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 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
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
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
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
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
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
- 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:
Pravat Chandra Patnaik case
- 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.
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
The case of Sekar v Geetha & Ors
further exemplifies that:
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
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
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
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
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
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
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
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
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- Dr. Amna Mirza - Assistant Professor (Senior Scale), Department
of Political Science, Shyama Prasad Mukherji College for Women, University
E-mail: [email protected]
- Chandrika Arya - Doctoral Fellow, Department of Political
Science, University of Delhi.
- Dr. Virendra Pratap Yadav - Assistant Professor, Department of
Applied Psychology, Shyama Prasad Mukherji College for Women, University of