Women finally have equal property inheritance rights, but gender discrimination in Indian law is still widespread
India has taken a step further towards the goal of protecting women’s basic rights.
Hindu Succession Act (HSA)
The Supreme Court of India issued the latest judicial interpretation of the Hindu Succession Act (HSA). The daughter will receive the same inheritance status as the son and the inheritance will be the same as the son.
India maintains a mixed legal system. The law concerning family and interpersonal relations consists of two personal laws and a civil code. The “Indian Succession Law” is a personal law that mainly serves Hindus, and the people including Jains, Buddhists and Sikhs are also restricted by it.
The population coverage of this law is close to 85%. Another personal law is the Muslim personal law, which accounts for 15% of the Muslim population in India. The only civil code is a regional law made by Goa itself, and the applicable population is less than 1% in the country.
After the new judicial interpretation was released, most of the judicial circles in India welcomed it, believing that the new judicial interpretation has “significant milestones” in achieving gender equality. However, there is a view that this is only a slight improvement in the status of women, and discrimination against women is still everywhere in various legal provisions in India.
Controversial Case on Daughters’ Property Right
For Indians, the argument that “daughters should have equal inheritance status with their sons” is not new. As early as 15 years ago, when the new”Indian Succession Act” came into effect, this sentence was clearly written into the bill. The original text was, “Daughters and sons are the joint heirs of a ‘Joint Hindu family.”
The so-called complete Indian family refers to a family composed of direct descendants of a common ancestor, including male descendants, their wives and children.
In India, such families generally last for at least four generations. Those who are eligible to inherit the family heritage are “coparceners”, and their inheritance rights are inherent. Those who are not eligible to inherit the inheritance are called “members”.
They only have the right to obtain family support and do not enjoy any right to divide the property. For most of the time after India’s independence, only male descendants of the family could become co-heirs. This was also expressly stipulated in the inheritance law promulgated in 1956.
After the new amendment to the inheritance law came into effect on September 9, 2005, it stipulated that the daughter of the deceased father, like his son, became a “co-heir.”
This was originally an obvious historical progress, but because the legal provisions did not clearly stipulate the retrospective time limit, the bill caused many problems in judicial practice.
For example, if the father died before the new law came into effect, does his daughter still have the right to inheritance?
Do daughters born before September 9, 2005 enjoy the right of inheritance?
Does a married daughter enjoy inheritance rights?
Among the above-mentioned issues, the most controversial issue is the first, that is, whether the time of the father’s death will affect the daughter’s inheritance rights.
In the 2015 Prakash v. Phulavati judgment, a high court trial panel composed of two judges determined that if the father died before September 9, 2005 (the date when the amendment took effect), his daughter would not inherit property.
But in the case of Danamma v. Amar three years later, a group of two judges also ruled that even if the father died in 2001, the two daughters in the case would receive part of their property.
However, shortly after the judgment of this case, the Delhi High Court followed the previous case of Prakash v. Phulavati and held that the plaintiff would not enjoy equal property inheritance rights.
In order to resolve the differences between the two cases, in November 2018, three judges of the Supreme Court of India, headed by Judge AK Sikri, decided to study the relevant provisions of the “Indian Succession Law” promulgated in 2005, and make appropriate decisions. Give an authoritative judicial interpretation at the time.
After nearly 2 years of research, on August 11 this year, the Supreme Court of India finally gave their decision:
“Daughters must enjoy the same rights as their sons. The common inheritance rights that a daughter has are inherent and throughout her life. She has this right regardless of whether her father is alive or not.” Alan Missilla The judge said.
The judicial interpretation issued by the Supreme Court of India this time also responded to other important issues. For example, daughters not only enjoy equal status with their sons, they also receive the same share of inheritance as their brothers.
For another example, when a daughter in a family has the rights of a joint heir, it is not affected by the time of her birth. In other words, women born before September 9, 2005 can also fight for their inheritance rights.
Not only that, the court also stipulated that even if a daughter marries, she still enjoys the common property inheritance rights of the original family. Even if she is no longer alive, her direct descendants can still enjoy the ancestral wealth.
The research team gave a new judicial interpretation on the issue of daughter inheritance
The Supreme Court considered that the relaxation of conditions will naturally lead to more cases concerning retrospective rights. In order to avoid unrestricted rights retrospective cases blow out in a short period of time, the Supreme Court specifically emphasized that cases that have completed the property division procedures before December 20, 2004 will not be affected by this new judicial interpretation.
The time limit is limited to this time because the motion to amend the old inheritance bill was proposed on December 20, 2004.
Widely acclaimed, but the actual significance is doubtful
After the new judicial interpretation was released, most public opinion in India welcomed it.
