Conclusion

After Independence, a number of legal measures were enacted to improve

the standard and quality of the life of women. The Indian Constitution, taking
inspiration from the social reforms of the 19th century, has guaranteed perfect
equality and special protection to women. Equality to all citizens is guaranteed by
Article 14 before the law or the equal safeguard within the territory of India.
Article 15(1) forbids the state from discriminating against any citizen on grounds
only of religion, race, caste, sex, and place of birth or any of them. Inspite of all the
legislative measures and reform movements, the situation of Hindu and Muslim
women today, especially regarding their property rights is still dismal.

Property rights are a universal phenomenon throughout the world. Any

tangible or intangible thing owned by a person is property. Property covers both
personal property (a car, purse etc.) and real ancestral property (land). The property
also concerns the purchase and sale of residential and commercial real property,
including land sale contracts, deeds and liens. A woman’s status to a large extent is
determined by her right to possess and own property and to dispose it off according
to her will. The perfect and complete individuality of the woman is manifested in
the most striking manner in the matter of property.

The First Chapter introduces the topic and the area of study by focussing
upon the property rights of Hindu and Muslim women under four categories,
which are married, unmarried, widow and divorced/deserted. The study indicates
the specific conditions to understand property rights in different situations. Along
with the introduction the chapter also focuses on methodology and significance of
this study. The methodology of the research includes the sample size, sampling
method as well as methods and techniques used for the data collection. And the
hypotheses and objectives are also discussed in this research. In all, 200 women
respondents from Hindu and Muslim Communities in Rajouri district were selected
for the study.

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 The Chapter Second, “Legal and Customary Rights of Hindu Women in
India and in the State of Jammu and Kashmir (J&K)” discussed the property rights
of Hindu women. The two Schools of Hindu religion i.e. Mitakshara and
Dayabagha are dealt with in the chapter. The Dayabhaga School prevailed in
Bengal and Assam. The Mitakshara School prevailed in the whole of India except
Bengal and Assam. The joint property did not pass by inheritance in the
Mitakshara School but to those who live longer than others. In the Dayabagha
School the rights to ancestral property accrue only after the death of the person
who was in possession of it. The stridhan as given to women / bride in the form of
gifts from relatives, strangers, and property acquired by self-exertion and
mechanical arts, such as dancing, singing or by employment is also discussed in
this chapter.

To ameliorate the position of women different laws have been made in

India and in the state of Jammu and Kashmir, in regard to property rights, like The
Hindu Succession Act of 1956, The Hindu Marriage Act, 1955, The Dowry
Restraint Act 1960, The Dowry Prohibition Act, 1961, The Hindu Widow’s
Remarriage and Property Act, 1989 and The Hindu Adoptions and Maintenance
Act, 1960. All these Acts are discussed in detail in the Chapter.

The Hindu Succession Act, 1956 played an important role in the history of
Hindu Law. Under the Section 14 of this Act, a female Hindu will be the full
owner of her property, whether acquired before or after the commencement of this
Act. From the beginning of The Hindu Succession (Amendment) Act, 2005, in a
joint Hindu family ruled by the Mitakshara law, the daughter of a coparcener by
birth become a coparcener in her individual possession in the same way as the son;
have the same rights in the coparcenary property as she would have had if had been
a son; and be subject to the similar liabilities in respect of the said coparcenary
property as that of son. But in the State of Jammu and Kashmir the Hindu
Succession Act 1956 is still not amended.

The Hindu Marriage Act provides opportunity to Hindu women to get

divorce from the husband. Under this Act, the terms and conditions to get divorce
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and alimony are given. The maintenance of deserted and widow women are under
the Adoption and Maintenance Act, 1960 and a widow woman can go for
remarriage under The Hindu Widow’s Remarriage and Property Act, 1989.

“Muslim Women’s Rights in Legal and Personal laws in India and in

Jammu and Kashmir (J&K) State” is Chapter Third which deals in detail with the
sources of Muslim law, The Muslim Personal Law i.e., The Shariat Act, 1937,The
Dissolution of Muslim Marriages Act,1939 and The Muslim Women (Protection of
Rights on Divorce) Act,1986.

