In a landmark decision, the Lok Sabha sought to accord inheritance rights to women.
The recent Hindu Succession Act (HSA) (Amendment) Bill 2005, passed by the Lok Sabha on August 29, takes us several steps closer to achieving gender equality and abolishing the ancient patrilineal system of inheritance among Hindus.
The HSA, which was passed in 1956, gave daughters, wives and mothers an equal right in a Hindu man's self-acquired property if he died without making a will. However, as far as joint family (ancestral) property was concerned, daughters could only inherit a share in their father's share of the property. Sons, on the other hand, inherited a share equal to that of their father from birth. After the father dies, the sons once again inherit from the father's share. The Bill gives daughters an equal share in the Mitakshara joint family property.
Another positive change the Bill brings about is the deletion of Section 23, HSA, which states that a daughter cannot ask for her share in an inherited house if any of the male heirs are still residing in it. The section also restricts her right to reside in the inherited residence, unless she is a widow or has been separated from or deserted by her husband. The HSA places no such restriction on the son. Section 24 of the HSA, which restricts certain classes of widows from inheriting property – like a widow of predeceased sons who has remarried – has also been deleted. The Bill also amends Schedule 1, HSA, giving the predeceased daughter's daughter's heirs the same rights as were earlier given to the predeceased son's son's heirs.
However, the Bill stops short of giving complete equality and the amendments are not comprehensive enough. To begin with, the Mitakshara Joint Family System is in itself hierarchical. It is structured on different levels of inequality between widows and daughters, elder sons and younger sons. In some states of south India, widows do not get an equal share in the ancestral property even on partition. For decades, therefore, women's organisations have been demanding that the Mitakshara System be abolished, as has been done in Kerala. One of the critical areas that the Bill seeks to address is the rights of women over agricultural land. The Bill deletes Section 4(2), HSA, which specifically protects special laws in every state to address the issue of fragmentation of agricultural holdings, fixation of land ceiling and devolution of tenancy rights in agricultural holdings. It is pertinent to mention that the states of Delhi, Uttar Pradesh, Punjab, Haryana, and Jammu and Kashmir do have special laws; and these laws deny women equal rights of succession in tenancy rights, including the rights of a tenure holder (owner).
Take, for instance, the order of succession in the Delhi Land Reform Act. The 'male lineal descendants in the male line of descent' are first on the list; then the widow; father is next on the list. Unmarried daughters are ninth on this list.
Sabha can be interpreted to mean that the HSA no longer permits succession of any property – including agricultural land – that is contrary to the provisions of HSA. Previously, court judgements have upheld special laws relating to devolution of tenancy rights citing Section 4(2) HSA, and one of the effects of the deletion is that they will no longer be able to rely on this section to deny women rights on agricultural land.
However, while Section 4(2) has been deleted, the special state laws that deal with agricultural land continue to hold. This raises a question: What is the validity of these laws with respect to their effect on women's property rights? Regarding this crucial issue, two interpretations exist. Many contend that agricultural land, including succession to tenancy rights, is a state subject and the state laws will remain until the states themselves abrogate them. Law Minister HR Bharadwaj, during the debate in the Lok Sabha, said since agriculture is a state subject, the Centre would soon write to state governments and, if necessary, call a meeting to amend these laws.
In fact, the All India Democratic Women's Association (AIDWA) and other women's groups had recommended that Section 4(2) be amended to categorically state that in all laws relating to agricultural land, daughters and wives should be given inheritance rights equal to that of sons. AIDWA contends that the government does have the right to do this, because laws of succession fall under the Concurrent List. An important loophole in the Act, which has not been rectified, is the unfettered right to will. Section 30, HSA allows any Hindu to dispose of his property, including his share in ancestral property, by will. Women's organisations and activists have pointed out that this Section can be – and has been – used to disinherit women. It is essential, therefore, that at the least a restriction is placed on the right to will, so that women in the family are not discriminated against.
Section 15, HSA – which specifies how the property of a female Hindu will devolve – also requires close examination. It states that in the absence of Class I heirs (sons, daughters, husband), the property of the woman will go to her husband's heirs. Only if these heirs are not present, will the property devolve upon her own father and mother. If her parents are not alive, the property will devolve upon the heirs of the father. Only if her father has no heirs will the property devolve upon her mother's heirs. The Bill fails to address this issue.
Finally, an amendment of the law can only be successful if daughters ask for and get their share in the parental property. At present, women are routinely coerced into relinquishing their shares to maintain 'peace' in the family and because they are chary of souring relationships with their natal family.
Almost routinely, whenever the question of equal property rights for women is raised, there are alarmist objections about violent consequences. Some commentators warn of increased conflict in the family, and even a rise in female foeticide, as a result of this. It is almost as if – just because there is a likelihood of violence – women should not demand their rights.
In fact, when women get property rights, they will be in a stronger and more independent position to resist violence against themselves and their children.
(Kirti Singh is an activist lawyer and legal convenor, All India Democratic Women's Association.)
Courtesy:Women's Feature Service
HSA Amendment Bill -- The women inheritors -- (by Kirti Singh)