INHERITANCE LAWS ANALYZED THROUGH THE LENS OF GENDER JUSTICE
Keywords:
Inheritance, Will, India, WomenAbstract
A woman’s legal right to inherit property in India has been restricted since the ancient times. Although Indian culture encompasses a multitude of religions which govern inheritance laws, a common theme amongst these personal laws is the discrimination against women. Patriarchal values which vouched for a son-centered economy ensured that the female’s share in ancestral property would always be less than their male counterpart. Property, being a key resource in obtaining independence, power and wealth, was constantly denied to women. This perpetuated their inferiority and a crippling dependency on their natal and matrimonial family. Through time however, these restrictions have undergone changes, as legislations have been implemented and amended to ensure a less gender-biased allocation of property. This paper aims to critically examine the evolution of succession rights for women through the lens of gender justice. The trajectory of Hindu women’s right to property will be analyzed from the conception of the ancient Mitakshara school of law to the most recent 2005 amendment to the Hindu Succession Act which aimed to provide equal inheritance rights for daughters in a coparcenary. In order to emphasize the gendered nature of the law, a criticism of the Hindu Succession Act, 1956 will follow from a feminist legal perspective. Subsequently, an appraisal of Christian customary laws using the landmark case Mary Roy v State of Kerala will exemplify how the judiciary has played a pivotal role in eradicating sexist practices that oppress women. Furthermore, a study of Muslim women’s right to property will also be assessed in order to determine the extent of gender disparity that pervades personal laws in India.
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i The Laws of Manu, verse 3. Retrieved from https://www.sacred-texts.com/hin/manu/manu03.htm. Accessed on
3rd May 2020.
ii Coparcenary consists of the senior-most male member and his lineal male descendants up to three generations
i.e. father, his son, grandson and great grandson. (This is prior to the 2005 amendment of the Hindu Succession
Act).
iii Since women were excluded from inheriting ancestral property from the father, the dowry represented the Hindu
woman’s share to her father’s property once she was to be married. However, this evolved into the socially
pernicious and greedy practice of a husband expecting a dowry from his bride since her wealth would be taken
over by him. Thus this social practice turned into another medium of oppressing and victimizing women, as
females were seen as a financial burden on the natal families, leading to further problems like female feticides.
iv The Hindu Women’s Right to Property Act, 1937.
v
In fact, the Supreme Court deemed that Section 14 was “wide in its scope and ambit.” The object of Section 14
(1) and (2) is two-fold: it removes the disability associated with women’s right to property and it makes her the
full and absolute owner of the property. Since it stipulated that “any property possessed by a female Hindu whether
acquired before or after the commencement of the Act shall be held by her as full owner” the court ruled that the
words ‘any property’ are large enough to include her stridhanam obtained immediately before the commencement
of the Act. Emphasizing that the right to maintenance was “not a mere formality but a customary Hindu Law,”
the court also ruled that “apart from right to maintenance a Hindu woman is also entitled to right in the family
property. A widow is also entitled to maintenance out of the deceased husband’s estate which is in the hands of
male issue or other coparceners.” See Tulsamma v. Sesha Reddy AIR (1977) SC 1944.
vi Pratap Singh v. Union of India (1985) 4 SCC 197.
vii For instance, if the joint family consists of the father and one son and one daughter, then on the death of the
father, notional partition will take place implying that the son gets half the property and the other half lies with
the father. Out of the halved share belonging to the deceased father, the son and daughter take equal shares. Thus,
the son gets a total of ¾ of the property while the daughter will merely get ¼. See Poonam Pradhan Saxena,
“Succession Laws & Gender Justice” in Archana Parashar and Amita Dhanda (eds.), Redefining Family Law in
India, Routledge, New Delhi 289 (2008).
viii Lucy Carrol, Daughter’s Right to Inheritance in India: A Perspective on the Problem of Dowry, Cambridge
University Press 791 (1991).
ix Post amendment, Section 6 now reads “the daughter of a coparcener shall by birth become a coparcener in her
own right in the same manner as the son and have the same rights in the coparcenary property as she would have
had if she had been a son.” See Pravat Chandra Patnaik and Ors v. Sarat Chandra Patnaik & Ano (2008) AIR
Orissa 133.
x Sekar v.Geetha & Ors (2009) AIR SC 2649.
xi Prakash v Phulavathi (2016) AIR SC 769.
xii Danamma @ Suman Surpur v Amar (2018) AIR 2018 SC 721.
xiii Mangammal v. T.B. Raju (2018) SCC OnLine SC 422.
xiv Poonam Pradhan Saxena, “Succession Laws & Gender Justice” in Archana Parashar and Amita Dhanda (eds.),
Redefining Family Law in India, Routledge, New Delhi 289 (2008).
xv Possible solution propagated by Lucy Carrol. See Lucy Carrol, Daughter’s Right to Inheritance in India: A
Perspective on the Problem of Dowry, Cambridge University Press 791 (1991).
xvi As seen in Sections 8 to 13 and Sections 15 to 16 of the Hindu Succession Act, 1956.
xvii Omprakash v. Radhacharan (2009) 7 SCALE 51.