Muslim Law is derived from two sources i.e., Primary Sources and
Secondary sources. Primary sources are; Quran, Sunna, Ijma and Qiyas. Quran is
the first source of law. The term Sunna referred to the policy and administration of
the Caliphs. When Quran and Sunna could not supply any rule of law for any
problem, a new law was laid down i.e., Ijma. The Qiyas is the fourth source of law
and is utilized for extending the law of text. The Qiyas as a source of law is
ascribed the lowest position: it is considered to be subsidiary and subordinate to
the Quran, the Sunna, and the Ijmas.

The Secondary sources are; Customs, Judicial Decisions and Legislation. A

customary law exists in Islam either because it has got the approval of the Prophet
or, has been incorporated in Ijma. Muslims in India also follow Customary laws
due to the influence of local Hindu Communities. Muslim law is no exception to
the judicial practice and therefore, a point of law decided by the Supreme Court or
a High Court of India became a ‘source of law’. In Islam it is generally believed
that God alone is the Supreme Legislator and no other agency on earth has
authority to make laws. This belief is so deep-rooted that even today; any
legislative modification is treated as an encroachment upon the traditional Islamic
law. However, there are certain Acts which modified or laid down principles of
Muslim law. The significant enactments on Muslim Personal Law in India are:-The
Muslim Personal Law (Shariat) Application Act, 1937, Dissolution of Muslim
Marriages Act, 1939 and Muslim Women Protection of Rights on Divorce) Act,
1986 and in the State of Jammu and Kashmir (J&K) they are The Jammu and
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Kashmir Dissolution of Muslim Marriage Act, 1999 and The Jammu and Kashmir
Muslim Marriages Registration Act, 1981.

The Muslim Personal Law (Shariat) Application Act, 1937 operates

throughout India and the Jammu and Kashmir Muslim Personal Law (Shariat)
Application Act, 2007 in Jammu and Kashmir where the parties are Muslim. At
present, India is posed by the actuality that the Muslim law of intestate succession
gives a son twice the share of a daughter, and a brother of the full, consanguine
blood twice that of corresponding sister, a widower twice a widow’s share, and a
father in certain circumstances twice that of a mother.

A woman who is the wife of a person according to the Muslim law shall be
entitled to obtain a decree for the dissolution of her marriage under the Jammu and
Kashmir Dissolution of Muslim Marriage Act; 1999.The conditions for the divorce
are explained in this chapter. Registration of Muslim Marriages and for the matters
associated with the marriages are under the Muslim Marriages Registration Act,
1981 and to guard the rights of Muslim Women who have been divorced by or
have obtained divorce from, their husband and to provide for matters associated
therewith are under the Muslim Women (Protection of Rights on Divorce) Act,
1986. In J&K, customs were prevalent and Muslims were governed by them in
matter of inheritance of property. These denied women their rights to property as
enshrined in the Shariat Act, 1937. In 2007, The Act was passed in J&K.

The awareness of property rights and inheritance of the respondents are

discussed in the Fourth Chapter,” Property and Inheritance Rights of Hindu and
Muslim Women in Rajouri District”. It is found that among Hindus, 45% females
are fully aware about their property rights like boys in their parental property, 84%
male think so; 19% females are unaware; and 36% females and 16% males have
partial awareness. In case of Muslims, 64% females and 100% males are aware
about the property rights of females in their parental property, 12% females are
unaware and 24% are partially aware.

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 It is also found in the study that among Hindu respondents, only 6%
respondents got the full parental property because they are the only daughters of
their parents, 18% respondents got only a portion of land without any proper
division of land, and 76% respondents did not get any parental property. In case of
Muslim respondents, only 3% respondents got the full share of father’s property;
7% respondents got only a portion of land and 90% respondents did not have any
parental property. Brotherlessness is the only situation in which women received
natal family property.

The reasons for not claiming Property rights are different. In case of Hindu
women, majority of the respondents said that it was their brother’s right and it will
also lead to dispute if they ask for their share. It was also found that most of the
respondents said that they never thought about this matter. Besides this, those who
were self-sufficient did not claim their share of property from the natal home. In
all, 9% respondents also remarked that dowry itself is a property. In case of
Muslim women, majority of the respondents said that they never thought about the
right over the parental property and it is also not the custom. 11% respondents
were of the view that dowry itself is property, 4% said asking for parental property
leads to the disputes among brothers and sisters. In general, they feel that the
parents already spent lot of money on marriage and other rituals; therefore it is not
justified to claim their share in property. The other reason given was that they go to
another house after the marriage, and their brothers have to take the responsibilities
of looking after the parents.

