Open Access Research Article
SUCCESSION AND INHERITANCE RIGHTS OF WOMEN IN INDIA: A CRITICAL ANALYSIS BY – URVASHI
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Article Details
SUCCESSION
AND INHERITANCE RIGHTS OF WOMEN IN INDIA: A CRITICAL ANALYSIS
AUTHORED BY
– URVASHI
The Constitution of India lays down
the fundamental rights of the citizens of our country. One of the most
important fundamental right provided is the “Right to Equality[1]”.
This right states that every citizen is equal in front of the law, has equal
rights and will be treated equally in the court of law[2].
Right to Equality also entails equality amongst genders. It essentially says
that all individuals will be treated equally irrespective of their genders.
However, it is abundantly clear that this law has not fared well in practical
life. There is a clear gap between the law on paper and law in reality due to
existence of laws, which are discriminatory against women.
The Indian Government has played a
huge role in attempting to create a society that is non discriminatory to
individuals on the basis of their genders. However, the Indian society has
largely been governed by the principles and values of patriarchy, where women
are oppressed and their participation in the public sphere is restricted.
Hence, when India achieved independence, the leaders of the nation deemed it
essential to enact laws guaranteeing gender equality to all citizens. The
Lawmakers also deemed it necessary to take affirmative action in order to make
up for the years of oppression and under-representation of women in Indian
society. One such enactment can be seen under Article 15(3) of the Indian
Constitution, which states, “Nothing in this article shall prevent the State
from making any special provision for women and children[3]”.
While the Constitution makers took positive steps to ensure gender equality,
the government’s reluctance to interfere in the private sphere of the citizens
such as family and religion, has proven to be an obstacle towards achieving
equality in it’s true sense.
A large portion of women in India
still have to struggle to be independent from their families and this is a
result of their inability to access basic rights such as right to education and
equal opportunities in terms of employment. Although the inherent gender bias
in the Indian society helps perpetuate a paternal structure in the society, it
is also pertinent to analyze the existing government policies and certain laws
enacted by the State that further legitimize gender based discrimination.
While a lot has been written on how
the criminal law fails to provide women safety in their own country and how the
failure of due process has led to women resorting to social media and other
avenues to achieve justice, the area of civil law remains largely under
researched. Hence in this Research Paper, I propose to analyze civil law;
especially the large number of acts and customs pertaining to inheritance and
property laws that still discriminate against women and the need to amend these
laws and bring about a reform at the earliest.
Hindu
Women: Inheritance and Property Rights
Historically, the Hindu women’s right
to inheritance and property were minimal. Hindu women were excluded from
getting a share in family property; in fact it was rare for a Hindu woman to
hold any property independently in her own name. The Hindu laws relating to
inheritance were not exhaustively codified till the mid 1900’s; hence the rules
for inheritance were governed by sacred religious texts and customs.
These texts did not recognize the
genders to be equal and preached that women were inferior beings who needed
support and protection. An excerpt from Manusmriti, a sacred text of Hindus
says, “Her father protects her in childhood, her husband protects her in
youth and her sons protect her in old age; a woman is never fit for
independence.[4]"
This ideology and patriarchal values also governed the customs relating to
inheritance of property by women.
The two main schools of thoughts
followed by Hindus were Mitakshara and Dayabhaga. Under the Mitakshara school
an heir was called a coparcener and earned a right in the family property by
the virtue of his birth. It is pertinent to note that female heirs were never
considered coparceners and could not claim a share in the family property. The
Dayabhaga School provided certain limited rights to women to be exercised in
situations of necessity but these rights were still far from being considered
gender-equal.[5]
Over the time, these customs were
codified and the Act that now governs inheritance and property rights of Hindus
is “The Hindu Succession Act, 1956”. The Hindu Succession Act brought about
various positive changes related to property and inheritance rights of Hindu
Women. For example, the Act allowed women to be absolute owners of their
properties over which they could exercise any rights such as the right to
alienation on their own free will.
Though the Hindu Succession Act
brought about a sweeping change in the position of women as property right
holders, it still does not guarantee complete equality for women as envisioned
by our lawmakers.
One such case that highlights the
shortcoming of the Hindu Succession Act is that of Omprakash &
Ors. v. Radhacharan[6].
This particular case related to the self-acquired property of Narayani Devi.
Narayani was married for three months before her husband passed away and on
account of his death, she was driven out of her matrimonial home by her in laws
and husband’s relatives. She thus returned back to her parents’ house who paid
for her education that resulted in her being well employed and accumulating a
large sum of money in her bank account. However she too passed away after some
time, without making a will. Her parents assumed that the wealth that was
acquired by Narayani would pass on to them however that was not the case. The
court ruled that as per the Hindu Succession Act, when a Hindu female dies
intestate, her property should go to the heirs of her pre-deceased husband.[7]
Hence, the hard earned money acquired by Naraynai was awarded to the husband’s
heirs who provided her no support whatsoever, who treated her horribly and
drove her out of her home, while her parents who provided for her education
were left with nothing.
