This article is written by Aadrika Malhotra of 4th Semester of Guru Gobind Singh Indraprastha University, an intern under Legal Vidhiya
Abstract
In earlier times, society was largely dominated by men and their ideologies, a trend that still finds echoes in today’s world through lingering traces of patriarchy. Elements of this patriarchal influence remain evident in various aspects of modern life. For instance, the institution of marriage often results in women leaving their parental homes to reside with their husbands. Women commonly adopt their husband’s surnames, and children typically inherit their father’s surname. Furthermore, there are households where women are discouraged from pursuing careers and financial independence, and some societies suppress women’s voices and opinions. Tragically, over the years, issues like domestic violence, dowry-related deaths, female feticide, infanticide, and exclusion from paternal property have plagued women. This discrimination against women in property and inheritance rights was particularly pronounced before the codification of the Hindu Personal Laws.
Introduction
These laws were grounded in Vedic knowledge and ancient texts like the Manusmriti. The central objective of this discourse is to scrutinize the gender-based bias prevalent in property rights and inheritance. Over time, property laws have undergone significant evolution to grant women equal entitlements to men. However, one must question whether these provisions adequately address the changing societal dynamics.
It’s evident that progress has been made in rectifying gender-based disparities, yet there is a need for ongoing reflection on whether these legal measures are sufficiently attuned to contemporary needs.
India, being a diverse nation characterized by a multitude of religions and cultural beliefs, has encountered challenges in establishing a Uniform Civil Code. Consequently, various religious communities across India continue to be governed by their distinct personal laws, particularly in matters concerning property rights. Even within these religious frameworks, further diversity exists due to the presence of sub-groups with their unique local customs, regulations, and norms related to property rights.
To elaborate, the Hindu Succession Act has codified a uniform set of inheritance rights for Hindus, Sikhs, Jains, and Buddhists. Meanwhile, Christians adhere to a different legal code, while Muslims have yet to codify their property rights. Tribal women belonging to different religions within various states follow the customary laws of their respective tribes. The Indian constitution empowers both the central and state governments to enact laws pertaining to succession.
Furthermore, states have the authority to introduce variations of property laws within the framework of personal laws. Although exceptions exist, Indian courts have typically refrained from intervening in personal laws, and they tend to avoid striking down those laws that are clearly unconstitutional. Due to the sensitive religious sentiments intertwined with these laws, the courts have been cautious about delving into matters of personal laws.
Regrettably, there is no unified body of inheritance laws in India. The inheritance rights of Indian women are influenced by an array of factors, including their religion, religious beliefs, marital status, and geographical region. Despite the constitutional assurance of equality in matters of inheritance rights, most personal laws do not fully align with this principle.
Hindu Succession Inheritance Laws
The Indian Constitution indeed guarantees equality before the law, as articulated in Article 14: “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Despite these constitutional provisions, gender-based inequalities persisted in inheritance practices.
Starting from 1956, the Hindu Succession Act has governed inheritance rights for Hindus, Sikhs, Buddhists, and Jains. Prior to the enactment of the Hindu Succession Act (HSA) in 1956, Hindus across different regions of India were governed by Hindu Canonical ‘Shastric’ and customary laws.
Consequently, different schools of thought emerged regarding succession, such as the Dayabhaga in Bengal (Eastern India), Mayukha in Bombay, Gujarat, and Konkan (Western India), Namudri in Kerala (Southern India), and Mitakshara in other parts of India. The Hindu Succession Act, following the Mitakshara school, distinguishes between individual property and joint family property (ancestral property or any property held jointly by the extended family).
Under the provisions of the Hindu Succession Act, when a Hindu male died without a will (intestate), daughters gained equal rights to their father’s individual property, but they didn’t have a claim to the joint family or ancestral property. The right to ancestral property was reserved for a group known as the “Coparcenary,” which essentially comprised male members of a family lineage. Sons were considered as part of the “Hindu Coparcenary” and thus inherited family property by birth.
Being coparceners meant that they couldn’t be denied their share in the property, and they alone could request the division of the property while older coparceners were still alive. As a result, the inheritance rights of women were severely limited under these provisions, leading them to inherit significantly less compared to men, if they inherited at all.