The general perception of Hindu male members about the reasons for not
claiming property rights are that, 8% said brothers have right to it, 32% were of the
view that dowry itself is property, 16% were of the view that if parents had given
better education to their daughters and made them self-sufficient to stand on their
feet in the society, then there is no need of property, 12% said if girls claim over
the parental property, it would lead to the disputes among the brothers and sisters,
24% of them view that giving property to daughters is not custom and 8% male
members remarked that sometimes because of hesitation daughters do not claim

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over property rights.

The general perception of Muslim male members was that, 4% said usually
daughters do not think about the parental property, 12% remarked daughters feel
it’s not good, 12% said if dowry is given then there is no need of parental property,
8% said if parents made their daughters self-stand, then there is no reason for
claiming over parental property, 20% remarked giving property to daughters leads
to disputes, 8% said the girl herself is property, 28% said it is not customary to
give parental property to daughters and 4% member remarked that because of
hesitation daughters do not claim over parental property. Few Case Studies of
Hindu and Muslim women who got their parental property are also discussed in
this Chapter. In general the case studies show that only brotherless women get
whole parental property because they live with their parents for their care, few
women get a small portion of parental property without proper division of property
as a gift from parental side and some women get in case of desertion without any
legal documentation.

“Marriage Patterns of Hindu and Muslim Communities in Rajouri District

with Special reference to Dowry and Mehr as Women’s Property” is Chapter Fifth
of the present study. The chapter throws light on the customs of marriages and the
dowry among both the Hindus and Muslims and mehr only among Muslims during
marriages. The different form of marriages among Hindus and Muslims are also
discussed in this chapter. The study shows that the Hindu marriages are
solemnized by performing Kanayadan, Saptapadi and Sindoordana and Muslims
marriages by Nikah.

The custom of dowry among Hindu and Muslim marriages is also

discussed in this chapter. The institution of dowry is prevalent among Hindus
throughout India. The Muslim community is also engulfed by the dowry system as
the Hindus. The different reasons that are found for the dowry practice are; to
increase the status due to custom, to marry in rich family, as a way of taking
property and to live happily. Majority of Hindu and Muslim respondents view
custom as the main reason for dowry. Only 13.6% Hindu and 11.2% Muslim
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respondents regard dowry as a form of women’s property. Among Hindus, 60%
respondents and among Muslims 53.6% respondents support dowry. It shows the
great impact of Hindu customs on Muslims, even though Muslims try to follow
their own laws.

Marriage among Muslims cannot be performed without mehr. It is the

money or material goods which a husband must give to the wife to recognize her
majesty as his wife. It is found in the research that the mehr is split into two parts;
prompt and deferred. Every Muslim female respondent received prompt mehr in
the shape of jewellery at the time of marriage and only a only some respondents
received deferred mehr after the marriage. However, majority of the respondents
are still waiting for their deferred mehr. The study also revealed the increase in
amount of money and jewellery with time. A few hundred rupees became lakhs
and jewellery changed from only silver to mainly gold. Mehr which is exclusively
a woman’s property and mandatory according to Islamic law is given partially in
reality. Therefore, it does not in reality become women’s property rights.

The Chapter Sixth, “Divorce, Widowhood and Women’s maintenance

among Hindus and Muslims in Rajouri District” deals with the divorced and
widow women in Islamic and Hindu law. It is found during the research that the
custom regarding what a widow might do and what she might not vary from
community to community. Among Hindus, a widow has to face several
restrictions. She could not preside at any familial ritual; she was inauspicious and
could not be present at celebrations. Among Muslims it is found that there is no
such type of restrictions but sometimes they themselves hesitate.