The court stated “it is now a well
settled principle of law that sentiment or sympathy alone would not be a guiding
factor in determining the rights of the parties which are otherwise clear and
unambiguous[8]“.
However, this is not what is being asked from the court. Women do not
require the courts to make decisions based on sentiments or sympathy. What they
want is to reform the laws, which the courts can clearly see are discriminatory
in nature and need to be struck down. Section 15 of the Hindu Succession Act,
1956 provides that in the case of a Hindu Woman dying intestate, her property
will devolve in the order of:
“(a) firstly, upon the sons and
daughters (including the children of any pre-deceased son or daughter) and the
husband;
(b) secondly, upon the heirs of the
husband ;
(c) thirdly, upon the mother and
father ;
Thus, the heirs of a woman’s husband
are given a priority irrespective of whether the woman ever had any relations
with them. This case reinforces the idea of Indian women being considered as
property in our society. Once a woman is married, she is considered to be the
property of her husband and fully belongs to the husband’s family. This
situation is not the same for men, however for women it is the harsh reality.
This reality is reflected by the Section mentioned above which assumes that the
husband’s heirs have a priority when it comes to a woman’s property, be it
inherited, or self-acquired.
The case of Om Prakash was widely
criticized for failing to provide justice to women and giving legitimacy to a
discriminatory law. This issue was also taken up by the Law Commission of India
in its 174th Report titled “Property Rights of Women: Proposed Reforms under
the Hindu Law”. The report noted that the Section “depict that property
continues to be inherited through the male line from which it came either back
to her father's family or back to her husband's family.”[10]
Thus, such sections that legitimize patriarchy must be reformed. Section 15 of
the HSA must be reformed to ensure that a woman’s self-acquired property must
devolve equally upon the heirs of the husband and to her natal family. However,
there has been no step taken by the State to bring about such a reform as of
2019.
Over the years the State has worked
towards repealing such discriminatory sections. One example of that is Section
23 of the Hindu Succession Act, 1956 that has now been repealed by the Hindu
Succession (Amendment) Act, 2005. Previously this section disentitled a female
heir to “ask for partition in respect of a dwelling house wholly occupied
by a joint family until the male heirs choose to divide their respective shares
therein.[11]” This
Section has now been repealed for the reason that it discriminated heirs in a
family on the basis of gender and acted as a drawback when it came to rights of
a female member to demand partition. The female heirs were expected to seek
permission of the male heirs and obtain their consent in order to demand a
partition of the family dwelling house whereas no such restriction was placed
on the male heirs.
Another major improvement brought
about by the Hindu Succession Amendment Act (2005) was the introduction of
Section 6. Section 6 of the amended Hindu Succession Act provides that the
daughter of a coparcener in a “Hindu Undivided Family” would also
acquire the status of a coparcener from birth, which is the same as the status
of a son in a Hindu Undivided Family. The Section states that “in a Joint
Hindu family governed by the Mitakshara law, the daughter of a coparcener
shall, ?
(a) by birth become a coparcener in
her own right the same manner as the son;
(b) have the same rights in the
coparcenery property as she would have had if she had been a son;
(c) be subject to the same
liabilities in respect of the said coparcenery property as that of a son.[12]”
It also clarifies that the share of
such a daughter will be equal to that of a son, thus bringing about complete
equality between male and female heirs in Mitakshara Coparcenary Laws. Though
this amendment has been lauded as a transformative step taken in a positive
direction, this amendment too suffers from one drawback i.e. the said amendment
applies prospectively and no retrospective application of this law is allowed
under the statute to allow women to exercise their rights under the amendment.
In the case of Prakash v. Phulvati[13],
the Supreme Court clarified that the petitioner could not claim the status “daughter
of a coparcener” under Section 6 as amended on 2005 as her father had
passed away in 1988 i.e. before the amendment came into effect. The Court stated
that the Statute clearly stated that the amendment applies “On and from
the commencement of the Hindu Succession (Amendment) Act, 2005”[14].The court applied the plain meaning
rule to interpret the statute to hold that “there is no scope for a different
interpretation than the one suggested by the text of the amendment[15]” i.e. the section applied
prospectively and not retrospectively.
