Articles

Sex Inequality in Inheritance

This article is written by Shrasti Singh, a student of Shri Ramswaroop Memorial University, Lucknow

Introduction

In India, women are given great respect in the society but when we talk about their rights in our society, we get to see inequality in them. One of the right are- Right of inheritance and succession. In India, there is no uniformity in inheritance laws. Different religious communities are governed by their own personal laws like Hindus are governed by Hindu law, Muslims are governed by customary law under the Muslim Personal Law (Shariat) Application Act, 1937. Other than that there is an Indian Succession Act, which apply to all Indian citizen who are not Hindu, Sikh, Jain, Buddhist or Muslim. 

Inheritance and succession are the concept of transferring property and wealth from one generation to the other. Inheritance means the devolution of the property (moveable and non-moveable property), title, rights and duty to another person on the death of an individual either by law of succession and by a will.  There are two type of property-

  1. Ancestral property (undivided property which has been passed through four generation).
  2. Self- absorbed property (Which is acquired by a person through his/her in his lifetime.) the owner have its own discretion to give this property to anyone by making will. This can allow him /her to discriminate against the gender.

 Will is a legal instrument made by an owner of its own discretion to transfer his/her property to anyone after his death. Whereas Law of succession is a method used to transfer the property when an owner dies without a will. (Intestate)

 The Main Reason for the Sex Inequality in Inheritance Are

Firstly, the family fear that there will be division of lands and losing it after woman get married.

Secondly, there is low awareness and literacy rate of women. They are not aware about their own rights and women did not show much interest to contest in courts.

Thirdly, India is a patriarchal society in which male play a dominant roles. He control and head their family and society. Men have created the fear and threat which prevent the women from fighting for their inheritance rights. Most women give up their claim over ancestral property by voluntary renunciation of rights on the ground that father pays dowry and finance of the daughter’s wedding and left the family property over the sons.

And lastly, people considers girls to be liability as she has to go in other family, if she inherited property of family it directly goes into hands of her in-laws (other family) after marriage. On the other hand, they view inherited property as a reward to son as he works on the lands and creates money along with looking after their parents in their old age. Whereas daughter after marriage cannot look after their parents as they are busy with their own family.

HINDU SUCCESSION ACT, 1956

The Hindu personal laws related to succession was fully biased against women. Though law granted a Hindu women an equal right to inherit property acquired by a descendant, but in the devolution of interest in coparcenary property of Hindu Undivided Family governed by the Mistakshara law had excluded the women from being coparceners and have no birth right in the coparcenary property under section 6 of the Act. Only four generations of male coparceners can held joint ownership of the coparcenary property and had birth right over it, and also can ask for partition of coparcenary property. But this discriminating provision came to end in 2005, The Hindu Succession Amendment Act, 2005 introduced a major changes to strengthen the inheritance rights of Hindu daughter. The amendment made the women equal coparceners in Hindu undivided family. On August 11, 2020, the Supreme Court ruled that the 2005 amendment will have a retrospective effect and apply on the daughter born before and after the amendment and she also continued to be a coparcener in her father’s HUF after marriage. Before this women ceased to be part of her father HUF after marriage.   

Until now, there are provisions in Hindu succession act which discriminate against Hindu women by making different rules for devolution of property held by male and female. These provisions have clear view regarding unfairness in giving preference to husband’s family in the scheme of devolution as compared to the woman’s own family, even when the property belongs to the woman. This legislation was made in era, when the joint family was considered the most important unit of societal organization among Hindus and most women in India were not engaged in paid work at that time. It was therefore considered inconceivable for women to acquire property through the exercise of their own skill and had believe that women cannot manage the properties. Thus socio-economic status of women was lower than men. But in present the scenario has changed on which this HSA was made. Today, joint family system  have lost its relevancy as an institution and  higher percentage of women started to employed in workplace  thus having their own self acquired property. So, now it’s time to change this outdated provision and bring gender equality law of inheritance.

 In the scheme of devolution for property belonging to a woman under Section 15 (1), the husband’s heirs (which includes his natal relatives, their spouses and their children) have a higher priority than the woman’s parents and siblings.

