Inheritance laws are of special importance in a predominantly rural society like India. Since property rights determine access to land, the primary source of wealth and opportunities for productive activities, it leads to economic independence of women and their improved social status.

It is widely believed that social rights and economic independence leads to other positive outcomes among women such as increased autonomy, higher economic productivity, improved health status and educational attainment for children. As women's social status is linked with their financial worth, gender-neutral asset and ownership rights are key to improve their socio-economic outcomes.

Thus, it is important to analyze inheritance laws from gender perspective because if laws do not offer equal share of benefits to women as their male counterpart, it deprives half of its population from several socio-economic privileges. This paper attempted to highlight the issue of gender inequality associated with inheritance laws for women belonging to different religions in India.

India being a heterogeneous country, characterized by different religions and beliefs, has faced difficulty to implement Uniform Civil Code. Consequently, religious communities of India continue to be governed by their personal laws in several matters including property rights. Even within the different religions, there are sub-groups who have their own local customs, rules and norms regarding property rights.

Therefore, Hindus, Sikhs, Jains, Buddhists are governed by a single set of inheritance rights codified in the Hindu Succession Act. Christians are governed by another code whereas the Muslims are yet to codified their property rights. Tribal women of various states belonging to different religions are governed by the customary laws of their respective tribes. Under the Indian constitution, both the union and state governments are competent to enact laws on matter of succession.

Also, the states can and some have, enacted their own variations of property laws within personal laws. With some exceptions, the Indian courts have always refused to interfere in the personal laws and strike down those that are clearly unconstitutional. Due to the religious sentiments are attached, courts have always been reluctant to touch upon the matter of personal laws.

There is no unified body of inheritance laws in India. The inheritance rights of an Indian women are determined by many factors: the religion and religious belief, her marital status, region, and so on. Almost all personal laws are notwithstanding the constitutional guarantee of equality of all in matter of inheritance rights.

An Overview of Hindu Inheritance Laws

Indian constitution provides equality before law as it is clearly stated in Article 14: "The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." Despite constitutional guarantees, patterns of inheritance remained unequal on the gender basis.

Since 1956, inheritance rights in India for Hindus, Sikhs, Buddhists and Jains are governed by Hindu Succession Act. Prior to Hindu Succession Act (HSA), 1956, Hindu Canonical 'Shastric' and customary laws used to govern the Hindus belonging to different regions of the country.

Accordingly, in matter of succession also, there were different schools like Dayabhaga in Bengal, in eastern part of India; Mayukha in Bombay, Gujarat, Konkan and in western part; Namudri in Kerala and in southern partand Mitakshara in other parts of India. HSA, by following Hindu Law Tradition Mitakshara, makes distinction between individual property and joint family property (ancestral property or any property or asset that held jointly by extended family).

According to Hindu Succession Act, once a Hindu male died intestate, daughters had equal right to their father's individual property but they didn't have right to their joint family property or ancestral property. Right to ancestral property were limited to a group, knowns as Coparcenary, that implies male members of a dynasty. Following these provisions, 'sons' were considered as 'Hindu Coparcenary' and thus enjoyed a right to family property by birth.

Being coparceners meant that nobody can deny their share in the property and they alone can demand for division of the property when older coparceners are alive. In view of following the HSA in most of the property settlements, women's ability to inherit land was severely constrained and they ended up inheriting significantly less than man, if ever.

In order to abolish gender inequalities inherent in the pattern of inheritance, some states had made amendments in Hindu Succession Act. These states had made substantively similar amendments commonly known as Hindu Succession Act Amendment (HSAA), stated that daughter of a coparcener will acquire coparcener rights by birth thereby daughters were placed on equal status with sons. The amendment was particularly made by Kerala (1976), Andhra Pradesh (1986), Tamil Nadu (1989), Maharashtra and Karnataka (1994). In 2005, HSA was amended nationwide.