The Court failed to discuss the
important object behind this amendment i.e. the purpose of introducing the said
amendment was to fight back and strike down laws that discriminated against
women. The object of the amendment was to return to the daughters in Hindu
Undivided Family their rightful shares in the coparcenary property. However
instead of applying the method of purposive interpretation to interpret the
amendment and give effect to the object of the amendment, the court applied the
plain meaning or literal interpretation rule thus taking away the rights of a
majority of women due to prospective application.
An argument against retrospective
application would be that it would lead to re- opening of a vast number of
cases decided before the amendment came into effect and increasing the burden
on the Courts. However, these are merely institutional and administrative
problems to be dealt with, in fact this would not be the first instance where a
provision, law or statute is applied retrospectively to give effect to justice.
This judgment is a clear instance of a situation where the Indian judicial
system failed to reinforce the principle of equality and grant a decision in
favor of women who have historically been exploited and stripped away of their
rights on account of their gender.
Muslim Law
Unlike the Hindus, the Muslim
community in India is still largely governed by customary laws when it comes to
marriage, divorce and inheritance of property. Although various acts such as
the Shariat Act 1937 have been enacted, the majority of the Muslim Personal Law
still remains uncodified.
The personal laws are vast and are
largely controlled and influenced by the All India Muslim Personal Law Board.
This Board is largely under the control of male members who do little to bring
about reforms in the personal laws. Muslim women argue that though Quran
guarantees every individual equal rights, the inequality still exists due to
the patriarchal figures called Ulamas controlling the board. They argue that
these Ulamas resort to a patriarchal reading of religious texts to deprive
women of their rights in both family and property matters.[16]
The Muslims in India can be divided
into two schools i.e. Sunni and Shia, which have their own set of customary
laws relating to inheritance of property.
Sunni Law
Under Sunni law no heirs can claim
any vested right on another’s property. It is only upon the death of an
individual that the heirs take a vested interest in the property of the
deceased. The shares of all heirs are pre decided as per the customary law. The
heirs can only inherit that fixed share as prescribed by the uncodified personal
laws. These are called “Quaranic heirs”. Apart from sharers, there is
another category of heirs, which are called the residuaries, or “agnatic
heirs”. The residuaries can demand a share in the heritable property only
once the shares of all the Quaranic heirs are satisfied and some property is
left as residue.[17]
Under these personal laws the share
that can be demanded by a daughter is not independent, rather it depends on the
presence of a son in the family. When there is a living male heir i.e. a son in
the family, the status of the daughter is reduced to an agnatic heir i.e. a residuary.
The son is always considered a
residuary but the rules are formulated in a manner that despite the son acting
as a residuary he will always inherit property while granting of shares. The
fixed share of the son as a residuary is 2/3rd of the divisible
property which is double the share granted to daughter i.e. 1/3rd
share of the property. In case there is no living daughter at the point of
distribution of shares, the entire residue passes on to the son. This is a
blatant violation of the principle of equality and reinforces the patriarchal
values of discriminating between children and their rights based on gender.
These rules also discriminate between
the shares of parents i.e. the mother and the father in certain circumstances
wherein in cases of no living lineal descendants, the mother gets a fixed share
of 1/3rd the property whereas the father acting as a residuary
obtains 2/3rd of the heritable property. A similar discrimination is
seen between a husband and wife. In case of death of a wife, the husband i.e.
the widower is entitled to 1/2 of the wife’s property in case there is no child
or son’s child and 1/4th of the property in case of a living child.
This share given to the husband is double of what a widow is entitled to on her
husband’s death. On the death of the husband, the wife is only entitled to 1/4th
of the husband’s share of property in case there is no child or son’s child and
1/8th in case there is a child or son’s child.
It is also pertinent to note that
majority of these rules depend on the presence of heirs of the son of the
deceased i.e. presence of son’s children, grandchildren or wife. However, there
is rarely any mention of shares assigned to heirs of the daughter. Apart from
sharers and residuaries, there is another class of heirs called “Distant
Kindred”. This class consists of daughter’s children, children of son’s
daughters, full brothers daughter etc. These female
heirs are at the bottom of the priority list when it comes to inheriting
property and can claim a share in the deceased’s property only in the absence
of any sharer or residuary.[18]
This further highlights the
patriarchal nature of these laws. Thus although the rules governing inheritance
acknowledge the right of female heirs to property, they are still not
considered to be on the same pedestal as male heirs in every circumstance.
Shia law
Under Shia law too the sharers are
divided into categories namely sharers and residuaries. Unlike Sunni law, there
is no category for distant kindred. An individual becomes a sharer as a
consanguine heir or relation by marriage. Consanguine heirs are heirs that are
related to the deceased by blood and are further divided into three groups in
order of priority.