 Whereas, in the scheme of devolution for property belonging to a man under Section 8 does not include any of the woman’s relatives. Furthermore, the list of the husband’s heirs is so exhaustive, that in practice a woman’s parents and siblings would rarely stand to inherit property from her. We do not see any analogous provision in Section 8 and 9 of the Act. For any property which belongs to a man, his wife’s natal family is never in line to inherit it. The property devolves only to his heirs, specified in the Schedule, which includes his distant relatives and their spouses. This lack of reciprocity is prima facie unfair. The rules of devolution for women given in Section 15(1) also apply to all the property which the woman acquires through gifts, or through her own skill and effort. Even for a woman’s self-acquired property, her husband’s heirs are given priority over her closest natal relatives, if she has no surviving children.

 The case of Om Prakash vs. Radhachandran showed the fact that the discrimination is made against the women related with the devolution for a woman’s self-acquired property under the HSA. In this case, the fact of issues was who is the rightful heir of narayani Devi property? Her mother claimed the right to inherit her property but the claim was challenged by her brother in law.  The court based his judgement on the legislative intent in law of Hindu succession act and held that his brother in law was a rightful heir. Even they have disowned her from their home after her husband death and the property which she accumulated throughout her life with her hard work and the financial assistance of her parents. This injustice is caused solely due to her status as a married Hindu woman. 

 This judgement sets a poor judicial precedent because it does not make complete justice to Narayani Devi. The judge relies on the literal interpretation of the law but violates the constitutional values of justice, equity and good conscience. It has been followed as precedent in other case which devalue the autonomy of women and refute the devolution of the self-acquired property of a woman to her natal heirs in the judgement of the Madras High Court in Pushpa v. N. Venkatesh and Guwahati High Court in Anima Das v. Samaresh Majumdar

In Mamta Dinesh Vakil v. Bansi S. Wadhwa, the Bombay High Court listened the two suits challenging the constitutional validity of Sections 8 and 15 of the HSA. In the first suit, the maternal aunt of a deceased (a Hindu male) challenged the validity of Section 8 of the HSA as being unreasonable for giving preference to the paternal aunt (father’s relatives) of the deceased over the maternal aunt (mother’s relatives). In the second suit, the self-acquired property of a deceased (Hindu female) was claimed by her brother-in-law, being her husband’s heir, thereby forcing her siblings to challenge the validity of Section 15(1) of the Hindu Succession Act.

The Additional Solicitor General (ASG) while arguing for the constitutionality of the HSA stated that the different schemes of devolution for men and women under the HSA are discriminatory in nature, but justified on the basis of maintenance of family tie.

The single judge bench of Bombay High Court held that the discrimination between males and females does not satisfy the test of equality under Article 15 of the Constitution, and thus declared Sections 8 and 15 of the Act is in violation of the Constitution. This case totally changed the judgement decided by single judge bench in Sonubhai Yeshwant Jadhav v. Bala Govinda Yadav [AIR 1983 Bom 156]. Therefore, the court referred the matter to a larger bench. No decision yet came from higher division bench.

MUSLIM LAW 

In Muslim Law, the concept of inequality of sexes is based on the scriptures and the traditions of the prophet Muhammad. Thus, the dominance of men over the women is completely seen in their personal law but their Law of succession is far different from Hindu Law of Succession. They equally treated the acquired property and ancestral property. There do not recognize the concept of joint family system and undivided family system. And they have two type of heir- 

  1. Sharers which includes the husband, wife, father, mother, daughter, the uterine brother, the uterine sister, the full sister, and the consanguine sister. Of all these Sharers, there are four who inherit sometimes as sharers and sometimes as Residuary. These are the father, the daughter, the full sister, and the consanguine sister.
  2. Residuaries are the ones who inherit in the absence of the immediate Sharer, and if the estate remains after being devolved between them. 
  3. When there is no Natural heirs left, the estate of the deceased goes to the government. 

In Muslim law, a Muslim can made a waisyat (will) in favor of any other person but it can give only one- third of his whole property. Two -third property is related to legal heir. But if he wants to make a will in favors of his heir, he had to take consent of other legal heir otherwise it will invalid. 

Per-capita and Per-strip distribution are the two ways used by Muslim to distribute the property. In the per capita distribution, the estate is distributed equally between the heirs. Therefore, the share that a person gets depends on the number of heirs that exist. It is majorly used by the Hanafi law.  Whereas in per strip distribution, the property shall be distributed amongst the heirs according to the strip or the class that they belong to. Therefore, the inheritance depends upon the branch and the number of persons that belong to that branch. It is used under the Shia law.

