Legislative Reforms in Hindu Succession Act

LEGISLATIVE REFORMS IN THE HINDU SUCCESSION ACT
Newsletter Sep – Dec 2005

In the January – April 2005 issue of Saheli Newsletter we discussed in detail the gender-based disparities prevalent in the Hindu Succession Act of 1956. It was also pointed out that there has been a dire need to amend the Act so that women can get equal rights in land and other property. The present government’s initiative and the efforts of women’s organisations and individuals in this regard were also highlighted in the same issue. As a result of all these efforts, the Hindu Succession (Amendment) Act 2005 has been passed which has deleted the gender discriminatory clauses on agricultural land. The amended law achieves the goal of gender equality with regard to agricultural land, Mitakshara Joint Family Property, daughter’s rights in parental house and rights of widows in property.

The most important achievement of this Act is that it deletes Section 4(2) of the Hindu Succession Act (HSA) 1956. According to Section 4(2) significant interests in agricultural land were exempted from the purview of HSA, the inheritance of which was subject to devolution rules specified in state-level tenurial laws. Many of the state-level tenurial laws have been found to be highly gender unequal because male descendents have been given primacy over women. The 2005 Act brings agricultural land at par with other kind of properties and thus, gives Hindu women in all the states parity with men in landed property. It is hoped that lakhs of women will benefit as a result of this amendment.

The second important achievement of the Act is that its inclusion of all daughters, especially married daughters as coparceners in joint family property - a dramatic departure from the earlier law. This means that the daughters by birth will get an equal share in the ancestral property at par with sons. They can also ask for the partition of this property and can also be the managers of this property. Thirdly, under the new amended law, all daughters will have the same rights as sons to reside in or seek partition of the family dwelling house. Earlier married daughters (unless separated, divorced or widowed) did not have this right. The right to demand partition of the dwelling house was absolutely not given to the daughters under the Hindu Succession Act of 1956.

Fourthly, the amended law deletes Section 24 of the Hindu Succession Act of 1956, according to which certain widows, such as those of the predeceased sons had no rights of inheritance in the ancestral property, if they had remarried. The new law gives rights to these women too.

Thus, the amended law seeks to end most of the inequities prevalent in property rights. Though there continue to be many doubts about the effectivity of the amended law, it is significant that because of these amendments Hindu women have definitely got legal rights in landed property that will have far reaching implications. But certain anomalies continue to persist.

Anomalies in the amendments

The amended law still does not limit the Right to Will. In the discussions that took place during the process of bringing in the amendments to the HSA 1956, serious consideration was given to the question of whether we could, or should challenge the unlimited right to will away property. Some women organisations had at that time strongly recommended that some restrictions should be put on this right. But this was not accepted by the government. As a result, given the Indian social context of the prevalence of gender biases towards son and against daughters, there remains the possibility of families/men actively disinheriting women through their Will, and thus negating all the achievement of this amendment process.
Secondly, the ‘Mitakshara’ system has not been totally abolished. As a result of this, in many states the share of widow in ancestral property of the family would decrease in comparison with the daughter’s share. Bina Agarwal, one of leading researchers on the issue, who has done in-depth study of the rights of women in landed property has recommended that ‘Mitakshara’ system should be totally abolished.

Tasks for the Future

Despite these anomalies, the 2005 amendments open up immense opportunities to lakhs of women who will benefit from the equal inheritance law. But only Hindu women will get these benefits. The non-Hindu personal and customary laws relating to property and inheritance, especially those dealing with Muslims and Adivasis, will continue to remain gender unequal.
Muslim women are governed by Muslim Personal Law (Shariat) 1937. This Shariat law protects Muslim women’s share in family’s property because according to this law, daughters and widows cannot be deprived of their share in property in any case. This law puts restrictions on the Right to Will with a view to ensure the rights of women in property, though the share of women has always been less than that of men. In addition, agricultural land has been kept out of the purview of this law. As a result, inheritance in landed property is governed by local customs, tenurial laws etc. which are highly unequal and most often, against the rights of women. Though in some states efforts have been made to make amendments in such laws with a view to protect Muslim women’s rights in land, yet in states like Maharashtra, Gujarat and West Bengal, even in the absence of such amendments, the Shariat Law is being implemented. But in most other states especially in northern India, extremely unequal tenurial laws remain in operation.

Tribal women are also victim of this kind of discrimination. In tribal areas, the tribal communities are governed by their own customs and traditions which discriminate against women. Even the limited customary land rights that many tribal women enjoyed historically have been eroding. State governments’ attempts to codify these customary laws have been opposed by women’s groups because these efforts did not take note of the inequities prevalent in customary laws.

In view of the above, many organisations and individuals have decided to send a memorandum to the government demanding improvement in the rights of Muslim women in inheritance by amending the Muslim Personal Law (Shariat) 1937, with a view to bring in agricultural land within its purview. It also asks for codification of customary laws of tribal communities on the basis of gender equality. The goals of gender justice and equality and the livelihood and empowerment needs of women make it mandatory for government to initiate above mentioned measures.
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