Personal laws, which often govern a woman’s rights to inherit property, are rooted in religion and are rarely gender-equal.

A woman in a white dress stands in front of a big houseImage for representation. Raja Stills/Picxy
news Law Tuesday, May 19, 2020 - 13:13

Narayani Devi was only married for three months when her husband died, and she was ousted from her marital home. In the next 40 years, with the support of her parents, she studied and earned enough money to acquire substantial property. However, when she died in 1996, Narayani’s mother’s claim to her movable and immovable property was challenged by Narayani’s late husband’s family. And under the Hindu Succession Act (HSA) of 1956, the Supreme Court handed all her properties to Narayani's husband’s nephews, to the marital family that broke ties with her. The provisions of the Act left her mother and father, who had supported her, empty-handed.

The above case – Om Prakash v. Radhachandran – is just one example of the HSA’s provisions working against the woman and her family, giving preference to her husband’s relatives. If the deceased was a man, the property would have remained within his family under the HSA’s provisions.

Citing such examples, a paper authored by the National Institute for Public Finance and Policy's (NIPFP) Devendra Damle, Siddharth Srivastava, Tushar Anand, Viraj Joshi and Vishal Trehan argues that the provisions for devolution of property under the HSA discriminate on the basis of gender. However, while these succession laws – which apply to Hindus, Jains, Buddhists and Sikhs – have been amended in the past years to make them more gender equitable, gender discrimination continues be a part of these legislations.

The basis in religion

It should be noted that the HSA applies to those persons who have died without a living will, or died ‘intestate’. In its earlier form, the HSA did not give a birthright to the daughter in the ancestral property while it did so to a son, and also excluded widows who remarried from inheriting the deceased husband’s property (section 24). In an amendment in 2005, the latter was repealed, and daughters were given an equal claim to ancestral property as sons. The Supreme Court in 2018 said that this amendment applies to daughters born before 2005. However, it will not apply if the father has died before 2005.  

Despite these attempts at making the law more gender equitable, the discrepancies as found in Narayani’s case still exist in the devolution of a male intestate’s property (section 8) and a female intestate’s property (section 15).

The HSA is not the only personal law that is discriminatory in some aspects towards women, but it is the law that applies to a majority in the country. One of the reasons behind this is that the HSA and other personal laws are rooted in religion, says a Bengaluru-based lawyer. “So naturally, the succession and property laws also flow from how the religion treats women, and their right to own property,” she says.

This table in NIPFP’s paper explains the differentiation made between a deceased man and a woman’s property in the HSA.

“In the scheme of devolution for property belonging to a woman, the husband’s heirs (which includes his natal relatives, their spouses and their children) have a higher priority than the woman’s parents and siblings. In contrast, the scheme of devolution for property belonging to a man under Section 8 does not include any of the woman’s relatives. Furthermore, the list of the husband’s heirs is so exhaustive, that in practice a woman’s parents and siblings would rarely stand to inherit property from her,” the authors of the paper point out. “For any property which belongs to a man, his wife’s natal family is never in line to inherit it,” the paper says.

Similar is the case with other personal laws. Under the Muslim Personal Law, for instance, a son gets twice the share as his sister in inherited property. A wife gets 1/8th of the share of her deceased husband’s property if she has children; and 1/4th if she doesn’t. In comparison, a husband gets 1/4th the share of his dead wife’s property if he has children, and half, if he doesn’t.

The Indian Succession Act, which allows for more equality between genders comparatively, also has some aspects which give differential treatment to women. For instance, if a Christian intestate’s father is alive, he can inherit all his property after the deceased’s widow’s share is deducted and if she has no children. But if only the intestate’s mother is alive of the two parents, and the deceased property owner’s siblings are living, then the property is shared equally among the mother and siblings of the intestate. Further, a Christian widow gets 1/3rd of the estate property, while the children get 2/3rd of it.

Other personal laws, including some followed by tribal communities, also similarly disfavour women’s landholding rights.  

What this implies for women

When women’s right to property and their property’s succession is treated differently, it has implications for women’s social security, access and independence, say civil society workers.