Muslim does not create any distinction between the rights of men and women. There is no preferential treatment also. On the death of their ancestor, both the boy and girl child have right to become the legal heir of inheritable property. Thus inheritance is not a birthright though discrimination can be seen in the distribution of the share. The law also fixed the shares for the division of the property that the heir are entitled to:

  • The wife is entitled to one-fourth of the share if the couple has no lineal descendent, and one-eighth if they have child
  • Husband takes half the share when there exists no lineal descendent and one-fourth if they have child.
  • One daughter is entitled to half the property. In the case of more than one daughter, all the daughters jointly get two-thirds of the estate.
  • If both, daughter and son exist then the daughter does not be a sharer but becomes a residuary sharer.

 Here, a son is entitled to double of what a daughter inherits. The female heir are given half share of that of the male heirs. The reason for this difference is that a female shall upon marriage receive mehr and maintenance from her husband but males have only property of ancestor for inheritance and they have responsibility to maintain his wife and children even if she is wealthy enough to maintain herself. Muslim women can receive inheritance, as daughters, wives and mother too. This Act shall not apply to Muslims who married under the Special Marriage Act, 1954.

Indian Succession Act, 1925

In this Act, the rules of intestate succession are gender neutral given under Sections 23 to 56 of the Act. Under this act, the preference of heir are given below:

1. The spouse and lineal descendants share. 

2. If there are no lineal descendants, then the spouse and kindred share. Among kindred father has highest priority, followed by mother and siblings, and followed by remoter kindred.

 3. If there are no kindred and no lineal descendants either, then the spouse alone.

 4. If there is no spouse, then lineal descendants. Section 37 to section 40

 5. If there is no spouse, nor lineal descendants, then father. Section42

 6. If there is no father, then mother, brothers and sisters. Section 43, 44 and 45

7. If there is no father and no brother, sister, nephew and niece then only mother. Section 46

 8. If none of these are living then to remoter kindred, who are nearest in degree. Section 48

Under sections 33 and 34 use the term “widow”, not spouse, implying the rules govern the devolution of a male intestate’s property and provide about the share of widow. Whereas Section 35 clearly states that the widower of a female intestate has the same rights in respect of her property, as the widow of a male intestate would in his. This means, the scheme of devolution is identical for men and women. Further, the use of the gender-neutral terms “kindred” means two persons are said to be kindred if they have a common ancestor. It includes both collaterals and lineal consanguineous relations and “lineal descendants” suggested that man and woman relatives are treated equally, and that ancestry through male and female lines is equally recognized. Both brothers and sisters have equal interest in an intestate. Finally, where no lineal descendants or ascendants are available, agnates and cognates have an equal right to succeed to an intestate’s property; the only factor that affects their claim is the degrees of separation from the intestate. The ISA does fail to reach in being truly gender-neutral. 

Under Sections 42 and 43, an intestate’s father gets preference over the mother. This way, the ISA presents a useful distinct with respect to equal treatment of men and women both in the right to inherit, and in the scheme of devolution. Earlier the rules of succession for Parsis were discriminatory in a manner just similar to Sections 8 and 15 of the HAS but after an amendment to the ISA in 1991 the succession laws governing Parsis have been made gender neutral. Thus this act have more development than the Hindu Succession Act in respect of gender neutrality.

India also have an international obligation to remove gender discrimination under Convention on the Elimination of All Forms of Discrimination against Women. India had signed this convention in 1980 but ratified it in 1993. The main aim was to make signatories member to accept all the discrimination present against women in their country and asked to take all possible measures to end this discrimination. The article 2(f), Article 5, Article 15, Article 16 in this convention deals with the property related law including inheritance.

The supreme court in the case of Madhu Kishwar & Ors. Vs State of Bihar & Ors. [(1996) 5 SCC 125], observe that legislature while making law should give adequate attention to international convention to whom India has ratified it. “By operation of Article 2(f) and other related articles of CEDAW, the State should by appropriate measures including legislation, modify law and abolish gender based discrimination in the existing laws, regulations, customs and practices which constitute discrimination against women.”

Conclusion

Thus gender- neutral succession law is need of the society. Women should be not discriminated in any sphere of life including inheritance purpose. Now, the socio –economic status of women in India is considerably changed.  Most of women are involving herself in workforce and contribute in making money and self-acquired property. Women today run their own businesses. Women own 21.5% of all proprietary establishments in the country. Thus provision in Hindu Succession Act should be amended to made law gender neutral based on the modern Indian society in which women is at par with men and follows the constitutional provision of Article 14 and Article 15(1) which talks about right to equality and no discrimination of any kind on the basis of sex, place of birth, religion, race and caste and international convention CDEAW. 

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