As regards awareness of respondents about their legal rights, it is found that

majority of the respondents are aware about their legal rights. Further it was also
found that 35% Hindu respondents and 25% Muslim respondents said that their
husbands were in government job at the time of death, so they are getting the
pension on behalf of the husband and 20% Hindu and 15% Muslim respondents
are also doing job in the place of their husband. When the question was asked
about their rights over property, 40% Hindu and 30% Muslim respondents said that
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the property is in their own name, 25% Hindu and 45% Muslim respondents did
not get any property, and other said that the property is still not divided and is in
the name of their father-in-law. Thus it is clear that the conditions of widow’s vary
from one situation to another. The widows who are well qualified and those whose
husbands were in government job are in better condition as compared to others.
Few respondents also struggle for their rights. This shows the importance of
having property, jobs or some economic asset for women’s better condition.

In Indian society, divorce is looked down as unrespectable both among the

Hindus and the Muslims. Divorce is regarded as a failure in personal relationships.
Divorces are less frequent in India as compared to the western countries. Though,
these days it is increasing. In the State of Jammu and Kashmir, The Jammu and
Kashmir Hindu Marriage Act, 1980, was amended to provide judicial separation,
divorce, nullity of marriage and annulment of marriage to Hindus.

Muslim law recognizes a number of modes of divorce. A divorce may be

either by the husband or by the wife. Under The Jammu and Kashmir Dissolution
of Muslim Marriages Act, in 1942a Muslim wife can also sue for divorce from the
Court. Divorced Muslim women can get protection under the Muslim Personal
law, Section 125 of Criminal Procedure Code 1973 and, The Muslim Women
(Protection of Rights on Divorce) Act, 1986.

The different reasons for divorce among Hindus and Muslims are;
difference of opinion between partners, impotency, dowry harassment, physical
and mental illness and drug addiction. It is also found that the divorce rate among
Muslimsis higher than the Hindus. The divorces exist among Muslims more
frequently as there is no customarily hindrance. But among Hindus in the State of
Jammu and Kashmir the divorce is granted on the bases of The Jammu and
Kashmir Hindu Marriage Act, which was passed in 1980. However, women do not
favour the divorce. They prefer to live as deserted but not as divorcee because they
feel divorce is a great insult for them as well as for their family. The researcher
also found that the young age respondents, who are well qualified, prefer divorce
when they do not find any way to settle out with the husband. Few case studies of
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widow, divorced and deserted Hindu and Muslim women are also discussed in this
chapter.

The last chapter 7 “conclusion” summarizes the chapter and brings out the
findings of the study.

FINDINGS OF THE STUDY

The following are the main findings of the study:

Both the Hindu and the Muslim religions have different laws related to
property rights of women. The Hindus have the Hindu Succession Act, 1956 and
the Muslims have The Muslim Personal Law (Shariat) Application Act,
1937.Inspite of these Acts the general rule of succession under the Customary law
in the state of Jammu and Kashmir is that succession first goes to the direct male
lineal descendants of the last owner to the exclusion of female lineal descendants,
“excepting in the case of daughters who have been married at home, by their
fathers in their life time”. The study revealed that the customary law of inheritance
both among Hindus and Muslims in the State is heavily loaded against females as
they are not entitled to claim their share over parental property. They have been
virtually excluded from inheritance so far as immoveable estates are concerned.

The Hindu Succession Act was passed in 1956 theoretically giving Indian
women the right to equal inheritance of their parents, self acquired property, but in
the years since, its provisions have scarcely been utilized. Laws alone are not
enough to secure women’s right to property. The effectiveness of laws depends on
awareness about, the abilities to invoke, and social acceptance of them, including
to what extent cultural norms and traditions are practiced and followed instead of
formal laws. The Hindu Succession Act, 1956 was amended in 2005, related to
property rights of women exist in the India but its amendment still does not prevail
in the State of Jammu and Kashmir. The Muslim Personal Law (Shariat)
Application Act, 1937 was implemented in the Jammu and Kashmir State in 2007
as The Jammu and Kashmir Muslim Personal Law (Shariat) Application Act, 2007.
As far as the awareness of the property rights is concerned 58% females, 84%
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males among Hindus and 64% females and 100% males are fully aware regarding
property rights according to their laws. Thus regarding awareness of property
rights men are more aware than women and it is also analysed in the study that
Muslims are more aware about their property rights.