Group 1 - Parents and Children
Group 2 - All Grandparents and
Brothers & Sisters (including their descendant) Group 3 - Paternal and
Maternal Uncles and their Grandparents[19]
Similar to Sunni law, even under the
rules of Shia law a widowed husband is entitles to 1/2 of his deceased wife’s
property in the absence of lineal descendants and 1/4th in the
presence of lineal descendants. The share assigned to a widow however is cut in
half in case of her husband’s death. A widow is entitled to only 1/8th
share of her deceased husband’s property in case of lineal descendants and 1/4th
otherwise.
The rules governing the shares of a
daughter are also similar to Sunni law, wherein a son gets double the share of
the deceased’s daughter. Further, the son is entitled to the entire residue of
property in the absence of a daughter whereas the daughter is only entitled to
1?2 of the property as a sharer in case there is no son of the deceased. In
case there are two daughters, they are collectively entitled to 2/3rd of the
share. Hence, the rules under Shia law discriminate between children on the
basis of gender and the notion behind this is that daughters have “lesser
responsibilities and obligations in comparison to males[20]”.
Such notions reinforce the idea that females
are not capable of handling responsibilities similar to men. In fact, the work
done by women at homes for the family is disregarded and not recognized as
actual labor or “work”. Females in India are often discouraged from working
outside the home and even the families that do allow this often restrict their
freedom to choose profession. The male heirs and sons are seen as the
representative of the families who are responsible to take care of financial
situations and even control the conduct and behavior of female members of the
household.
The fact that male heirs, especially
sons are given an elevated status in the house can be seen by another principle
followed under Shia law called the “Principle of Primogeniture”. As per
this custom, when an individual passes away his eldest “son” is entitled to
inherit his father’s “garments, sword, ring, and the copy of Quran.”[21]
If a deceased father has a daughter who is the eldest amongst all living
siblings she will not have a right to inherit the articles listed above, it is
only the eldest son of all siblings who can claim this right.
Reforms in
Muslim Personal Law
In 2017, the Supreme Court of India
held that, the custom of triple talaq practiced by Muslims in India, wherein a
husband was allowed to legally divorce his wife by uttering the word “talaq”
three times, was unconstitutional[22]. Justice Nariman in his judgment
stated that the practice of triple talaq flows from the Shariat Act and hence
its validity can be determined by testing it against the principles laid by the
Constitution of India. He went on to state that Article 14 does not allow for
discrimination on the grounds of “religion, race, caste, sex or place of
birth[23]”.
The only situation where there can be a differentiation is in cases of reasonable
classification i.e. the differential treatment must be justifiable.
The Supreme Court held that in the
case of triple talaq there was no justifiable object that was being
achieved by giving husbands the power to exercise arbitrary powers and divorce
their wives without a proper procedure or mechanism being followed. The court
found the practice to be arbitrary and hence unconstitutional as it violated
the rights of women under Article 14 of the Indian Constitution. Justice
Nariman’s reasoning and judgment striking down the practice as unconstitutional
has been lauded as a progressive step taken by the Indian judiciary to bring
about necessary reforms in personal laws instead of sticking to the behavior of
non-interference. Further, the reasoning of his judgment reinforced the
principle that no personal laws should be allowed to operate while in
contradiction to the fundamental rights guaranteed by the Constitution of
India.
Though the triple talaq judgment is a
step towards progress, in order to bring about complete gender equality, it is
important for the Indian judiciary to adopt the same attitude towards Muslim
personal laws that govern matters of inheritance and succession. The rules and
customs governing such matters are founded on ideas of patriarchy, they justify
the discrimination between men and women on account of men being seen as the
responsible member of the family who are obligated to provide for female
members.
Although this scenario might have
been true in earlier times, the same is not true for the modern days. The
number of women who are working and financially independent is growing every
year; rather these patriarchal customs and rules act as a hindrance when it
comes to women achieving independence from their families. The State must recognize
that these customs are nothing but patriarchal notions in disguise, wherein the
Ulamas interpret religious texts in a manner that aims to oppress women.
The women of the Muslim community
have tried to bring about reforms from within the community by interpreting the
religious texts and principles in a gender neutral way, however their efforts
have always been overpowered by the strong influential power of the Ulamas who
control how personal laws are governed within the Muslim community. The policy
of non-interference by the State and the judiciary will only result in
continuing violation of fundamental rights of women over the years.
Tribal Laws
of India
The laws and Acts pertaining to
inheritance and property rights of women belonging to religions such as Hindu,
Muslim etc. despite having their drawbacks, have shown positive development and
reforms over the years. However, there are certain groups of women in India
that have seen no improvements in their inheritance and property rights, rather
some of the customs and rules regulating these women’s right to property are as
patriarchal in nature as the ones practiced in ancient times. These customs do
not allow tribal women to demand any share or inherit any property in the event
of death of the head of the family owning the property or land.
