Friday, February 25, 2011

WOMEN'S RIGHT TO PROPERTY


In this Post I shall briefly explain the property rights of women under the Hindu law. There are four stages here, to wit, pre-1937, 1937-1956, 1956-2005 and post-2005. 


            In theory, in the ancient times, the woman could hold property but in practice, in comparison to men’s holding, her right to dispose of the property was qualified, the latter considered by the patriarchal set up as necessary, lest she became too-independent and neglect her marital duties and the management of household affairs. This was the situation prior to 1937 when there was no codified law. The Hindu Women’s Right to Property Act, 1937 was one of the most important enactments that brought about changes to give better rights to women. The said Act was the outcome of discontent expressed by a sizeable section of society against the unsatisfactory affairs of the women’s rights to property. Even the said Act did not give an absolute right to women. Under the said Act a widow was entitled to a limited interest over the property of her husband – what was to be termed as Hindu widow’s estate.  The Act was amended in 1938 to exclude the widow from any interest in agricultural land.


            The Hindu Succession Act, 1956 introduced many reforms and it abolished completely the essential principle that runs through the estate inherited by a female heir, that she takes only a limited estate. The Supreme Court put a lot of controversy at rest by holding that the woman becomes the absolute owner under Section-14 of the Hindu Succession Act, 1956. The object of Section 14 is two-fold : (1) to remove the disability of a female to acquire and hold property as an absolute owner and (2) to convert the right of woman in any estate held by her as a limited owner into an absolute owner. The provision was retrospective in the sense that it enlarged the limit of the estate into an absolute one even if the property was inherited or held by the woman as a limited owner before the Act came into force. Any property acquired under the 1937 Act held in capacity of a limited owner was now converted to her absolute estate.  The Hindu Succession Act, 1956 abrogates all the rules of the law of succession hitherto applicable to Hindus whether by virtue of any text or rule of Hindu law or any custom or usage having the force of laws in respect of all matters dealt with in the Act.  Therefore no woman can be denied property rights on the basis of any custom,  usage or text and the said Act reformed the personal law and gave woman greater property rights. The daughters were also granted property rights in their father’s estate.


            Under Section 8 of the Hindu Succession Act, 1956 the property of a male Hindu dying intestate (that is, without leaving any testamentary instrument like will, settlement etc.,) shall devolve on his son, daughter, widow, mother, son of a predeceased son, daughter of a predeceased son, son of a predeceased daughter, daughter of a predeceased daughter, widow of a predeceased son, son of a predeceased son of a predeceased son,  daughter of a predeceased son of a predeceased son, widow of a predeceased son of a predeceased son. Thus female heirs were granted property rights in the estate of the deceased male Hindu. 


            The above said Section applies to the self acquired property or the separate property of a male Hindu. 


            However Section-6 of the Act clearly states that in the case of joint family property, known as coparcenary property, the interest of a male Hindu, on his death,   would devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the above said provision. Coparcenary consists of grandfather, father, son and son’s son. However, if the deceased had left him surviving a female relative (daughter, widow, mother, daughter of a predeceased son, widow of a predeceased son, daughter of a predeceased son of a predeceased son, widow of a predeceased son of a predeceased son) the interest of the deceased in the coparcenary shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. For example, A (who had an interest in the coparcenary property) dies leaving behind him his 2 sons B & C and a daughter D. When he was alive, B & C (sons) were members of the coparcenary and D (daughter) was not a member of the coparcenary.  On the death of A,  his daughter D will get only 1/3 share in the 1/3 share of her father in the coparcenary property. It means the sons B & C will get 1/3 +1/9 each where as the daughter D will get only 1/9 share in the property.


            Under Section 23 of the Hindu Succession Act, 1956, where a Hindu intestate has left surviving him or her both male and female heirs and his or her property includes a dwelling house, wholly occupied by members of his or her family, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective share therein; but the female heir shall be entitled to a right of residence therein; Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by, or has separated from, her husband or is a widow.


            No doubt, the above provisions of  the Hindu Succession Act, 1956 are gender discriminatory. To remove the said gender discriminatory provisions the Hindu Succession (Amendment) Act, 2005 was enacted and the said Act came into force on 9th September, 2005 and it gives the following rights to daughters:
       
     In a Joint Hindu family 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 rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu coparcener shall be deemed to include a reference to a daughter of a coparcener:
          
      Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and  (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.


       The above mentioned provision under Section 23 of the Hindu Succession Act, 1956 relating to right of residence in dwelling houses has been omitted under the Hindu Succession (Amendment) Act, 2005.


       Thus gender discrimination has been removed to a larger extent by the 2005 Act. Now, daughters can claim equal right in the self acquired/separate property and also coparcenary property left by their father. 

-         P.RAJENDRAN  http://www.prajendran.com/

Monday, February 14, 2011

INTER - CASTE MARRIAGE

     When persons belonging to different castes marry, what happens to their caste status?  What will be the caste status of their children?  Whether a woman belonging to a forward community and marrying a Scheduled Caste/Scheduled Tribe/OBC citizen becomes entitled to claim reservation under the SC/ST/OBC quota?   
The issue "If   a   woman   who   by   birth   belongs   to   a   scheduled   caste   or   a  scheduled tribe marries to a  man belonging to a  forward  caste,      whether on marriage she ceases to belong to the scheduled caste  or the scheduled tribe?" came up for consideration before the Full Bench of the Bombay High Court in Rajendra Shrivastava   vs. State of Maharashtra, (2010) 112 Bom LR 762 and the Full Bench held as follows:- 

