You can tell the condition of a nation by looking at the status of its women.
– Jawaharlal Nehru
Laws have been biased and gendered since medieval times. These laws have acted as proponents of patriarchy throughout the ages and have contributed to the systemic and institutional oppression of the female gender. Thus, there is an increasing need for gender-neutral laws which treat all genders equally. Despite various laws that already exist to protect women’s rights, traditional patriarchal attitudes still prevail and are strengthened and perpetuated at home and in society. One of the areas where males have always had an inherent advantage is rights over property.
In, ancient times women could be owners of the property but they could not sell or pass it on, not even as the ‘stridhan’. Whereas men had full property rights over house, land, livestock, sons, wives and maids. Thus, women were deprived of participation in the economic process. While the underlying social and cultural dynamics are complex, legal reform to improve women’s inheritance rights could potentially provide a low-cost way to reduce gender discrimination. The basic framework for inheritance differs on the basis of religion in India. While the Hindu, Muhammadan, Buddhist, Sikh or Jaina have their own inheritance laws, the inheritance rights of all other groups are governed by the Indian Succession Act of 1925. None of the laws are perfect and each set of inheritance laws have their own shortcomings.
The Indian Succession Act makes the domicile of the women dependant on the domicile of the husband. This essentially makes the women give up her choice of domicile and submit to the man’s choice of domicile, whereas men are afforded the choice of choosing and changing their domicile. Under the Indian Succession Act of 1925, the daughter of a person dying intestate (those who die without a valid will) would be entitled only to one-fourth of the son’s share, or Rs. 5,000, whichever is lesser, while the male is allowed to inherit normally. The other religious laws are often worse as they are weighed down by tradition. The Hindu Succession Act of 1956 was very discriminatory to the female gender as a whole including daughters and widows. This was the reason that an amendment was passed in 2005 but there is still a long way to go in making the Hindu Succession Act truly equal for all genders. Females were and still afforded fewer rights than their male counterparts. A daughter will get a smaller share of property compared to the son. In addition, under the original version of the act, the brother was entitled to a share in the coparcenary from which the sister is excluded. A good example to explain this anomaly is to the right of a daughter in the residence is only confined to the possession and not of ownership in the family-owned house as well as exclusion from complete ownership of all ancestral property. Under section 3(2) of this act, it was explicitly mentioned that women would be excluded and primacy would be given to males in all cases unless specified. This section was proposed to be deleted by the National Commission for Women in its Review of laws relating to women. It had a special section dedicated to separate ‘general rules of succession in case of female Hindus’. This further served to discriminate among the genders by actively providing a double standard for inheritance. The Hindu Succession Act was amended in 2005 to make it more balanced for both of the genders. Under this an amendment was made to section 6 of the Hindu Succession Act 1956, equal rights were awarded to daughters in their fathers’ ancestral property. However, this law referred only to the ancestral property, and not to any person’s self-acquired property. The Hindu Succession Act also stipulates that in the case of a childless widow’s death the property owned by her goes back to the source it came from in case of inherited and gifted property, whereas in the case of self-acquired property it goes to her in-laws. This is again an attack on female property rights and unfairly differentiates men from women. the amendments made in 2005 are definitely a step in the right direction towards setting up an equal basis of property ownership at birth. However, while the amendment has served to include daughters and give them rights equal to sons, it has said nothing about the rights of women who have married into the family. The rights of women to agricultural land is another focus area where work needs to be done as there is a lot of ambiguity after the amendment of 2005 deleted the provision referring to these rights. However, this historic amendment was somehow restricted in its benefits as the supreme court ruled that it would be applicable only to properties of those fathers who were alive at the time of the amendment gaining legal validity, that is on September 9 2005. Those daughters whose fathers had died before the said date could not claim equal rights to the ancestral property of their father. Given that the 2005 reform is only about ancestral properties, the Hindu father continues to enjoy unfettered discretion to bequeath his self-acquired properties to whoever he wishes. “This is a loophole that still allows Hindu patriarchs to discriminate against daughters with impunity,” according to Delhi-based lawyer and feminist author Arvind Jain. One way to mitigate this rampant gender bias is to take a leaf out of the Muslim law, which imposes a limit on the freedom of testamentary disposition. The Muslim father can will away a maximum of one-third of his property while the rest is divided among his legal heirs of both genders. However, the main problem remains awareness about the reform and women giving up their rights to avoid strained relations within the family. Coming to the Muslim Inheritance law, it seems that Muslim women are better off than their Hindu counterparts. While the Muslim personal law gives the daughter only half of the property being given to the male counterpart, this includes self-acquired properties as well. This does away with the loophole in which daughters are often denied of their family’s earned properties. The Muslim Personal Law (Shariat) Application Act, 1937 is the law which governs the inheritance rights of Muslim women and it has problems of its own. Two amendments to it were suggested by the national commission for women which are yet to be taken into account referring to awarding decision making powers to the males for the females. It speaks nothing about the division of agricultural land which would serve as a crucial economic asset to women. But with no rules regarding its division, it almost always goes to the male heir.
Even the weak laws protecting women have not been adequately enforced. As a result, in practice, women continue to have little access to land and property, a major source of income and long-term economic security. Under the pretext of preventing fragmentation of agricultural holdings, several states have successfully excluded widows and daughters from inheriting the agricultural land. Until there is more awareness and legal reform there is little hope of change. Legal amendments on paper alone would not make the law a success in the country. Women must be provided with more awareness about their rights to property and should have access to better legal aid. This apart the perception of women’s right to property also needs to be changed. The desired change will be brought about once social legitimacy is established. For this purpose, programs have to be developed and sustained.
– Yash Bhati
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