In order to rectify the gender disparities inherent in inheritance practices, certain states introduced amendments to the Hindu Succession Act. These amendments, collectively referred to as the Hindu Succession Act Amendment (HSAA), granted daughters of coparceners coparcenary rights by birth, thus elevating daughters to an equal status with sons. Kerala (1976), Andhra Pradesh (1986), Tamil Nadu (1989), Maharashtra, and Karnataka (1994) were among the states that made substantially similar amendments. Eventually, in 2005, the Hindu Succession Act was amended nationwide.
The Hindu Women’s Rights to Property Act, 1937
It was enacted during the pre-independence period to enhance property rights for women. It aimed to supersede prevailing customs and traditions, granting Hindu widows the right to an equal division of their deceased husband’s property alongside their sons. This act provided widows, excluding those under the Dayabhaga School of law, the ability to claim a share equivalent to what their husband could have received if alive. They were also allowed to request partition in such cases.
The Hindu Succession Act of 1956
It marked the first legislation to codify property succession among Hindus. While this act did address some gender-based inequalities, it did not achieve complete gender equality. It invalidated earlier customs and laws related to covered provisions, ensuring that women received an equal share as men in cases of intestate succession. The Act’s objective was to “amend and codify the law relating to intestate succession among Hindus.”
Section 3 (f) of the Act defined heirs to include both females and males in the context of intestate succession. However, Section 6 of the act maintained the devolution of coparcenary property according to prevailing Hindu law customs, not the statute. It stipulated that a female could only inherit the property of a deceased male through succession (after his death), not survivorship (by birthright). As a result, females did not possess coparcenary rights in joint property; they received shares only from their fathers or husbands, which were not by birthright like those of males.
Section 14 granted women the right to hold and own property received by them in absolute ownership and to manage it as they saw fit. This encompassed all forms of acquired property, movable or immovable. However, if property was acquired through a restrictive instrument like a will or gift, the terms of that instrument took precedence over the provisions of absolute ownership.
The Hindu Succession (Amendment) Act, 2005
It aimed to rectify the gender-based discrimination present in the Hindu Succession Act of 1956. The amendment was a response to the 174th Law Commission Report and sought to establish equality between women and men in property rights.
The 2005 amendment altered Section 6 of the 1956 Act. Clause (1) introduced female members of a lineage as coparceners in joint family property, granting them birthright equal to that of male members. Clause (2) allowed females to own such property and dispose of it as they deemed fit. Section 23 of the 1956 Act was removed, permitting female heirs to request partition independently of male demand, granting both married and unmarried daughters equal rights to partition property.
Moreover, the amendment added certain female relatives, such as daughter’s daughters, daughter’s son’s daughters, and son’s daughter’s daughters, to Class I heirs. Consequently, the current position grants women equal rights to share in joint property through survivorship (by birth) as well as in separate property through succession (after the death of a male or female member).
The inheritance rights of Muslim women
It is rooted in Quranic principles, holy injunctions, and legislative acts. While reforms have been made over time, gender inequalities still persist within Muslim inheritance laws. Historical practices prior to Islamic Arabia favored males with inheritance rights, while women had little to no claim. Although the Prophet attempted to bring about gender equality through reforms, disparities between men and women remain.
In the context of inheritance, Muslim women typically receive half the share of their male counterparts. Additionally, a widow with children is granted only one-eighth of her husband’s property upon his death, while without children, she receives one-quarter.
In Sunni Law, a daughter is entitled to inherit from both her parents in cases of intestate succession, although this can be overridden by custom or state amendments. The Hanafi School of Islamic practice, followed by Sunni Muslims, places not only women but also their descendants in an inferior position compared to male family members.
Inheritance laws for Shia Muslims, governed by the Ithna-Ashari law, also contain gendered norms that impact women’s rights. For instance, a woman without children is barred from inheriting her husband’s immovable property upon his death, a rule that does not apply to husbands.