An example of that would be the Chota
Nagpur Tenancy Act, 1908 which is an Act governing the law of “Landlord and
Tenant” amongst the tribal population in the areas extending to “North
Chotanagpur, the South Chotanagpur and Palamau Divisions”[24]. Section 7 and 8 of the said Act
provide that it is only the male heirs and descendants that have the right to
inherit property. The presence of the phrase “male descendants” automatically
excluded female descendants in the tribal communities from exercising any
rights in terms of the family property[25].
The matter relating to the enactment
and execution of these discriminatory laws were brought to the attention of
Supreme Court in 1986. The argument of the petitioners was simple, Section 7
and 8 of the Chota Nagpur Tenancy Act, 1908 were unconstitutional and hence
needed to be struck down. The provisions in question discriminated between the
heirs in a community based solely on their gender and hence infringed upon the
female heirs’ right to equality by excluding them from taking a share inland or
property. Hence the provisions were in clear violation of Article 14 of the
India Constitution, which guarantees equality to all individuals irrespective
of their gender.[26]
Although the government enacting and
enforcing these laws has largely refrained from interfering into customary and
personal laws, the petition submitted before the Supreme Court to strike down
these discriminatory sections was an excellent opportunity for the judiciary to
reinforce the principle of gender equality in the society. However, the Supreme
Court failed to provide justice to these tribal women by holding that Section 7
and 8 of the said Act which excluded women from inheriting land could not be struck
down and were in fact constitutionally valid.
The Court stated its inability to
interfere with the working of legislature in the present case, which is in
complete contradiction with the activist reputation that the Supreme Court of
India enjoys. The Supreme Court has in the past has not shied away from taking
similar stances and passing orders repealing sections of Acts which were
unconstitutional in nature. The argument provided by the Court was that even
though different Acts such as Hindu Succession Act and the Indian Succession
Act provided for female heirs to inherit family property, it wasn’t necessary
for all Acts dealing with the same matter to be uniform. However, the
petitioners argue was not to apply the provisions of the Hindu Succession Act
or the Indian Succession Act to the tribal community. The petitioners simply
wanted to borrow the principles of “justice, equity and fair play[27]” which could be found in the scheme
of HSA and ISA and apply the same to the Acts governing the tribal communities
of India.
The Court further stated, “Rules
of succession are indeed susceptible of providing differential treatment, not
necessarily equal. Non uniformities would not in all events violate Article 14.[28]”
This statement given by the Court is indeed correct however not in the present
situation. The non uniformity in the present case is the fact that on one side
there is enactment of Acts which provide male and female heirs with the right
to inherit and on one hand the Chota Nagpur Tenancy Act which excluded female
heirs from exercising any property rights. This amounts to discrimination based
solely on gender and is a violation of the principle of inequality on the face
of it, thus violating Article 14 of the Indian Constitution. Differential
treatment is allowed under Article 14 as long as there is a bonafide object
behind it, which can be justified. The provisions of the Chota Nagpur Tenancy
Act do not pass this test of reasonable classification.
The Court did not deprive the female
heirs of all their rights, however the rights granted are so limited and
restricted that they serve no good to the tribal women of India. The court held
that if women were not given any rights over the land of the deceased this
would lead to widows and daughters being destitute, thus violating their right
to livelihood under Article 21 of the Indian Constitution. Hence “the
immediate female relatives of the last male tenant have the constitutional
remedy to stay on holding the land so long as they remain dependent on it for earning
their livelihood, for otherwise it would render them destitute. In other words,
the exclusive right of male succession conceived of in Section 7 and 8 has to
remain suspended animation so long as the right of livelihood of the female
descendant's of the last male holder remains valid and in vogue.[29]”
This right is exceedingly
discriminatory towards the female descendants when compared to rights of male
descendants under the Act. In today’s day and time, the Courts cannot assume
that male members are the head of families and solely capable of taking care of
agricultural lands. The conditional right awarded to women to have control over
the land as long as they remain dependent on it, is colored with patriarchal
overtones. This rule aims to restrict the alienation of lands from tribes at
the expense of the rights of female descendants. Further it restricts the
movement of women, as they will loose any right they had over the land if they
move away.
This rule is blatantly discriminatory
in nature and a clear violation of the Right to Equality. If the male
descendants have been awarded exclusive rights over agricultural lands,
including the right to alienate such land, the same treatment must be awarded
to female descendants too. There is no justifiable object that can be said to
have been achieved by awarding female descendants limited and restricted rights
over the tribal lands especially with the increasing number of women
participating in the agricultural sector work force.
