Women in India were never considered to be at the forefront of land rights and succession. Hindu women have been restricted within their legal right to inherit a property in Indian society since time immemorial. Historically, the patriarchal mindset is the main feeding point which disregards women rights, pushing her to a position of inferiority in the social and economic aspects of human relations. Woman’s subordinate status persists not only in their homes and in society but also in privileges and freedoms. Yet women were not necessarily restricted from inheriting ancestral and marital property and assets. But their share in the property was well below that of their male counterparts. Women’s right to property is a positive step to protect rights and, it acts as a measure to remove the biased patriarchal approach thereby empowering women.
The women were especially denied sexual and economic freedom under the ancient Hindu statute. It is highlighted in support of this idea that “A Father protects her during her childhood, a husband protects her in youth and her sons protect her in the old age; a woman is never fit for freedom.” Our Constitution envisages that women as an Indian citizen should be regarded in all facets of life as equal to men. Many reforms have been implemented in Succession laws to obtain the purpose of the Constitution, but it has created inequality among females. On 11 August 2020, the Hon’ble Supreme Court ruled that, because ‘coparcenary’ rights are established at birth, they should extend to all daughters too, including those born before 2005. Justice has been served through this judgment and equal rights have been provided to women for being a coparcener. This article aims at providing a detailed analysis of how the patriarchal system throughout the legal system has been abolished and at present, daughters have been given equal inheritance right to the ancestral property.
PRE-AMENDMENT STRUGGLE FOR WOMEN
Being a woman has never really been a good time. Shackled at home, stripped of rights in society, and exposed to occupational gender inequality, women have borne the brunt of having been the weaker sex throughout history. Women in India have been discriminated against for years, and for different reasons they were denied the right to ancestral land. Firstly, there is no uniformity in inheritance laws, for instance, that different religious groups are governed by their personal laws and various state natives by their customary legislation. Several of these laws prohibited passing on lands, whether agricultural or otherwise, to women for fear of distorting the holding of land or losing it once the woman got married.
Second, powerful patriarchal practices have converted into fear of abuse and danger of violation by their male counterparts, stopping women from fighting for their inheritance rights. In addition to this, in many northern and western states, as a result of the practice of ‘haq tyag’ or voluntary renunciation of rights, women abandon their claim over ancestral land. It is justified on the grounds that only sons will get the family property as the father pays dowry and funds the daughter’s wedding. Thirdly, there is minimal knowledge and awareness among women regarding their rights and hence, they show little willingness and reasonability to contest in courts.
As late as the formulation of the Hindu Succession Act, 1956, the law was overtly skewed against women, it only became more rational after the 2005 amendment to the Hindu Succession Act, which gave equal rights to daughters in the ancestral property of their fathers. Interestingly, however, according to a 2018 study conducted by King’s College London, New York University, and the University of Essex, the inheritance laws which are supposed to empower women have also had a contrary effect. The study notes that granting women inheritance rights between 1970 and 1990 contributed to higher rates of female feticide and higher levels of female infant mortality.
MODERN LEGAL REFORMS AND ENFORCEMENT
Article 14 of the Constitution of India guarantees the universal right to equality for all its people.[i] Article 15 prohibits discrimination on the grounds of caste, creed, color, and gender by the State, thus ensuring equal protection of the law for all citizens.[ii] Looking at the scheme of laws regulating women’s inheritance rights, one wonders why, despite such explicit guarantees in the Constitution, there was a dire need to quash some of the patriarchal inheritance laws.
Until the amendment introduced in the Hindu Succession Act in 2005, the Act regarded daughters to be a part of the Hindu Undivided Family (HUF) only, not coparceners. The latter is the linear descendants of a common ancestor, having the birthrights of the first four generations to ancestral or self-acquired lands as discussed in the case of Surjit Lal Chhabda v. The Commissioner of Income Tax[iii]. Furthermore, if the daughter got married, she was no longer considered a member of the HUF. Since the 2005 amendment, the daughter was recognized as a coparcener and her marital status did not affect her rights. In the case of Sunil Kumar & Anr. v. Ram Parkas & Ors.[iv], the Court discussed essential features of coparcenary of birth and sapindaship which includes the limit of degrees till which an individual is considered a coparcener or a sapinda in the family.
On 11 August 2020, a three-judge bench at the Supreme Court of India including Justices Arun Mishra, S Abdul Nazeer, and MR Shah declared that, the coparcenary rights are established at birth, and hence the amendment made will have a retrospective effect. They also ruled that a daughter could claim an equal share of the parental property regardless of when she was born, and whether or not her father was alive at the time of the 2005 amendment made to the Act. “You cannot just assume that a lady was given her proportion during the marriage period and that she doesn’t have recourse to the coparcenary interest in the Hindu Undivided Family,” says Sanjay Hegde, an advocate at the Supreme Court. The Supreme Court also reiterated that without documentary evidence, ‘oral partitions’ or a verbal understanding within families will not stand ground. The only exceptions to this would be if there is a definite will in place or a legal family arrangement that stipulates that all ancestral property will only be passed on to the males within the family.
There are two in-depth case studies from Rwanda and Ethiopia, which demonstrate the possible effect of policy reforms and their implementation in developing countries. In Rwanda, women are the backbone of the economy as major actors in the agricultural sector and are becoming more and more involved in other sectors of employment. Thus, further action to eliminate discrimination against women, particularly in the strategic area of implementing inheritance and property rights for all Rwandan women, will have a significant impact on eradicating hunger and malnutrition and improving the country’s social and economic life. While Ethiopia is significantly advanced from a formal law perspective, the question of inheritance and property rights for women is still a dynamic and contentious one.
Strong proprietary rights are a critical part of land ownership. This includes how legislation governs asset management during the marriage. Globally, nine economies often assign husbands administrative rights over properties during the marriage. In Chile, for instance, the husband administers his wife’s joint property but also any private property unless she acquired it using financial means independent of his. Not having land or housing power often deprives women of the direct economic benefits.
CONCLUSION
This reform that was introduced throughout India altered family asset management and increased parental investment in daughters. Mothers who benefited from the reform spent twice as much on literacy for their children, and women were more likely to have bank accounts and sanitary latrines where the reform took effect. Legal frameworks that grant women equal rights of property are a crucial first step towards empowering women socially and economically. Significant progress has been made in addressing the substantive gender disparity in property rights. While legal reforms per se are rarely enough to bring about change, it can open the door to greater opportunities for women to claim their rights individually and collectively. Several steps need to be taken to ensure that national justice systems adequately guarantee women’s rights that are globally accepted. Supporting civil society in its functions in governmental, educational, and legal services is an important step towards ensuring that equality in the law on paper becomes equality in action.
[i] INDIAN CONST. art. 14.
[ii] INDIAN CONST. art 15.
[iii] Surjit Lal Chhabda v. The Commissioner of Income Tax, 3 SCC 142 (1976).
[iv] Sunil Kumar & Anr. v. Ram Parkas & Ors., 2 SCC 77 (1988).
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This article is written by Akriti Choudhary and Roshan Kumar Jha of Institute of Law, Nirma University.
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