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N&D Newsletter State of the States: Paradiplomacy in India

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FEMINISM , GENDER DISCRIMINATION

 Women and property rights:
Evolution of Hindu
Succession Rights over years
December 1, 2021

By Rajat Chaudhary

The Hindu Succession (Amendment) Act, 2005 covers inheritance and succession among
Hindus, Sikhs, Buddhists, and Jains, who comprise 80.5% of the Indian Population. The Hindu
Succession Act 1956 was amended in 2005 to empower women by granting them equal
inheritance rights as men. However, 14 years down the line there exist numerous studies which
confirm amendments haven’t helped much for the cause of gender equality.

In this article, I attempt to trace a much larger trajectory of succession laws in India pertaining to
Hindus, right from the ancient time to the colonial times and to the post-independence era. As
Eleanor Newbigin argues in her book, most of the studies in this domain either stop at the
independence era or start from it; there isn’t really a rupture point yet, but the latest 2005
amendment is a significant departure. Therefore, the law as such should be understood as a
continuous process with each new development getting influenced by its predecessor.
Pre-colonial trends

Some scholars often invoke images of the rosy past when talking about the ancient era and
often blame the colonizers for much of the harm to Indian society. The Early Vedic age (c. 1500
– c. 1200 BCE) in popular imagination also serves as an era of the epitome of the powerful
status of women. While all of it might be true, even in the times of ancient India, we find traces
that conform to the fact that even in those times inheritance was highly biased.

Bina Aggarwal argues that the biggest change came in the age of Smritis as it witnessed the
conferment of certain rights on female heirs by Manu (in Manusmriti which was written around
1250 BCE and 1000 BCE) and many more, they acknowledged the concept of woman’s
exclusive property which they referred as Stridhan. But the Smritis provided a legal framework in
the form of various commentaries which were rooted in customs; the two most famous laws
were Mitakshara and Dayabhaga prevalent in different parts of the country.

The Mitakshara School was followed pan India except for Bengal and Assam. The Mitakshara
system distinguished between two properties – namely joint family property and separate
property. The joint family property consisted primarily of the jointly held property of the family
and the interest in it was held by four generations of male members who became coparceners.
The rights in case of the joint property was limited while in the case of separate property the
owner enjoyed absolute rights. Under Mitakshara law women were only entitled to maintenance
of the joint property, and even in the separate property, women could have limited interest, that
too, in the absence of sons and agnatic heirs. To conclude,Mitakshara law could be defined by
three distinct characteristics (1) the importance of blood relationship in matters of inheritance,
(2) the restrictions placed on the coparceners in case of joint family property, (3) no woman
could become a coparcener.

The Dayabhaga school was followed in Bengal and Assam and differed significantly from
Mitakshara school. Under this, the man was the absolute owner of all his property and no
distinction was made between joint and separate property. The son, in this case, didn’t acquire
the right by birth and the division could take place only in the case of the death of the owner
and the share went first to the sons. A chaste widow could inherit a property in the absence of a
male heir but only in limited interest and couldn’t alienate the property meaning she had no
right to sell the said property, gift it, or mortgage it.

Inheritance laws under the colonial rule

Bina Aggarwal divides colonial history into two frames – the late 18th to early 20th century and
early to mid-20th century to elaborate the evolution of law under colonial rules which serves as
an accurate measure to understand the succession laws as well. She argues that before British
rule, local customs formed the basis of Hindu law, influenced by the Shastras and
commentaries, but some differed from Shastras significantly. Once the officials began
participating in the matter of Indian customs and decision making, they did not have any idea
about the field, and hence relied on either pundits, qazis, or principles of English law. This led
to a kind of homogenization of Hindu law guided by the upper castes, and some customs
which were in variance with the Shastric knowledge got lost as they were in most cases
uncodified. This altered the women’s property rights in fundamental ways and made them more
biased against women. Although there were some reformatory measures in this period to alter
the state of women’s lives like the Abolition of Sati in 1829, the laws governing inheritance were
left untouched.