Dr Swarna Rajagopalan, founder of Prajnya, a Chennai-based non-profit working towards gender justice, points out that the hurdles for women to inherit property compared to men begins with patriarchy’s view of women as lesser people. 

“Investing more in a boy child becomes a way of safeguarding property and family lines. It reinforces preference for a male child, because it is a means to keep property within the family,” she explains.

Further, it also reinforces women’s dependence on men. “The inability, or lesser ability to claim property under some laws and conditions means lesser social security and working capital for women. You have to depend on the men to access the ancestral property to get a loan, for example. All a woman has is her jewelry, which she may or may not have ultimately. So much of the abuse happens because the woman is not living in a place which she can claim as her own, nor does she own a place that she can move out to,” Dr Swarna adds.

This bias against women’s right to property exists when it comes to agrarian land laws also. While under the HSA women have the right to own estate as well as agricultural land, since agriculture is a state subject, some states continue to have laws which disfavour women’s rights to hold agrarian land, points out K Santhakumari, President of the Tamil Nadu Federation for Women Lawyers.

The Uttar Pradesh Zamindari Abolition and Land Reforms Act of 1950, for instance, only allows widows, daughters and sisters to inherit agrarian land after the rights of male heirs are exhausted. And much like what happens with a female intestate’s property under section 15 of the HSA, under this UP law, the woman’s land goes back to male descendants after her death. While a daughter has equal right to inherit agricultural land from her father as her brother, it applies only if she is unmarried. The laws for agrarian land are similarly discriminatory in states like Delhi, Haryana, Punjab, Uttarakhand and Himachal Pradesh. In some cases, even when a woman does get the land, she may lose the ownership if she remarries, or does not till the land for over a specific time period.

Lawyers point out that this is because patriarchy ensures that land cultivators continue to be seen as male, and because of the belief that daughters move into another family or location after marriage, and this will lead to fragmentation of the agrarian land.

Santhakumari points out that this discrimination is often internalised by women. “In some of these states, women actually give up their right to the land off the bat so as to not lose the brotherly or fatherly affection. They themselves and the family feel that since a woman’s marriage will require more expenditure, they need not have a share in the land. Further, they also face the risk of backlash if they try to stake claim in the property because of persisting patriarchal notions around land ownership.”

The need for reform

The National Family Health Survey (2015–16) found that only 28% of women between the ages of 15 and 49 own land — either jointly or by themselves. And only 37% own a house, jointly or by themselves.

Lawyers say that things do appear to be changing and that more women are staking their claim to ancestral property, especially after the 2005 amendment of the HSA. However, there is a need to reform the existing biases in Indian laws. While there have been some attempts in the past with respect to reforming the HSA, including two now lapsed private member’s bills, they have been “piecemeal”, inadequate, and have not materialised, NIPFP’s paper argues. The authors recommend that the HSA should be made gender neutral, and for amendments to the Act to satisfy the following principles:

1. The scheme of devolution for male and female intestates must be identical

2. Natal families of men and women must be treated equally

3. Male and female relatives of an intestate must be treated equally

4. All of an intestate’s property must be treated equally; only the intestate’s relation to an heir should determine their eligibility

5. Lineage through male and female forebears must be recognised as equal

6. The only differentiator between different classes of heirs should be the degrees of separation from the intestate

Sudha Ramalingam, a senior advocate, says that there is a need to look at property through a gender lens seriously and holistically. One way to do that is to involve women in making laws for women, says Santhakumari. “The major problem is that all these laws are made by a male majority, who also tend to benefit from them. If, say, we had 33% reservation for women in the parliament, more political participation by women could possibly give us a better shot at furthering women’s right to property,” she says.

Using gender neutral language in the laws should also be done. “Replacing the words ‘wife’ and ‘husband’ with spouse for example, can be helpful. This way, the law can also be inclusive of married transgender persons,” Sudha says.

When it comes to laws on agrarian land, this policy brief by Oxfam India argues that state governments should strictly implement the HSA which gives women the right to hold agricultural land, give exclusive and identifiable land titles to women.

Finally, Dr Swarna points out that it takes time for a law to become a norm. So any sort of legal rights should be accompanied by furthering and establishing women’s social legitimacy to property as well.  

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