Mishra on Women’s Right to Property in India

Archana Mishra (Jindal Global Law School) has posted Towards Women’s Equal Right to Property - Recent Judicial Developments in India on SSRN.  Here's the abstract:

This article investigates the judicial activism in developing the Indian law of succession whereby laws have been interpreted to grant more property rights to Indian women. Tribal women who had been denied inheritance right under their customary laws have been constructively interpreted by courts to grant right in their favour. Issue with regard to applicability of coparcenary claim of Hindu daughter, granted to her under Hindu Succession (Amendment) Act, 2005, has now been finally settled by the Supreme Court of India. Applying legal maxims for recognizing the right of a Hindu widow to claim partition of her deceased husband’s share in coparcenary property, in absence of definite statutory right, is another judicial development. Construction of Hanafi law to grant inheritance right to a sister in presence of daughters of the deceased shows judicial approach of uplifting the position of women even under uncodified Muslim personal law. At the same time restricting the right of a Hindu daughter to claim her coparcenary right only after a certain date when no such limitation has been fixed for male coparcener shows clear discrimination on basis of sex. Further granting preferential rights to agnates over cognates under Hindu law appears to have no justification. Even after more than a decade of passing of Constitution, the court adopts a cautious approach in getting into the constitutional validity of personal laws. With the increase in social integration, economic independence, reform movements, there needs to be a further call for the improvement of the woman's position in Indian society.