The correct approach that should have
been taken by the Supreme Court is that of the dissenting opinion in the case
of Madhu Kishwar v. State of Bihar[30]. Justice Ramaswamy in his dissent
opined that the laws governing the tribal population in India and the customs
followed by this community of people cannot be prioritized over the fundamental
rights enshrined in the Constitution. He held that the said provisions of the
Chota Nagpur Tenancy Act were gender-discriminatory and thus unconstitutional
for violating Article 14 of the Constitution of India.
Another practice that governs the
tribal population of India is Wazib-ul-arz, which came into effect in 1926.
This customary practice governs the tribal population in the state of Himachal
Pradesh and similar to the Chota Nagpur Tenancy Act, this practice does not
allow female descendants to inherit ancestral property on the death of the
owner.[31]
The object behind this practice is similar to that of the laws in Chota Nagpur,
wherein it is feared that women will be unable to maintain tribal lands and
might alienate the property when they move away from marriage.
Such presumptions have no basis in
the legal system and are only a sham to cover the true patriarchal structure of
these tribal populations, which consider men to be the head of the house and
women incapable of taking such responsibilities. These practices only aim to
restrict the rights of women, as there is no guarantee that male descendants
who inherit tribal land would not exercise their right to alienate such lands.
However, unlike the case of Chota
Nagpur Tenancy Act, the practice of Wazib-ul-arz has been abolished by a
reformative and progressive judgment by the High Court of Himachal Pradesh.
Justice Rajiv Sharma, in the case of Bahadur v. Bratiya and Ors held
that, “daughters in the tribal areas in the State of Himachal Pradesh shall
inherit the property in accordance with the Hindu Succession Act, 1956 and not
as per customs and usages in order to prevent the women from social injustice
and prevention of all forms of exploitation[32].” The Court further went on to state
that even if the laws enacted in earlier times are patriarchal in nature, these
gender discriminatory laws must not be allowed to be enforced even in the
present society. As the society progresses so must the laws and the customs to
ensure equality amongst all citizens and fair administration of justice to
every citizen.
Christian
Women: The Indian Succession Act
The property and inheritance rights of
Christian Women in India are governed by the Indian Succession Act, 1925.
Though the Act does not provide an exhaustive list of groups of communities or
religions governed by it, Section 4 does state that it does not apply to “Hindu,
Muhammadan, Buddhist, Sikh or Jains[33].”
Section 42 of the Indian Succession
Act talks about the circumstance in which the intestate (deceased) passes away
without leaving any lineal descendants. In such scenarios “If the intestate’s
father is living, he shall succeed to the property.”[34]
Thus, the presence of a living father automatically results in the whole of the
intestate’s property devolving upon the father excluding the share of the widow
if one has left a widow. This section puts the parents of the intestate on
unequal grounds on the basis of their gender. The mother is excluded from
inheriting the property of the deceased son in case the father of the deceased
is living.
Not only is this a clear case of
gender discrimination but also it can lead to gross injustice in certain
circumstances. Section 42 when using the term “father” and granting him
exclusive rights over the intestate’s property in case of no lineal descendants
does not provide for any requirement for succeeding the intestate’s property
apart from him being the father.[35]
This would mean that in cases of re- marriage, even if it were the mother who
takes the sole responsibility of raising the child, contributing to the child’s
education and development as an adult, she would not succeed to any of the
child’s property if the father of the child were still living.[36]
The law does not require the father
to contribute financially or in any other way to the upbringing of the child,
for him to obtain the property of the child in case of intestate succession.
The father of the intestate is put at a much higher pedestal than the mother,
in fact the only case where the mother can succeed to the whole property of the
intestate who dies without a widow and lineal descendants is where the intestate’s
father is dead and there are no “brother, sister, nephew or niece.”[37]
In case the siblings of the deceased are living, the mother has to divide her
share with the brother, sister and their children.
Apart from the Indian Succession Act,
the Christian Women in India were governed by different laws depending on their
community, for example Christians belonging to Travancore were governed by the
Travancore Christian Succession Act 1092, whereas Christian communities
belonging to Cochin were governed by the Cochin Christian Succession Act, 1921.
These local Acts were an example of gender-discriminatory laws where female
heirs were not considered equals of the male heirs.
One such provision under the
Travancore Christian Succession Act, 1092 provided that “widow or mother
shall have only life interest terminable at death or on remarriage”[38] and that a daughter was not allowed
to demand a share in the intestate property if she had been granted stridhan by
the family. Further in case the stridhan was not provided to the daughter she
was not entitled to have the “same share as the son but that she will be
entitled to one- fourth the value of the share of the son or Rs. 5,000
whichever is less.”[39]
These problematic provisions were
brought into question before the Supreme Court of India through a writ petition
filed under Article 32 of the Indian Constitution in the case of Mary Roy v.