Though the law is made related to property rights but it was found from the
field that majority of women (both among Hindus and Muslims) do not think about
their rights over parental property because of the strong hold of patriarchy. These
laws are taken for granted by them. It is due to this fact that laws are not strictly
implemented. Thus, the ‘Hindu Succession Act’ and the ‘Muslim Personal law’
have not been able to bring changes in relation to giving and taking of parental
property. Besides law, there are many unwritten rules and code of conduct that
women have to abide; not asking for property is one of them.

Immovable property is generally considered as brother’s right and it is

given to the daughters only in those cases where she has no brother. In this
research certain cases of women were found who got immovable property because
they have no brother. In the research it was found that six respondents among
Hindus and two respondents among Muslims who inherited parental property are
brotherless. Few women got a portion of land because of their miserable condition.
Thus, brotherlessness was the main condition when daughters got property.

Whether the women had independent financial resources after marriage or

not, they could contribute passively by “not taking” property from their parents.
They want their natal home to remain prosperous and well endowed. They take
pride in this first home being joyful and smoothly run, and indeed draw esteem
from preserving that part of themselves. It is seen in this research that among
Hindu women majority of the respondents believe parental property to be their
brother’s right, and also view claiming over parental property leads to dispute with
brothers. Majority of Hindu male respondents view dowry itself as property and
give their daughter/ sister enough for their well-being according to their financial
condition. Among Muslim females and males majority of the respondents view
that it is not the custom to give parental property to daughters. Thus, brother’s
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right over parental property, fear of dispute and self-sufficiency and the customs
are the reasons for not claiming parental property among Hindus and Muslims.
Thus as hypothesized, their position becomes vulnerable due to lack of property
rights. The condition of widows is even more pathetic as seen ahead.

As far as the marriage rituals are concerned, Hindu marriages are

prohibited with in the same gotra but Muslims prefer marriage among the cousins
that can be parallel or cross. It is found in the research that there is more impact of
Hindu rituals of marriages on the Muslim marriages. Muslims follow more or less
similar ceremonies of Hindu marriage excepting those which do not involve sacred
puja.The main difference among the Hindus and Muslims marriages is that former
is solemnized by ‘saptabadi’ (seven round steps of fire) and latter by Nikah.

The important custom in Muslim marriage is mehr, without mehr a Muslim

marriage cannot be solemnized. Usually the prompt mehr is given at the time of
marriage in the form of jewellery and cash is put as deferred mehr. Mostly the
deferred mehr is connected with dissolution of marriage and can also be demanded
by wife at any time. Mehr is for the wife’s use and may be disposed off as she
wishes. All the respondents received jewellery as prompt mehr and put money as
deferred mehr. Respondents have two types of jewellery one is of gold and other is
of silver. The respondents between the age group of 20-30 years have only gold
jewellery. The respondents between the age group of 30-50 years have both type of
jewellery but gold is in less quantity than silver. And the respondents who are
above the age of 50 years have only silver jewellery. The respondents having
deferred mehr as less than hundred received their total mehr at the time of marriage
while others are still waiting to get their whole amount of mehr. One of the ways in
which women can empower themselves is through the Islamic right of reasonable
mehr, without fear of social consequences. It is also viewed as a way to restrict
divorce and polygamy.

The institution of dowry is prevalent throughout India.Islam never

mentions about the dowry systembut in India, the Muslim community is as much
engulfed by the dowry system as the Hindus.People give and take it in their
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marriages. It is found in this research that few respondents link dowry with
property rights in a way that since they are given dowry and a lot of expenditure is
incurred during their marriage by the family, it balances the property given to the
brothers. Still some respondents are of the view that dowry is different from
property rights as it is connected with marriage and they have little control over
dowry. On asking respondents the reason for the dowry, among Hindus 64%
females, 72% males and among Muslims74% females and 82% males told that it is
due to custom. So, custom is regarded as the main reason for giving/taking dowry.
Besides there were other reasons like the wellbeing of daughters in her in-laws
home and the status of natal family in her own. Dowry as gift along with a girl
‘kanyadan’ is considered as the most auspicious and best form of marriage. It was
therefore more common among the higher castes that were also economically
much better. In recent years as the condition of the other castes improved, it
spread to all castes and communities. In this study, it was found prevalent among
all the respondents with varying degrees.