Hindu Women's Inheritance Rights

The Hindu Succession Act, 1956 was the first law enacted in post-independence period to provide a comprehensive and uniform system of inheritance among Hindus. It was introduced as a reform in existing system. Prior to HSA, the Hindu Women's Rights to Property Act, 1937 was in operation for inheritance rights of women. Its enactment was itself radical as it provided, for the first time, rights of succession to the Hindu widow.

It can be considered as first gateway to establish gender-equal practices. Yet it had also created a hiatus which was later filled by the Hindu Succession Act. HSA applies to both the Mitaksharaand Dayabhanga school and also to certain parts of South India. Section 14 of the act abolished the concept of women's limited estate and conferred them full ownership.

The substantive parts of the Act are:

• The pre-existing limited estate granted to women was converted to absolute one.
• Rights of female heirs other than the widow were recognized whereas the widow's position was strengthened.
• In the Mitakshara Coparcenary, the doctrine of survivorship continues to apply but if there is a female in line, the doctrine of testamentary succession is applied in order to prevent her exclusion.
• Unchastity, Remarriage and conversion are no longer held as valid grounds for disability to inheritance.
• Even the unborn child has a right if she/he was in the womb at the time of death of intestate, if born subsequently.
   

In order to eliminate gender inequalities enshrined in HSA regarding the right of a daughter or a married daughter in coparcenary property of a Hindu joint family, an amendment was done in the Hindu Succession Act in 2005. It introduced daughters as coparceners and brought them on par with sons in the family. According to classical law, a daughter ceased to be a member of her natal family after her marriage, amendment announced that she would remain a coparcener of the joint family irrespective of her marital status.

The provision of Section 6 of the Hindu Succession Amendment Act are as follows:
Devolution of interest in coparcenary property:

1. On and from the commencement of the Hindu Succession Amendment Act, 2005, in the joint Hindu family, the daughter of a coparcener shall:
   
   • become a coparcener by birth in her own right in the same manner as the son; enjoy the same rights in the coparcenary property as she would have had if she had been a son; be subject to the same liabilities in respect of the said coparcenary property as that of a son.

Pravat Chandra Patnaik case illustrated the object of the amendment which was:
"To eradicate the gender discrimination contained in Section 6 by conferring equal rights to sons and daughters in the Hindu Mitakshara coparcenary property".

The case of Sekar v Geetha & Ors further exemplifies that:
"Parliament has made an attempt to achieve the goal of removal of discrimination not only comprised in Section 6 of the act but also by bestowing with an absolute right to a female heir to demand for a partition in a dwelling house wholly occupied by a joint family".

It is remarkable to note that the multifarious confusion created after the amendment was made in Section 6. The apex court verdict in Prakash v Phulavati case affirmed that amendment would only be prospective, holding that:
"Rights under the amendment are applicable to living daughters of living coparceners as on 09-09-2005 regardless of when these daughters were born."

It clearly implies that if the coparcener had died prior to 09-09-2005, the daughter would have no right to coparcenary property.

However, in 2018, Danamma v Amar, the supreme court agreed with the ruling of Phulavati, but upheld that:
"Since the suit for partition was pending while the amendment act was implemented, the daughter's rights got crystallized. Thus, despite the fact the coparcener was died in 2001, the daughters were still entitled to the benefit conferred by the amendment".
This implied that the act has a retrospective effect.

Hence, there emerges a lack of clarity regarding whether a daughter can be entitled to equal share as the sons if the coparcener died before 2005. This contradiction in the interpretation of the law has opened a floodgate of litigations. Subsequently, in Mangammal v. T.B. Raju, supreme court verdict sought to reconcile the emerging dichotomy between Phulavati and Danamma by upholding the former as authoritative precedent and overruling the latter. Although the position of female coparcener is more or less unambiguous now, one should note here that the multifarious confusion that created due to an amendment was aimed at uplifting women.