State of Kerala & Ors[40]. It was argued that certain
provisions of the Travancore Christian Succession Act as illustrated above were
in violation of Article 14 of the Indian Constitution as they were
discriminatory towards the daughters and provided limited rights to widows and
mothers. Therefore a petition was filed to strike down the provisions in
question on grounds of constitutional invalidity.
The Supreme Court held that since the
enactment of Part B of State (Laws) Act, 1951, the provisions of the Travancore
Christian Succession Act, 1092 were no longer applicable to Travancore
Christians. Section 6 of the State Law Act provided that “If immediately
before the appointed day, there is in force in any Part State any law
corresponding to any of the Acts or Ordinances now extended to that State, that
law shall, save as otherwise expressly provided in the Act, stand repealed.”[41]
The court thus held that the
Christians in Travancore were to be governed by the Indian Succession Act and
the shares of the female heirs i.e. the daughter; mother and the widow were to
be calculated as per the provisions provided in the Indian Succession Act. The
Travancore Christians Succession Act stood repealed and was no more in
function.
Although the Court in this case
repealed the Statute that discriminated against female heirs it is important to
analyze the judgment in light of the case of Madhu Kishwar v.
State of Bihar as illustrated above. Both these cases are
similar to the extent that whereas in the case of Madhu Kishwar,
the Supreme Court refused to hold laws that discriminated between male and
female heirs as unconstitutional under Article 14 of the Indian Constitution,
the Supreme Court in the case of Mary Roy avoided addressing the
issue of constitutional validity of discriminatory provisions in the Travancore
Christian Succession Act altogether.
These instances highlight the fact
that even though the Supreme Court has held that there is no law, including
personal laws that are superior to the fundamental rights guaranteed under the
Indian Constitution, the courts continue to deflect the question of
constitutional validity of personal laws that discriminate between genders. An
important step towards reform would be acknowledgment on part of the courts
that these laws are inherently discriminatory in nature and violate the
fundamental right of equality guaranteed by the Indian Constitution. Such decisions
will henceforth encourage the legislature to amend such laws or introduce new
laws that take into account the interest of women in these matters.
Uniform
Civil Code
There has been a huge debate in the
Indian society about the need of introducing a Uniform Civil Code. As
illustrated by the above discussions, India is a diverse country and there are
a diverse number of laws governing the personal laws of these individuals. It
has often been argued that uncodified personal laws such as a major portion of
Muslim laws that are enforced in India are regressive and based on the
principles of patriarchy. However the discussion of various Acts such as the
Hindu Succession Act and the Indian Succession Act shows that these uncodified
customary laws are not the only problem. All acts and customs regulating the
Succession and Inheritance rights of women fail to pass the test of
gender-equality and non- discrimination.
It is to be noted that the State has
essentially divided the laws governing the citizens into two categories i.e.
laws relating to the public sphere and secondly laws relating to the private
sphere. When it comes to laws pertaining to the public sphere for example tax
laws, the laws do not differ for individuals on the basis of their religion or
community. However issues of marriage, divorce, inheritance etc. are considered
to be part of the personal sphere. The laws pertaining to the personal sphere
are not uniform and vary according to difference in religions, communities and
gender of an individual. These laws see little interference from the State due
to the Government’s reluctance to interfere with a particular communities
religions and customary rules even though some of these rules may be inherently
discriminatory as illustrated by the discussion above.
Some suggest that instead of trying
to bring reforms within each of these enactments and customs, it is necessary
for the government to move away from its act of non interference in the
personal laws and introduce a Uniform Civil Code which will guarantee equality
across all religious communities for all individuals irrespective of their
gender. The enactment of a Uniform Civil Code is supported by the principles
laid down in our Indian Constitution, mainly the right to be treated
irrespective of an individual’s religion or gender.
An opposition to the Uniform Civil
Code is that it threatens the religious identity of various groups,
particularly minority religions that believe their interests and cultural
values will not be taken into account or paid heed to over the interest of
religious majorities such as the Hindus. Hence, the enactment and formation of
laws related to the Uniform Civil Code must be after careful consideration of
interest of all religions and communities. This is a complex task but an
important exercise to ensure there is o discrimination between different
religions and communities. Further, enactment of a Uniform Civil Code is
important to ensure that the very religious identity that seems to be
threatened, does not impose personal laws on women in India that are
discriminatory in nature. Nevertheless, it is important for the state to
balance the right to equality and the right to religion of citizens of the
country.[42]
The Indian Government has already
enacted uniform laws related to women issues such as the Domestic Violence Act
and these laws have proven to be great step towards protecting interests of
women across all religions and communities. Though a complex task, enactment of
a Uniform Civil Code could bring about uniformity in laws across the country.
