Women & Right To Property – Through The Prism Of Judges Mindset

Abstract

Rights of women to property, remains a contentious issue across the world to this day in patriarchal societies. Most of the countries have patriarchal structured societies offering little or no right to women in their ancestral property. In many instances even those women having absolute rights over their property face harassment from both relatives and outsiders. This paper deals with denial of property rights of tribal women by the decision makers –legislative and executive authorities.  The views of the judiciary in according property rights to women is analysed in the backdrop of two cases decided in 1996. Madhu Kishwar’s case relates to tribal women and their property rights and Masilamani Mudaliar case is on question of absolute property rights or limited right over property as per will of a Hindu woman. Along with that a recent case decided by the Supreme Court in 2022 Kamla Neti pertaining to a tribal woman’s  rights, that reiterated the judgment in Madhu Kishwar which did not accord property rights to tribal women is also analyzed. In the process of analyzing the cases, the researcher attempts to understand the mindset of the judges and also the policy makers who were all men. Realising the importance of empowering women for the holistic development of all the nations, the Universal Declaration of Human Rights, declared that irrespective of sex among other discriminations, everyone is entitled to all rights. Regarding property rights, UDHR categorically stated that property rights shall not be deprived for anyone and everyone has the right to own property individually or jointly.This article analyses the property rights of women including tribal women in India from the judges’ perspective. The research finds out as to how gender justice is decided by the judges in the backdrop of the two decided cases quoted above. In doing so the article probes the mindset of judges in according property rights to women who knock the doors of justice seeking relief. The research question that is probed is whether conditioned upbringing of judges leads to denial of women’s property rights and whether the outlook of the judges impacts a case positively or negatively in realizing gender equality. The first case that is taken up for analysis by this researcher is Madhu Kishwar v State of Bihar, in which the property rights of tribal women is sought. The majority judgment revealed the patriarchal mindset of the judges, whereas, the dissenting judgment was very inclusive. The other case taken up for analysis is Masilamani Mudaliar & ors case, related to rights of a Hindu woman, which was hailed for protecting property rights of women.  Hence the research article attempts to analyse the attitude of the judges that impacts gender equality. The judges too need to be sensitized so that they free themselves from their conditioned upbringing. Only then can tribal women enjoy all rights including property rights for equitable development.