 "When a woman born in a scheduled caste or a scheduled tribe marries  to a person  belonging to  a forward  caste,  her  caste by birth does not change by virtue of the marriage. A person born as a member of a scheduled caste or a scheduled tribe has to suffer from  disadvantages,  disabilities  and  indignities  only  by  virtue  of        belonging   to   the   particular   caste   which   he   or   she   acquires  involuntarily on birth. The suffering of such a person by virtue of caste is not wiped out by a marriage with the person belonging to  a   forward   caste.   The   label   attached   to   a   person   born   into   a   scheduled caste or a scheduled tribe continues notwithstanding  the   marriage.   No   material   has   been   placed   before   us   by   the    applicant   so   as   to   point   out   that   the   caste   of   a  person   can   be  changed either by custom, usage, religious sanction or provision of law."
The Hon'ble Supreme Court of India in Rameshbhai Dabhai Naika   Vs State of Gujarat & Others   ( CIVIL APPEAL NO.    654     OF 2012-  Decided on January 18, 2012) was pleased to endorse the above view of the Full Bench Judgment of the Bombay High Court.  The Supreme Court was also pleased to observe that the view   expressed   earlier by the Supreme Court in  Valsamma  judgment that   in   an   inter-caste   marriage   or   a   marriage   between   a   tribal and   a   non-tribal   the   woman   must   in   all   cases   take   her   caste from   the   husband,   as   a   rule   of   Constitutional   Law   is   a proposition, the correctness of which is not free from doubt."
However, the question is: Whether a woman marrying a Scheduled Caste/Scheduled Tribe/OBC citizen becomes entitled to claim reservation under the SC/ST/OBC quota?  The answer is: No. The Supreme Court of  India has held that a candidate who had the advantageous start in life being borne in a forward community and had march of advantageous life but is transplanted in backward class by adoption, marriage or conversion does not become eligible to the benefits of  reservation.
What will be the caste of the children? The question of the status of a child born to a scheduled tribe mother from a forward caste father came up for consideration before the Hon'ble Supreme Court of India in Rameshbhai Dabhai Naika    Vs State of Gujarat & Others   ( CIVIL APPEAL NO.    654     OF 2012-  Decided on January 18, 2012) and the Supreme Court held as follows:-

"In an inter-caste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the  inter-caste  marriage   or  a  marriage   between   a  tribal   and  a non-tribal the husband belongs to a forward caste.   But by no means   the   presumption   is   conclusive   or   irrebuttable   and   it   is open   to   the   child   of   such   marriage   to   lead   evidence   to   show that he/she was brought up by the mother who belonged to the scheduled caste/scheduled tribe. By virtue of being the son of a forward caste father he did not have any advantageous start in life   but   on   the   contrary   suffered   the   deprivations,   indignities, humilities   and   handicaps   like   any   other   member   of   the community to which his/her mother belonged.  Additionally, that he was always treated a member of the community to which her mother   belonged   not   only   by   that   community   but   by   people outside the community as well.   In the case in hand the tribal certificate has been taken away from the appellant without adverting to any evidences and on  the  sole  ground   that   he  was  the  son  of  a  Kshatriya father. The   orders   passed   by   the   High   Court   and   the   Scrutiny Committee, therefore, cannot be sustained. The orders passed by the High Court and the Scrutiny Committee are, accordingly, set aside and the case is remitted to the Scrutiny Committee to take a fresh decision on the basis of  the evidences that might be   led   by   the   two   sides. "
The above mentioned decisions of the Hon'ble Supreme Court of India provide the answers to the questions mentioned at the  beginning of this post.
                           ------                                       


-P. Rajendran   www.prajendran.com

Thursday, February 10, 2011

CAN A FOREIGN CITIZEN OWN PROPERTY IN INDIA?

           Can a foreign citizen hold any immovable property in India? This is the question often raised by Non Resident Indians.  Several Indians owning property in India and  desirous of settling their property in favour of  their sons, daughters and grand children  who are citizens of another country also raise this question quite often.
           Section 31 (1) of the Foreign Exchange Regulation Act, 1973 categorically states that no person who is not a citizen of India shall, except with the previous general or special permission of the Reserve Bank of India,  acquire or hold or transfer or dispose of by sale, mortgage, lease, gift, settlement or otherwise any immovable property situate in India.  The only exception is acquisition or transfer of any such immovable property by way of lease for a period not exceeding five years.   The dictionary meaning of the word “hold” as given in The Shorter Oxford English Dictionary  is “ to have or keep as one’s own; to own as property; to be in possession or enjoyment of”. Therefore it is clear that a foreign national cannot hold any immovable property situate in India whatever is the means by which the said property comes to him.
         Now the question is: If some one purchases any property in India in contravention of the said statutory provision, will he acquire a valid title to the property?  The above said Section 31 (1) does not provide that if some one purchases any property the title therein does not pass to him.  What the Act provides is that if a person contravenes Section 31 and some other Sections, he can be penalized under Section 50 and can also be prosecuted under Section 56.  However there is no provision in the Act which makes transaction void or says that no title in the property passes to the purchaser in case there is a contravention of the provision of Section 31 (1).  Section 63 contains a proviso regarding confiscation of certain properties but it does not contain any provision for confiscation if there is a breach of Section 31 (1).  Therefore the property purchased or acquired in any manner whatsoever in contravention of Section 31 (1) is also not liable to confiscation. It is therefore clear that if a person contravenes the provisions of Section 31 he can be penalized under Sections 50 and 56, but it will not invalidate the passing of title to the purchaser of the property and he can have a valid title to the property even if there is a violation of the provisions of the Foreign Exchange Regulation Act and it is for the concerned authorities to take action against him if there is any violation of the said Act.
- P.Rajendran http://www.prajendran.com/