A Hindu widow woman has the first claim and absolute right on the
property of her deceased husband. A widow under Muslim law is the only heir by
affinity who is made a primary heir by the Quran. The widow inherits 1/8th if there
are children and 1/4th if there are none. In case of plurality of widows, they share
1/8th or 1/4th equally with them. Thus both religions have granted the property
rights to the widows.

Among Muslims, the Customary law provides for the rights of a widow in
two situations, a widow with sons and a sonless widow. A widow with a male
lineal descendant is ordinarily entitled to maintenance. In the absence of male
lineal descendant and dukhtari khana nashin, widow of the deceased succeeds to a
life estate till remarriage or death, whichever falls earlier. If a widow with a
daughter survives the deceased husband, the whole of the property will devolve
upon the daughter if she is kept at home with her husband. The widow can get only
mehr on demand. A Hindu widow could inherit property but through the death of
her husband loses all the rights to perform certain rituals. But among Muslims it is

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found that there is no such type of restrictions and they are also free to marry, if
they are young.

As far as the conditions of these widows are considered, it can be said that
those who become widow before 16 years of marriage did not have good status.
The reasons are that they are only house-wives with no or little earning without
any qualification, their husbands were jobless and their children are of very small
age and are dependent on their in-laws. The conditions of those respondents who
became widow after 23 years of marriage are considerably good as compared to
those widows who became widow in the early age after marriage. This is because
their children are grown up and they have spent more years with their in-laws.The
widows who are well qualified and those whose husbands were in government job
are in better condition as compared to others. Thus it is clear that the conditions of
widow’s vary from one situation to another.

Divorce is more prevalent among Muslims than among the Hindus. Hindu
marriage is gradually becoming secularised in the modern period. It is found in the
research that the young age respondents, who are well qualified prefer divorce
when do not find any way to settle out with the husband. The major reasons both
among Hindus and Muslims for divorce/ desertion are impotency and drug
addiction. The Hindu women prefer to live as deserted but not as divorcee because
they feel divorce as great insult for her as well as for their family. As per the
maintenance is considered the Hindu women seek it through court and the Muslim
women received customarily till the period of iddat. Muslim women do not have
right to divorce according to the Muslim Personal Law and they do not go to the
Court, but largely depend upon their husbands and other witnesses if they want
divorce. The exclusion from the Criminal Procedure Code 125 to seek
maintenance has also largely curtailed their rights. It is important therefore as
mentioned in the hypothesis two and three that certain amendments in their
Personal Laws are made and there should be uniformity, atleast in Criminal
Procedures that grant women the equal rights.

It can be analysed from the above mentioned findings that women as

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daughters, wives, widows and divorced/deserted, are aware about their property
laws but never think to claim the same. Not much difference is found between both
the religions as per the claims of property rights over the parental property. No
doubt both have different property rights according to their laws but whatever be
their rights women are not customarily supposed to claim over them. As far as the
divorce is concerned Muslim women do not prefer court and the divorce is mostly
given by the husband. The divorce among Hindus is not possible without the
intervention of court. These laws are taken for granted by them. It is due to this
fact that laws are not strictly implemented.

It can be concluded from this study that some reformative steps have been
taken through the legal provisions, which give more rights to Hindu and Muslim
women than the Customary or Personal laws. However, the Muslim Personal Law
is not codified to the extent of Hindu law and in the state of J&K, it was only
recently done. A few more reforms are needed in the Muslim Personal Law to give
women rights like divorce and maintenance. Dowry and mehr provide some
support, but they are not a substitute for real property rights. Women usually do
not have control over dowry, and mehr is deferred many times or is limited to
divorce or sometime never given. From certain Case studies it can be inferred that
some women have made attempts to claim their property rights. But their agency is
largely circumscribed by the patriarchy of their caste, religion and customs.
Education, employment and awareness of legal rights will help them to utilize their
agency more effectively.

This work suggests the urgency of initiating such required changes in the
Personal Law of the Muslims so as to make them more gender just as well as to
overcome the customary laws of both Hindus and Muslims that are arbitrary. It
also pleads for implementing the statutory legal laws more effectively and for
making efforts to strengthen women’s property rights.

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