The picture changed in the second phase,i.e., in the early to mid-20th century as the pressure
started rising with the emergence of women’s organizations like the Women’s Indian Association
in 1917 and the All India Women’s Conference in 1927. This was assisted by the fact that there
were some Indian lawyers elected in the government central legislative assembly. But this
shouldn’t be thought of in isolation; Eleanor Newbigin brings in an interesting angle to this
debate by highlighting how the reformatory laws at that time were rather an attempt by the
colonizers to meet its post-war expenses, main purpose of which was to increase the income by
enhancing their sources of taxes. For instance, in the case of Hindu women’s Right to Property
Act 1937, the law was a tool devised to turn the joint family property into individual property so
that more taxes could be collected from the owners. Hindu widows were given the right to claim
property of their husbands as but only in limited interest, meaning, she couldn’t alienate it. Such
discussion gives us a crucial insight to view the reformatory laws from a political-economy angle
as well rather than viewing them as well-intended practices in all the cases.

Post-colonial trends

The colonial laws and mindsets had implications on post-colonial India. But nonetheless, the
constitution of India which was framed gave new dimensions to the Indian Society with the aim
of providing equality. However, the personal laws were retained due to numerous reasons
making the law apply differently to different religions. Nonetheless, the personal laws underwent
numerous changes to become more equitable over the period of time, and in succession laws
for the Hindus, The Hindu Succession Act 1956 came into being owing to the critique of
Mitakshara law of ‘holding property’. The Act, first of all, removed the distinction between the
Mitakshara and Dayabhaga rules of inheritance and laid down a uniform system of inheritance
for all the Hindus in the country and removed the divergent categories of Stridhana. In the case
of the separate property of deceased men, it provided equal shares to Class I heirs viz. sons,
daughters, widow, and mother; the right to alienate such property was also granted. In the case
of Joint family property, the women were also given an equal share in the “national” share of the
deceased person but the law indeed had certain fundamental flaws. Section 6 of the act denied
the right of the daughter to be a coparcener in the undivided joint family property as opposed
to a son who is given the same right by birth. Similarly, Section 4 (2) of the act gave the state-
level tenurial laws the precedence in case of inheritance of agricultural lands, and hence the
gender unequal state laws of state worked against women’s emancipation. Section 23 of the act
talked about how no female heir can claim partition of the dwelling family house. Section 24
restricted the rights of the widow in case she chose to remarry.

The 1956 act, to say the least, was a compromise as it once again reinforced the stereotype of
women being dependent on the men of the house. Some states like Andhra Pradesh and
Karnataka amended Section 6 of the Hindu Succession Act 1956 in 1986 and 1994 respectively
to make it more gender-equal but then again, a nationwide restructuring was much awaited. In
the 174th Law Commission, suo moto cognizance of the gender discriminatory laws was taken
and a bill was formed based on its recommendation for the amendment of the Hindu
Succession Act 1956 which became an act in the year 2005.

The Hindu Succession (Amendment) Act, 2005

The biggest achievement of The Hindu Succession (Amendment) Act, 2005 is that it removed
the gender discriminatory section 6 of the Hindu Succession Act, 1956 and gave daughters the
right to be a coparcener by birth. It also removed Section 4 (2) and the succession in case of
agricultural land which was earlier restricted to the state laws were removed. The differential
treatment of widows and the denial of the right of daughters to claim partition in the family
house was also rectified by the removal of Section 24 and Section 23 respectively.

But again, the 2005 act is critiqued on various grounds like its differential treatment of female
members where the daughters are considered coparceners, but the position of the mother
remains unaltered and the age-old notions of discrimination of females introduced in the family
through marriage continue. In case a female dies intestate her property doesn’t go to her class I
heirs—her parents, which makes for a weak case for gender equality. The directive principles of
the constitution, in this case, have been sidelined.

Conclusion

There are numerous factors due to which the empowerment project isn’t succeeding and one of
them—and indeed an important one—is the denial of property to women. Bina Aggarwal writing
in National daily ‘The Hindu’ argues that granting agricultural land to women not only reduces
the socio-economic risk of women, the risk of the entire family is reduced to a considerable
extent. She offers the example of her own study from the state of Kerala establishing that
women’s risk of physical violence is significantly lower when she owns the property. In the same
study, she also demonstrates how granting land rights to women can give them bargaining rights
to end inequality. A recent report published on the World Bank website states that “Women in
half of the countries in the world are unable to assert equal land and property rights despite
legal protections”. Such a biased distribution of land is one of the major reasons for perpetual
generational discrimination of women. Added to this, once they lack a source of economic
affluence, their agency is reduced even further. Hence, giving property rights to women should
be viewed as a much larger political project, the prerequisite for which is economic growth and
poverty eradication.

Rajat Chaudhary is a recent Urban Fellowship graduate from Indian Institute for Human
Settlements.

Image credits: https://feminisminindia.com/2020/05/13/history-ngoization-womens-movement-

india/

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