The enactment of a new code that would apply to all citizens would further make
it simpler to ensure that there are no provisions in the Code that are
gender-discriminatory and that the reforms are brought about keeping into
account the interest of women.
Conclusion
This is just one example of how civil
law does not do justice to women in India and the archaic thoughts present
behind the enactment of such laws. The family laws of India governing
succession and inheritance of property have divided women according to their
religions and enacted discriminatory laws in these acts, which leave the women
of India fighting for equal rights in marriage and property.
It is true that no right is absolute
and the State is bound to restrict the rights of citizens to achieve certain
objects and goals, however it cannot be forgotten that certain rights are
primary and others subordinate. While it is important to protect the interests
of religious communities and respect their customs and practices, these cannot
be used as an excuse to oppress and restrict the rights of women in India.
Women’s right to be treated equally and be entitled to the same rights as their
male counterparts is primary and this right cannot be violated based on interpretations
of religious texts written thousands of years ago or customs & practices
formulated in ancient times.
The State is obligated to interfere
in personal laws of the communities when such laws are oppressive towards a
certain class of citizens. Women have rallied for reforms over decades however
complete reformation of personal laws in not possible without state
intervention and the state’s willingness to participate in the journey towards
enactment of gender-neutral laws. The State must realize that the Indian
society is still run by the notions of patriarchy and these personal laws are a
way to enable such patriarchy and restrict the role and rights of women in our
society.
India is also a party to treaties
such as Convention on the Elimination of all Forms of Discrimination Against
Women (CEDAW), which shows that our Government has
expressed willingness to align the standards of equality and justice exercised
in our country to the international standards and ensure that they align to the
universal human rights system. Article 5 of the CEDAW requires States Parties
to “take all appropriate measures to modify social and cultural patterns of
conduct of men and women, with a view to achieving the elimination of
prejudices and customary and all other practices which are based on the idea of
inferiority or the superiority of either of the sexes or on stereotyped roles
for men and women.[43]” This will also include an
obligation to ensure that the succession and inheritance rights are equal for
men and women. This equality can be brought about any means, be it the
introduction of a Uniform Civil Code or bringing individual reforms in all the
Acts and customs governing different religious groups or communities.
In ensuring that the State does not
overlook the interest of any religious or regional community, it is important
that when bringing about major reforms the State must encourage public debate
and discussion. Women especially should be given a chance to voice their
concerns. This is because the aim of these reforms is not only impose certain
laws on the citizens but to ensure that these laws have been enacted after
taking into account the interest of all.
Apart from the State Legislature and
the Executive’s responsibility to enact and amend laws, there is also a
responsibility on the Indian Judiciary to ensure that the laws on paper do not
differ from the ground reality. Justice Chandrachud, a Supreme Court judge has
talked about how it is time for judges to use the principles of feminism while
deciding cases. The judge says that the principle is simple, equality amongst
the genders. Equality amongst genders is already a principle and an important
fundamental right provided by the Constitution. It is time for the judges to
make decisions, which support gender equality, and for the legislature to
finally make the required amendments in the current acts governing civil law.
A just law does not always lead to
justice; rather it is the obligation of the State, judiciary and the society as
a whole to ensure justice is granted to all. This includes constantly reforming
and redeveloping our laws and as a society to meet the needs of modern times.
Women are guaranteed equality in all spheres of life, and this equality can be
translated as a ground reality only when the laws of the country are amended in
a manner that they see women to be equally capable of men, where men are not
considered a priority not only when it comes to inheritance and succession
matters but all spheres of life. Only then can we truly bridge the gap between
the constitutional ideals and the social reality.
Succession Laws
of Ancient, Medieval, and Modern India. Journal of Law and Religion, 24(2),
pp.663-687.
[10] Property
Rights of Women: Proposed Reforms under the Hindu Law, 174th Report, Law
Commission of India
[15] Ibid
[16] VATUK, S.
(2008). Islamic Feminism in India: Indian Muslim Women Activists and the Reform
of Muslim Personal Law. Modern Asian Studies, 42(2-3), pp.489-518.
[31] Gulati,
Vishal.”HP: Tribal women fight for inheritance rights; petition SC for justice”
National Herald, 26th September 2018. Web.30th March 2019.
Studies, Inc,
40(2).
Article Information
SUCCESSION AND INHERITANCE RIGHTS OF WOMEN IN INDIA: A CRITICAL ANALYSIS BY – URVASHI
Authors: URVASHI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/25
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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