“The Supreme Court has taken an important step towards the goal of equality for all under the Constitution.” Yudhist N. Singh, an advocate of the Indian human rights movement and senior partner of the well-known law firm YNS, was excited. Said.
Rahul Arora, a partner of Trilegal lawyers, pays more attention to the role of judicial interpretation in the patriarchal society of India: \”This move by the Supreme Court is breaking the old patriarchal system. It helps the entire society to become more enlightened and Development in a more equal direction.\”
Although some comments are very positive, the reality is not so optimistic-even if the daughters’ equal inheritance rights are implemented, the actual beneficiaries are not many.
First of all, although the bill can theoretically help family daughters obtain equal inheritance rights, the premise of the application of this right is that the father did not make a will when he died. In India, where the patriarchal society is still deeply entrenched, most fathers who made a will before their death do not share their ancestral wealth equally with their daughters.
Secondly, even if the father did not leave a will before his death, what the daughter can inherit is only the family\’s ancestral property, and she still has no right to the “self-sufficient assets” that the father has worked hard on.
According to Rishabh Shroff, a partner at the Indian law firm Cyril Amarchand Mangaldas, most of India’s current personal wealth, including ownership of high-valued family businesses, is either held in the name of the patriarch or privately. Holding in the name of a trust or holding company/limited partnership:
“It is true that some established family businesses may continue to hold some ancestral wealth, but the scale and importance of these wealth are usually limited. Now almost no family business will establish a new family heritage chain. Therefore, this Supreme Court decision It may not help much in transferring large sums of wealth to daughters.”
The status quo is also true. For example, nuclear engineer Valli Arunachalam is currently working hard to inherit the board seat left by his father.
According to Valli Arunachalam, she is one of the heirs of the 119-year-old Murugappa Group. She believed that the holding company shares held by her father belonged to the family\’s common property, but the opposition in the board of directors believed that the shares belonged to Vialli’s father’s own property and that Vialli could not inherit it.
However, Vialli has no plans to give in. She claims that she is not only implementing her father’s wishes, but also “against prejudice.” She emphasized that the “Indian Succession Act” “should recognize the right of women to be home.”
Does Women’s inheritance goes to men?
If analyzed carefully, the judicial interpretation of the equal inheritance of daughters can only be regarded as a small step in the process of gender equality in India.
In the “Indian Succession Act”, partiality provisions for men are still everywhere. Among them, the most criticized rule is that it is difficult for women to leave the wealth they create to their immediate family members in the form of inheritance.
The Om Prakash v. Radha Charan case in 2009 best illustrates this problem.
In 1954, Narayani, who had just entered the marriage palace for three months, suffered misfortune. Her husband was bitten by a poisonous snake and died.
Because of the traditional Indian society’s patriarchal customs and women’s low level of education, it is difficult for them to obtain job opportunities and achieve economic independence. Therefore, marriage is an inevitable choice for most Indian women.
According to Hindu teachings, the main role of a wife is to assist her husband in life. If the husband dies unfortunately, the wife will lose the status and identity given to her by the doctrine.
The latter not only cannot inherit property, but is even considered to be the culprit of the husband’s early death and is isolated by society.
Not only are widows not allowed to remarry, in some places they even need to follow the custom called Sati and burn themselves to death.
Compared to forced self-immolation, Narayani was lucky. She was driven out of the house impatiently by her in-laws, and she has never received any support and care from her husband.
Fortunately, Narayani has enough parents who love her. With the support of his parents, Narayani received a quality education and eventually got a decent job. When she passed away in 1996, Narayani left his elderly parents with considerable savings including real estate and large savings.
Although there is no time to make a will, everyone in the family believes that these inheritances will allow the two elders to spend their old age in peace.
But what Ramkishori, Narayani’s mother, didn’t expect was that his daughter’s uncle, the brother of the deceased husband, submitted an application to the court at this time, claiming that they were the heirs of the estate.
After years of tug-of-war of litigation, in 2009, the court finally sentenced Narayani’s estate to the husband’s family who drove her out of the house in the past 42 years and never cared about her in the next 42 years. The ruling is based on the “Indian Succession Law”: after the wife’s death, if she fails to leave a will, the property will be passed on to the husband’s heir.
The judge\’s original words were, “Sympathy and sensibility cannot be the guiding principles of the law, and judicial practice cannot be run in a form that the legislature has not envisaged.\”
However, most people in the Indian legal profession believe that the verdict in this case was unfair, and the unfair verdict revealed two major legal issues.
