(This article is contributed by The National Institute of Public Finance and Policy)
When thinking about discrimination against women in India, succession and inheritance of property is an often-overlooked subject. A new paper by researchers at the National Institute of Public Finance and Policy (NIPFP) in New Delhi takes a closer look at the Hindu Succession Act of 1956 from a gender lens, as a part of their work with the Property Rights Research Consortium (PRRC). The paper identified key provisions in the act that are inherently discriminatory against women.
The governance of personal law in India varies based on the religious identity of individuals. The Hindu Succession Act, 1956 (HSA) regulates the transfer of property for Hindus, Buddhists, Jains and Sikhs all across India, with the exception of the state of Goa, which has the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 (GSSNIP). For those practicing Islam, Christianity or Zoroastrianism, the applicable personal law is the Indian Succession Act, 1925 (ISA).
Hindu personal law has evolved gradually over time, to become incrementally more gender equitable. In fact, the HSA itself had an amendment in 2005, which eliminated gender-based discrimination in one area: granting male and female siblings equal rights over ancestral property. However, the provisions which discriminate against women and their natal families (as opposed to their marital families) in matters of devolution of property are still very much a part of the legislation. According to the current provisions, if a Hindu woman dies without a living will, then her estate is divided in the following order:
Firstly, to the children and husband of the deceased individual, including her grandchildren (only in case, any of her children have expired).
If there is no surviving husband or children, then upon the heirs of the deceased’s husband.
If there are no heirs of the husband, then upon the husband’s parents.
If there are no parents, then upon the heirs of the deceased woman’s father.
If there are no heirs of the father, then upon the heirs of the deceased woman’s mother.
This order clearly shows that the deceased’s husband’s heirs (which includes his natal relatives, their spouses and their children) have a higher priority than the woman’s parents and siblings. In contrast, the scheme of devolution for property belonging to a man does not include any of the woman’s relatives, as per the same Act.
This paper looks at this major shortcoming of the HSA in detail. The paper analyses decades of case law and court judgments on the constitutional validity of these provisions in the Act, as well as India’s international obligations as a signatory to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).
Further, the paper studies the Goa civil code, as well as the Indian Succession Act as potential models for amending the HSA. Lastly, the paper looks at previous attempts to reform the HSA, and proposes a model amendment to the Act that can be implemented to remove the gender discriminatory provisions of the HSA.
(About NIPFP: The National Institute of Public Finance and Policy (NIPFP) is a centre for research in public economics and policies. Founded in 1976, the institute undertakes research, policy advocacy and capacity building in areas related to public economics. One of the areas of their work is in the field of land and property rights, under which they undertake analysis of issues such as ownership of property from a gender lens, effectiveness of land acquisition laws and regulatory frameworks for title insurance in India).