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Women’s right to intestate succession: thoughts on gender (dis)parity in India

By: Prachi Ojha

‘A woman must have money and a room of her own if she is to write fiction,’[1] said Virginia Woolf way back in 1928. While this was in the context of economic independence and personal freedom being the most instrumental factors in encouraging women writers, the larger issues on gender parity, women’s equal rights to property, access to resources and opportunities to that of their male counterparts remains work-in-progress in most countries. With women comprising around 48 per cent of the total population in India and a male-female sex ratio of 1.08 (above the world average of 1.01 males for every female),[2] we are taking a look at the legislative framework relating to the inheritance and succession rights of women in the world’s most populated country after China, and examining if a uniform civil code will make a difference in gaining gender parity on inheritance matters.

The right to equality is a fundamental right enshrined in the Constitution of India that not only guarantees equality to all persons, but also prohibits gender-based discrimination with regard to access to facilities, opportunities, employment and the like. While the right to property is no longer a fundamental right in India, the property inheritance rights of an individual are governed by the personal laws applicable to the individual depending on her religion.

The inheritance rights among Hindus are governed by the Hindu Succession Act (1956), while the Indian Succession Act (1925) governs intestate succession among Christians, Parsis and Jews in India. As there is no codified law governing intestate succession among Muslims, Muslims are governed by the Hanafi or Shia law of inheritance. Thus, there is a plethora of personal laws governing the inheritance rights of Indian women and Indian courts have largely shied away from interfering with personal laws as the right to practice one’s religion is a fundamental right in the Constitution of India.

The Hindu law of succession is set out in the Hindu Succession Act (1956) and was acclaimed as a reformative law at that time. This law provided women with the right to inherit property albeit on an unequal footing with men in most cases. It also set out an unequal framework for the treatment of joint family property (where family consists of persons lineally descended from a common ancestor). The male members of a Hindu joint family had a right to the family property by virtue of their birth into the family. A female member had no such right: her entitlement over such family property arose only when a male member of the joint family died, leaving behind a female heir. Even in those cases, the share of a female heir was much smaller than the share of a male heir to the joint nature of family property. This gender disparity was done away with with the passing of the Hindu Succession (Amendment) Act in September 2005, which eliminated all distinctions between a female and male member of a Hindu joint family, paving the way for a daughter’s right to inherit joint family property on par with male family members. Despite the amended law coming into place, it is not uncommon for married women to relinquish their shares in the joint family or ancestral property (of their birth) in favour of the male members, in order to maintain cordial familial ties. They may then contest such settlement or relinquishment in Indian courts at a future date.

The Indian Succession Act governing intestate succession among Christians, Parsis and Jews recognises variations in the succession laws for Christians, Parsis and Jews. When a Christian male dies intestate, leaving behind a widow and other lineal descendants, one third of the property of the intestate male belongs to his widow and two thirds of the property is to be shared among his lineal descendants. The widow gets the entire property of her intestate husband only if the husband has no lineal descendants or no kindred. The position of the widow and her share of the inheritance therefore depends on the presence of lineal descendants and cousins (including lineal descendants of brothers and uncles).

Muslim inheritance succession rules are based on principles enshrined in Koranic texts and generally treat women on an unequal footing in this regard. As a general rule, a female’s share is half of that of a male member’s. A widow receives one eighth of the property of her husband on his death if they have children and one quarter share if there are no children born of the marriage. A petition has been filed in the Delhi High Court recently, seeking amendments to the Muslim personal law relating to succession. While the petition is pending and comments are being awaited from the Central Government, it remains to be seen if it results in a progressive judicial intervention on this front.

In view of the different personal laws and inherently discriminatory customs in place, there is a growing clamour for a uniform civil code in India to bring in a standard set of guidelines governing succession, among other things. Will such a code achieve the much required gender parity in relation to different inheritance rules and customs, without infringing on the fundamental right of a woman to practise her religion? That, of course, depends on the nature of the code. A progressive ideal will be to bring in place an egalitarian framework that provides equal succession rights to women irrespective of their religions and customs and also sensitises citizens on gender parity.

[1] Virginia Woolf, A Room Of One’s Own, first published on 24th October 1929.

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