Property: Daughter has share but father has will
It is 10 years since the daughter has been brought on a par with the son under the Hindu Succession Act, 1956 (HSA). This historic amendment of 2005 never made much of a splash though, unlike other farreaching enactments of the same year such as RTI, NREGA and even the domestic violence law.
The lack of buzz about giving the daughter as much share as the son in the joint family property may seem ironic considering that this very proposal was one of the main reasons why the consolidated Hindu Code Bill championed by India’s first law minister B R Ambedkar had been scuttled in the nascent republic to appease conservative forces.
Does this mean that the notoriously patriarchal Hindu society has since become more accommodating of gender equality? Not necessarily, for there is little data available on the extent to which the amended Section 6 of the HSA conferring the same rights and liabilities on the daughter and the son in the ancestral property has been implemented across the country.
Unlike in the case of RTI and NREGA, there has been no noticeable attempt on the part of the government to spread awareness about the change in property rights. Nor have civil society groups been anywhere as vigilant in monitoring the enforcement of HSA 2005 as they have been about the accrual of benefits from the more high-profile laws of that year.
Rights vs relations
Anecdotal evidence suggests that the import of the 2005 amendment is yet to sink in among the intended beneficiaries. Whether the women concerned are still ignorant about their new succession rights or have chosen to ignore them, Hindu ancestral properties have largely remained the preserve of their male counterparts.
As a study conducted by a feminist group, Partners for Law in Development, put it, “The de facto situation continues to be one where women forfeit these rights to avoid strained family ties.” What is particularly difficult for the daughter is to invoke her entitlement, under the 2005 amendment, to claim par tition of an ancestral home even when male heirs from her family are residing there.
Apart from the lag in the implementation of the 2005 amendment, the Hindu inheritance law is in need of further changes for it to be rid of the remnants of gender discrimination.
Heirs of a woman
One such remnant flagged by the Law Commission in 2008 relates to the implications of a Hindu woman dying without leaving behind a will. If she dies as a childless widow, the husband’s heirs alone inherit her estate. But then, since she is entitled post-2005 to inherit property from her parents’ side as well as her husband’s side, would it not be logical to give equal rights of succession to her heirs from both sides?
The Law Commission suggested that Section 15 of the HSA 1956 be amended so that “in case a female Hindu dies intestate leaving her self-acquired property with no heirs, the property should devolve on her husband’s heirs and also on the heirs of her parental side”. This would surely be an apt sequel to the 2005 amendment, which too had been effected at the instance of the Law Commission.
Another retrograde provision waiting to be discarded is a gratuitous concession made to the Hindu right in 1954 while enacting a secular law for solemnising nondenominational “civil marriage”. Section 19 of the Special Marriage Act says that any marriage performed under that law of a Hindu belonging to an undivided joint family shall be deemed to result in his “severance from such family”.Thus, there is a statutory sanction to disinheriting from the ancestral wealth any Hindu who resorts to civil marriage, which is an option available to those who wish to avoid religious rituals or marry outside the community (without converting the spouse).
Such a disincentive to civil marriage is out of sync with the spirit of the 2005 amendment and the social trend towards inter-caste and inter-community marriages. It also serves as an obstacle to India moving towards its constitutional goal of uniform civil code.
Muslim daughters better off
The 2005 amendment is also a reminder of India’s failure to reform the Muslim personal law, which allows polygamy and extra-judicial divorce. When it comes to property rights, the Muslim law gives the daughter no more than one half of the share of her male counterpart.All the same, since the Muslim daughter has such an entitlement even in the self-acquired property of her father, she is better off than her Hindu counterpart. After all, the proportion of nuclear families and self-ac quired properties is rapidly increasing across all communities.
Given that the 2005 reform is only about ancestral properties, the Hindu father continues to enjoy unfettered discretion to bequeath his self-acquired properties to whoever he wishes. “This is a loophole that still allows Hindu patriarchs to discriminate against daughters with impunity ,” according to Delhi-based lawyer and feminist author Arvind Jain.Out of some 100 wills drafted by him for clients generally perceived to be “progressive”, Jain estimates that barely two or three of them have made any provision for their daughters in the disposition of their self-acquired properties.
One way to mitigate this rampant gender bias is to take a leaf out of the Muslim law, which imposes a limit on the freedom of testamentary disposition. The Muslim father can will away a maximum of one-third of his property while the rest is divided among his legal heirs of both genders.
Significantly, when the Law Commission asked in 2000 whether such a restriction should be imposed on the freedom of the Hindu father as well, the majority of the respondents favoured this radical idea. Those reform seekers were, however, almost evenly divided on whether the right of testamentary disposition should be confined to one-third or one half of the Hindu’s self-acquired properties. Even as it admitted that “there has been a strong demand for placing a restriction on the right of testamentary disposition”, the Law Commission without giving any reasons said that after “due deliberation” it was “not inclined” to go so far in its recommendations.
The equality granted to the Hindu daughter in the context of ancestral property cannot make much difference on the ground unless this concept of curtailing the right to will away self-acquired properties is adopted. This may , however, amount to privileging equality over liberty to check a mischief.