Christian Women's Inheritance Rights

Before the implementation of Indian Succession Act, property settlement of majority of Christians were governed by customary laws. These laws were highly discriminatory in nature and thus had disproportionate effects on women. The Travancore Succession Act, 1916 and The Cochin Christian Succession Act, 1921 were the prevalent acts in Travancore and Cochin. These acts were deeply entrenched with patriarchal values.

For instance, a widow could only have a life-time interest in the matter of dealing with succession of immovable property. Furthermore, daughters were either offered with only one-third of the son's share or Rs. 5000, whichever was of lesser value. In line with these provisions, only sons inherited the bulk of property. In the absence of son, it was offered to the nearest male kin. Thus, it was impossible for a woman to inherit or acquire property of their own. Therefore, succession laws governed gendered notions and were discriminatory, unequal and unjust in nature.

In view of the absence of any uniform or solid law, most of the property related decisions vary from case to case. In order to protect women's inheritance rights, the Indian Succession Act was introduced in 1924. This act ensured better protection of women's inheritance rights, which stipulated: windows would be entitled with one-third of the ancestral property, sons and daughters would get equal share of remaining part. Ideally, this act should have put into practice and replaced the discriminatory customary laws but Christian men, backed by the church, strongly opposed it in order to save their interest.

However, Justice Krishna Iyer sought for a bill to stand customary succession acts stand null and void. Due to its opposition by Church men, the bill ceased to take effect. Therefore, inheritance laws continued to pervade with patriarchal values.

It is important to note that Mary Roy v State of Kerala, 1986 was one of the landmark cases that uplifted the position of Christian women and addressed gender based discrimination. Roy has been forced to move out of her residential place and was excluded from getting a share of her ancestral property by the male members of her family.

Following the provisions of Travancore Act of 1916, her brothers claimed that their ancestral property solely belong to them and her stay in their home is illegal. She filed a petition in the supreme court and challenged two provisions of the act on the ground that these are constitutionally not valid.

The court ruled that the provisions under the Travancore Succession Act are the violation of principle of Gender equality guaranteed under Article 14 of Indian constitution. Therefore, the act was declared void and replaced by The Indian Succession Act, 1925, Chapter 2, Part V which then became the prevailing law to govern intestate succession.

This judgement was to implement retrospectively and ended the discrimination between sons and daughters. However, the Christian lobby vehemently against it and trying hard to strike down the verdict. They argued that court's interference would violate their personal laws which ultimately lead to the disintegration of Christian society. It is ironical that "the church which claimed to preach justice, peace and harmony, opposing a judgement which has ensured equal inheritance rights of men and women.

These contestations unveil the gendered structure of justice of community when apex court declared equal property rights of sons and daughters should be upheld, Christian community leaders was demanding for upholding patriarchal values. Hence, the evolution of personal laws in Kerala emphasised the need and importance of legislative reform. Changes in the legal system are fundamental to achieve gender equality and justice.

Muslim Women's Inheritance Rights

Muslim inheritance laws are based on Quranic principles, holy injunctions and legislative acts. Prior to Islamic Arabia, it is believed that inheritance laws were deeply rooted into gendered notion, where only male preference was explicit while women possessing no inheritance rights. However, it is said that Prophet had made reforms to bring gender equality, nevertheless, the relations between men and women are still unequal.

It is a general practice that females are given a share equal to half of the share of their male counterparts. Moreover, if a widow has children, she receives only one-eighth part of her husband property on his death. She receives one quarter part if there are no children born of their marriage.

According to Sunni Law, for intestate succession, a daughter is entitled to succeed property belonging to both parents. However, she can be excluded if there exists a custom or any state amendment. For instance, according to Watsan Act, 1886, a daughter is kept away from inheriting if her paternal uncle is alive. Hanafi Law, a school of Islamic practice, practiced by Sunni Muslims provisions that not only women but their descendants to an inferior position in comparison to the male members of the family.

