendment) Act,
2005 and empowerment of women through this Act following measures may be suggested:
1. To make changes made in section 4(2) a reality, it is suggested that state should also make
necessary change in their respective land laws.
2. Restriction should be imposed on the rights of parents to dispose of their self acquired
property from disinheriting daughters and widows. Alternatively, Hindu’s right to dispose
off his property should be restricted only up to a maximum of 1/3 of his property as in
Muslim law.
3. In order to save aged parents from embarrassing situations it is suggested that both sons
and daughters should be barred from seeking partition during the life time of their parents
if the family has only one dwelling house.
4. Changes made in Class I and Class II heirs should be revisited in order to remove the
doubling of the heirs in both Classes.
5. The word ‘Mitakshara’ should be removed to avoid all sorts of complexities which make
the right of daughter compatible to the rights and shares of other Class I female heirs.
6. Efforts should be made to increase awareness of laws through legal literacy programs and
education.
7. Role of civil societies and NGO’s should be recognized for better implementation of law.

endeavour to secure for all citizens a uniform civil code throughout the territory of India It is a matter of great regrets
that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil
code in the country. A common civil code will help the cause of national integration by removing the contradictions
based on ideologies."
27
Montesquieu in “L’Espirit des Lois” quoted in Dias, Jurisprudence, Butterworths, New Delhi, 1944, p 421.

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8. Law enforcement machineries should be sensitized about the better implementation of laws
in letter and spirit.
9. All other discriminatory laws should be removed to bring gender parity.
10. Public interest lawyers should come forward for social and legal aid to women seeking to
assert their rights.
11. An all round change in mind set of both male and female is required.
12. Similar change should also be made in Muslim personal laws and necessary amendment
must be made by deleting section 2 of the Shariat Act, 1937.