December 23, 2004
The government’s intent of amending the Hindu Succession Act, 1956 (HSA) towards gender equality is heartening. But the proposed amendments are inadequate. The Hindu Succession (Amendment) Bill 2004, introduced in Rajya Sabha on December 20, if enacted, will leave untouched a major source of inequality: rights in agricultural land. While enhancing a daughter’s share in a man’s joint family property it will reduce the shares of other Class I heirs such as his widow and mother. It will also leave intact the man’s right to will away his share and disinherit female heirs. It will thus be a lost opportunity for comprehensive amendment. For gender equality, we need to bring agricultural land on par with other property, abolish joint family property and partially restrict testation.
The unamended HSA 1956 contains two explicit sources of gender inequality and one implicit one. One, the Act, Section 4(2), exempts significant interests in agricultural land: it leaves untouched provisions of tenurial laws concerning the fixation of ceilings, fragmentation of agricultural holdings or devolution of tenancy rights in such holdings. Hence, interests in tenancy land devolve according to the order of devolution specified in the tenurial laws, which vary by state. In the southern and most of the central and eastern states, these laws are silent on devolution, so inheritance can be assumed to follow the HSA. In a few states, the tenurial laws specify that the HSA or the ‘‘personal law’’ will apply. But, in the northwestern states of Haryana, Punjab, HP, Delhi, UP and J&K, the tenurial laws do specify the order of devolution and these are highly gender unequal. Here primacy is given (as under the ancient Mitakshara system) to male lineal descendants in the male line of descent and women come very low in the order of heirs. Also, a woman gets only a limited estate and loses the land if she remarries (as widow) or fails to cultivate it for a year or two. Moreover, in UP and Delhi, a ‘‘tenant’’ is defined so broadly that this unequal order of devolution covers all agricultural land.
Two, females have rights to smaller property shares than males. Under the HSA (excepting Hindu matrilineal communities), the separate property of a Hindu male dying intestate devolves, in the first instance, equally on his sons, daughters, widow and mother (plus specified heirs of predeceased sons or daughters). If previously governed under the Dayabhaga system, this rule applies also to ancestral property. But, if previously governed by Mitakshara, the concept of joint family property is retained. In the deceased man’s ‘‘notional’’ share in the Mitakshara coparcenary, sons, daughters, widow and mother (and other Class I heirs) are entitled to equal shares. But sons, as coparceners, also have a direct right by birth to an independent share in the joint family property, in addition to their shares in their father’s portion; while female heirs (daughter, widow, mother) have a right only in the deceased man’s ‘‘notional’’ portion. Also, sons can demand partition of the Mitakshara coparcenary while the women cannot. Hence even to get their part of the ‘‘notional’’ share, women have to await partition by males. Moreover, a man can convert any part of his separate property into coparcenary property, which can further reduce women’s inheritance. Three, the Act gives a person unrestricted testamentary rights over his/her property. In practice, the provision can be used to disinherit female heirs. Since the HSA 1956 was passed, five states have amended it. Maharashtra, Karnataka, TN and AP have included daughters as coparceners in joint family property, while Kerala has abolished joint family property altogether. No state has amended the provisos on agricultural land.
The 2004 Bill follows the route of the Maharashtra et al amendments. It does not address the HSA’s gender inequalities comprehensively. First it will not redress inequality in agricultural land — the most important form of rural property. As I have argued in my book, A Field of One’s Own, gender equality in agricultural land can reduce not just a woman’s but her whole family’s risk of poverty, increase her livelihood options, enhance prospects of child survival, education and health, reduce domestic violence and empower women. It is therefore critical that in amending the HSA, all agricultural holdings be brought within the Act’s purview. (Also, at the state level, amending tenurial laws to remove gender discriminatory devolution rules is imperative.) Second, the 2004 Bill favours some women over others. On the positive side, the amendments will increase the shares of daughters who are unmarried when the amendments come into effect and in the long run increase the shares of all daughters. It will also give daughters direct rights in some property which the father cannot will away. But the amendments will decrease the shares of other Class I female heirs, such as the man’s widow and mother, since the coparcenary share of the deceased male from whom they inherit will decline. In other words, while the amendments will reduce inequality between sons and daughters on some counts, they will increase inequality between daughters and other women on the same counts. In this sense, the proposed amendments are flawed. A more egalitarian step would be to abolish joint family property, as in Kerala.
Third, the 2004 Bill retains unrestricted rights to testation. Restricting testamentary rights to, say, half or two-thirds of the property, as found in some other jural systems in India and Europe, would be a step in the right direction. The 2004 Bill is based on the recommendations of the Law Commission’s 174th Report 2000, and reproduces its shortcomings. In 1999, the Law Commission had fielded a questionnaire to NGOs and experts, soliciting responses to alternative proposals for amendments, such as whether or not to bring all agricultural land under the HSA, and whether to abolish joint family property altogether or make daughters coparceners on the same basis as sons — 81 per cent of the responses favoured bringing gender equality in the inheritance of agricultural land and a substantial percentage supported the abolition of joint family property. But on both counts the Commission took the conservative route. It did not touch agricultural land and only recommended making daughters coparceners. These weaknesses went unnoticed by women’s groups.
However, if the 2004 Bill is debated in Parliament (and I hope it will be) it provides a window of opportunity for women’s groups to mobilise and ask for a more comprehensive amendment than the Bill proposes, one that brings all property, including agricultural land, on par, abolishes joint family property, and partially restricts testation.
The writer is professor of economics, Institute of Economic Growth, Delhi
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