Inheritance laws of Sunni Muslims, governed by Ithna-Ashari law, are also based on irrational gendered norms which have repercussions on women's life. For instance, a woman with no children is not entitled to inherit her husband's immovable property, on the death of her husband. While this rule does not apply to husbands. Whereas Muslim Law has been criticized on the basis of gender discrimination against females, however it provides far better provisions to daughters in comparison to Hindu Law.

To replace discriminatory customs and usages that governed property rights, Muslim Personal Law (Shariat) Act was implemented in 1937. One of the objectives behind the act was to abolish gendered customs and practices that oppressed women in several ways. This act addressed gender based discrimination in customary laws but by excluding agricultural land from its purview.

Nevertheless, gender based discrimination remained intact in the area of agricultural land. Since a considerable amount of property in the Muslim community falls under the domain of agricultural land, it is unfortunate to exclude this category from Shariat Act. Thereby, an intention to uplift women becomes useless.

However, some states like Andhra Pradesh, Tamil Nadu and Kerala have reformed this loophole by including agricultural land but the act continues unfavorable to women in states like Uttar Pradesh, Punjab and Himachal Pradesh. Here, customary laws favor male as first-order heirs to inherit property. When an action was taken to discontinue discriminatory clause, an objection was raised by Law Ministry.

The ministry stated the point that it is a policy of central government not to intervene in matter of personal law of the country until the proposal comes from a sizeable population of society. Hence, gender biases are continued to prevail in inheritance rights.

The existing inheritance are based on the assumption of gender based division of labor. Men are considered as providers of the family charged with the responsibility of meeting the needs of family. Women are supposed to perform unpaid labor at home. There is also an underlying assumption that men carry forward the family legacy due to which they inherit property or wealth from their parents.

Women, on the other hand, are married and offered a share of wealth in the form of moveable property like jewellery. The gendered inheritance laws, thus, are the reflection of these assumptions about division of labor and strict boundaries to gender.

After analyzing inheritance laws from gender perspective, it is clear that existing inheritance laws deny the right of equality and non-discrimination enshrined in Article 14 and 15 as fundamental rights in the constitution of India.

Lessons from other Countries

In countries like USA and France, the inheritance laws are written in gender neutral language. For instance, instead of using words like sons and daughters, gender neutral words like parents, children and spouses are used. Using of these gender-neutral words clearly implies that a person is entitled to inherit irrespective of their gender. If an approach of using gender neutral terminology is adopted in India, it may help to eliminate gender references from inheritance laws.

Conclusion
It is true that personal succession laws have introduced to recognize women's inheritance rights and placing women on equal footing with men in matter of inheritance. The reality of current time is far from achieving an equitable position. The percentage of total property owned by women and transgender is quite low in India. This figure becomes even worse when we come to productive asset like farm lands.

Women are still considered as incapable and forced to remain dependent by claiming limited interest in property. Given the traditional socio-economic context, illiteracy coupled with lack of awareness of their rights made women deprive of property and inheritance rights.

Moreover, the deeply rooted patriarchal values makes women incapable to contest this discrimination in court and fight for their right to property. In most of the cases, they are being pressurized to voluntarily renouncing their right. In a pluralistic society like India which is characterized by multiple traditions, sects and communities, the question of implementing Uniform Civil Code that will abandon all personal laws is extremely sensitive and controversial.

The proponents of the scheme argue that it will abolish gender-based discrimination which has been perpetuating for centuries. Nevertheless, a society should also review, reform and re-evaluate its customs and practices in order to ensure the principles of equality and justice that is in sync with our constitutional values.

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Written By:

1. Dr. Amna Mirza - Assistant Professor (Senior Scale), Department of Political Science, Shyama Prasad Mukherji College for Women, University of Delhi.
   E-mail: [email protected]
2. Chandrika Arya - Doctoral Fellow, Department of Political Science, University of Delhi.
3. Dr. Virendra Pratap Yadav - Assistant Professor, Department of Applied Psychology, Shyama Prasad Mukherji College for Women, University of Delhi.