The Muslim Personal Law (Shariat) Act of 1937 aimed to eliminate gender-based customs and practices that oppressed women. However, the act excluded agricultural land from its purview, leaving a significant portion of property under gender-based discrimination. While some states rectified this loophole, implementing reforms to include agricultural land, other states like Uttar Pradesh, Punjab, and Himachal Pradesh still maintain unfavourable laws for women.
Attempts to address these gender biases have met resistance from the Law Ministry, which argues against government intervention in personal matters unless a significant portion of society demands it. The existing inheritance laws are grounded in the assumption of a gender-based division of labor, where men are considered providers and women perform unpaid household labor. These laws reflect the notion that men continue the family legacy, inheriting property and wealth, while women are married off with a share in the form of movable property like jewellery.
Upon analyzing inheritance laws from a gender perspective, it becomes evident that these laws contradict the principles of equality and non-discrimination enshrined in Article 14 and 15 of the Indian Constitution.
Uniform Civil Code
The Indian Constitution, specifically in its Directive Principles of State Policy under Article 44, calls for the establishment of a uniform civil code (UCC) throughout the country. While not a Fundamental Right, this principle recommends a common set of laws for all citizens. However, personal laws, which are often grounded in religious beliefs and practices, have consistently hindered the rights of women, particularly in terms of property sharing through inheritance or succession.
The debate over UCC and personal laws has placed women’s rights at a disadvantage, with personal laws often being used to preserve religious and community identities. This has resulted in unequal treatment of women and has perpetuated their inferior status. Calls for a uniform family or personal law should transcend religious ideologies to ensure gender equality. The state’s inability to address personal law issues has led to legal challenges, such as the cases of Madhu Kiswar, Shah Bano, and Shayara Bano. However, these cases have revealed that implementing a UCC could potentially undermine religious and cultural identities within communities.
In practice, personal laws operate as an independent realm within the Constitution, untouched by its guiding principles. This has given rise to the saying that introducing family law into the Constitution is like a “bull in a China shop.” While women theoretically possess legal rights outlined in the Constitution, their practical application often relegates them to an inferior position. This is especially evident in their limited control over property ownership and inheritance rights.
Centuries-old traditions of discrimination against women’s claims to property rights are deeply ingrained and have both ideological and material impacts. Consequently, laws governing marriage, inheritance, and succession have historically been biased in favor of men, leading to the economic dependency of women.
The tension between the call for a uniform civil code and the preservation of religious and cultural identities underscores the complex nature of this issue. Balancing women’s rights with community identities and religious beliefs presents a formidable challenge, as the quest for gender equality must navigate deeply ingrained norms and societal dynamics.
Conclusion
In conclusion, community-based laws have traditionally been influenced by patriarchal or male-dominant structures, leading to the need for women to contend for their rights. Understanding the historical context of women’s rights is crucial to grasping the current state of women’s position. In the ancient Vedic period, women enjoyed a more satisfactory status. However, as the private ownership of property expanded in the post-Vedic era, women began losing their foothold, with property ownership favouring male lineage and sidelining women from inheritance.
Sacred Hindu texts like Dharmashastras and Manusmriti further eroded women’s standing within both the family and society. The introduction of differing schools of thought, Mitakshara and Dayabhaga, in the Hindu tradition deepened the discriminatory nature of inheritance rights. These schools excluded women from inheritance and prevented them from seeking partition or inheritance rights. Women’s property rights were restricted to “stridhana” within these frameworks, often given as part of marriage, and which in the modern era has transformed into the concept of dowry.
The status of women worsened during the medieval period due to foreign invasions and the emergence of harmful practices like female infanticide. Women were treated as minors, and their subordination created a situation of dependency on men. In the colonial period, certain reforms were implemented, such as abolishing sati, addressing female infanticide, and allowing widow remarriage. However, inheritance rights continued to be governed by community-based laws.
The journey of women’s rights has been one of struggle and transformation over various historical epochs. The evolution of property rights and inheritance laws highlights the complex interplay between social norms, religious beliefs, legal systems, and cultural practices that have shaped and continue to influence the status of women in society. Understanding this historical trajectory is essential for addressing current gender inequalities and working towards a more equitable future.
References
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