In terms of legislation, the legal provisions are obviously unfair. Although the \”Indian Succession Law\” was revised in 2005, some provisions that are unfavorable to women and their families still exist. In the wife’s property transfer program, the husband’s heirs (including parents, brothers, spouses and children) have a higher priority than the wife’s parents and siblings; in turn, according to Article 8 of the Indian Succession Act, it is a male property transfer The plan does not include any relatives of the woman.
According to a research report jointly completed by Devendra Damle, Siddharth Srivastava, Tushar Anand, Viraj Joshi, and Vishal Trehan by the National Institute of Public Finance and Policy of India, the list of the husband’s heirs is so detailed that it is almost impossible for the woman’s relatives to obtain it in legal practice. The inheritance from the husband.
In a word, according to the \”Indian Succession Law\”, the husband’s property belongs to their family, and the wife’s property belongs to their family; even the widow’s own property belongs to the relatives of the deceased husband.
When the legal provisions are obviously unfair, the courts are unwilling to make appropriate changes based on the actual situation when handling relevant cases, making judicial practice full of unfairness.
When discussing the case of Narayani’s estate, the commentator and legal scholar EPW Engage of Indian Political Economy Weekly believes that the function of inheritance law is not only to tell the people to whom the property should be allocated, but also to point out that “property should not be left to whom. He pointed out that in this case, the in-laws’ neglect of the widow’s life for more than 40 years can already be considered cruel and cruel. In this case, the family of the in-laws who applied for Narayani’s estate is naturally “Individuals who violate the principles of justice, the court should have deprived the family of unreasonable requests.”
Why is Indian law reluctant to let women own property?
It is worth mentioning that the unequal treatment of women’s property is not only reflected in this “Indian Succession Law”, which mainly serves Hindu people, but also in other personal laws.
For example, according to Muslim personal laws, a son’s share of inherited property is twice that of his sister. If the husband dies and the couple has children again, the wife can get one-eighth of the deceased husband’s property share. If there are no children, that is one-fourth.
Conversely, if the wife dies, then with children, the husband can get a quarter of the deceased wife’s property; if there are no children, he can get half of the wife’s property.
Not only that, but this prejudice against women’s property rights also exists in land laws. K Santhakumari, Chairman of the Federation of Women Lawyers of Tamil Nadu, pointed out that although women have the right to own real estate and farmland under the framework of the Indian Succession Law, in fact some state laws still do not support women’s right to own farmland.
Unfair legal provisions and rigid judicial practice reveal the reality that gender discrimination is still deeply rooted in Indian law.
“The operating principles of inheritance law and property law originate from how religion treats women and how they treat their property rights.” Said Dr. Swarna Rajagopalan, founder of Prajnya, an Indian non-profit organization dedicated to gender justice.
In India, the social operating law based on religion is still patriarchy. The social tradition of patriarchy discourages the transfer of property, agriculture or other properties to women, because in this system, people worry that once women get married, land ownership will be split.
The emphasis on land ownership continues to this day, and has evolved into a phenomenon in which various forms of property, including land, assets, deposits, etc., are concentrated in men: “Putting more on boys has become a kind of protection of property and family lineage.
This reinforces the preference for boys because it is a means of maintaining family property.” Said Dr. Swarna Rajagopalan, the founder of Prajnya, an Indian non-profit organization.
When the inequality in property distribution is revealed in legal form, it eventually becomes a social structural gender discrimination; this discrimination in turn restricts women from actively fighting for their rights.
Sudha Ramalingam, a protector of women’s rights, pointed out that in some areas, gender discrimination is being self-internalized by women. “In some states, women gave up their rights to the land at the beginning in order not to lose their brothers or fathers.”
The National Family Health Survey of India (2015-2016) found that only 28% of women aged 15-49 own land alone or jointly with others.
In response to this phenomenon, Sudha believes that it is necessary to take a serious and comprehensive look at housing issues from a gender perspective. One of the solutions is to involve women in making women’s laws.
“The main problem we face at the moment is that all laws are made by a majority of men. Because of this, they are also the biggest beneficiaries of the law. If we can retain 33% of the seats in Parliament in the future, then more Women’s political participation may provide us with a better opportunity to promote women’s property rights.”
In addition, she believes that the law should also try to use neutral language. “For example, it would be helpful to replace the words ‘wife’ and ‘husband’ with ‘spouse’. In this way, the legal protection can also include married transgender people.”
Of course, for India, where women’s discrimination is quite serious, it is far from enough to modify the language of the law to truly achieve gender equality.
From “only sons are eligible to be heirs of joint property” to “daughters and sons enjoy equal property inheritance rights”, India took 64 years. It will take too long for the “Indian Succession Law” and other laws to truly abandon gender discrimination.
Name: Ajay Rastogi
Educational Qualification: LLB
Profession: Advocate / Lawyer
Work Experience: 20 Years of Legal Practice