xviii The court held that “it is now a well settled principle of law that sentiment or sympathy alone would not be a
guiding factor in determining the rights of the parties which are otherwise clear and unambiguous.” It held that
“since 15(1) read with Section 16 makes it abundantly clear that the self-acquired property of a Hindu female
dying intestate shall devolve according to Section 15(1) and 16 and hence it would go to the heirs of the predeceased husband.” However, even logically and ethically, the deceased herself would have preferred her own
parents to inherit her property as averse to the in-laws, who disowned her. See Omprakash v. Radhacharan (2009)
7 SCALE 51.
xix Mulla also observed that “in Hindu intestate succession, laws are about not only who should be entitled to the
property, but also who should be disentitled. Section 15(2) of the HSA is based on the grounds that property should
not pass to the individual whom justice would require it should not pass.” Mulla, Dinshaw Fardunji (2013):
Principles of Hindu Law, 21st edition, Satyajeet A Desai (ed), NewDelhi: LexisNexis.
xx Mamta Dinesh Vakil v Bansi S Wadhwa (2012): BomCR, 6, p 767.
xxi Gautam Bhatia, “Female Intestate Succession under Hindu Law: Analyzing Its Constitutionality” (Home -
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xxiii Lok Sabha Debates, Part II (1955: 8107-212). See https://eparlib.nic.in/handle/123456789/7.
xxiv The Kerala Joint Family (Abolition) Act, 1976.
xxv B. Sivaramayya, Matrimonial Property Law in India, Oxford University Press (2003).
xxvi Bina Agarwal, A Field of Ones Own: Gender and Land Rights in South Asia, vol 58, Cambridge University
Press India (2008).
xxvii Bina Agarwal, A Field of Ones Own: Gender and Land Rights in South Asia, vol 58, Cambridge University
Press India (2008).
xxviii Asmita Sahay, “Mrs. Mary Roy vs State of Kerala” (Law Times JournalSeptember 17, 2019)
<http://lawtimesjournal.in/mrs-mary-roy-vs-state-of-kerala/> accessed May 3, 2020.
xxix M Joseph, ‘Gendered Justice’ Vol. 28, No. 50 Economic and Political Weekly, 2711 (1993).
xxx Mary Roy v State of Kerala (1986) AIR 1011.
xxxi M Joseph, ‘Gendered Justice’ Vol. 28, No. 50 Economic and Political Weekly, 2711 (1993).
xxxii M Joseph, ‘Gendered Justice’ Vol. 28, No. 50 Economic and Political Weekly, 2711 (1993).
xxxiii Afsar Banu, Status of women in Islamic society. Vol-I, Anmol Publications Pvt. Ltd New Delhi, (2003).
xxxiv Narendra Subramanian, “Legal Change and Gender Inequality: Changes in Muslim Family Law in India”
(2008) 33 Law & Social Inquiry 631 <http://www.jstor.org/stable/20108777>.
xxxv In Muslim personal law, men get double the share of women hence they always inherit in a 2:1 ratio. The
rationale was that since men had financial obligations towards women i.e. providing maintenance, mehr and other
expenses, they would require more property to fulfil these duties. See Mahesh Tandon, “Textbook of
Mohammedan Law” Allahabd Law Agency (1984).
xxxvi Prachi Ojha, “An Overview on Women's Right in India for Property” (Advaya Legal BlogNovember 4,
2019) <https://www.advayalegal.com/blog/womens-right-to-intestate-succession-thoughts-on-gender-disparityin-india/> accessed May 3, 2020.
xxxvii
“Take the example of a Muslim intestate being survived by the predeceased daughter’s children, and son of
a predeceased son of the deceased father’s brother’s son’s son. In this case, the daughter’s children being female
descendants will be completely excluded by this male agnate who will inherit the total property, even though he
is more distantly related.” See Poonam Pradhan Saxena, “Succession Laws & Gender Justice” in Archana Parashar
and Amita Dhanda (eds.), Redefining Family Law in India, Routledge, New Delhi, 289 (2008).
xxxviii Hammed Khan v Peare Mirza (1935) AIR Oudh 78.
xxxix Lucy Carrol, Daughter’s Right to Inheritance in India: A Perspective on the Problem of Dowry, Cambridge
University Press 791 (1991).
xl By virtue of Section 30 of the Hindu Succession Act, the father could convert his joint property interest to
separate property via a Will, thereby completely disinheriting the daughter.
xli Section 2 of The Muslim Personal Law (Shariat) Application Act, 1937 provides that: “Notwithstanding any
custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate
succession, special property of females, including personal property inherited or obtained under contract or gift
or any other provision of Personal Law ... the rule of decision in cases where the parties are Muslims shall be the
Muslim Personal Law (Shariat).”
xlii Bina Agarwal, “Can We Unify Inheritance Law?: India News - Times of India” (The Times of
IndiaSeptember 19, 2017) <https://timesofindia.indiatimes.com/india/can-we-unify-inheritancelaw/articleshow/60740547.cms> accessed May 3, 2020.
xliii Bina Agarwal, “Can We Unify Inheritance Law?: India News - Times of India” (The Times of
IndiaSeptember 19, 2017) <https://timesofindia.indiatimes.com/india/can-we-unify-inheritancelaw/articleshow/60740547.cms> accessed May 3, 2020.
xliv Haq Tyag translates to "sacrificing one's right". Daughters are made to sign away their inheritance rights by
the male family members in an attempt to keep their shares larger. See Poorvi Gupta, ‘Haq Tyag’ Tradition Still
Prevails in India” (SheThePeople TVDecember 10, 2016) <https://www.shethepeople.tv/news/haq-tyagtradition-still-prevails-in-india> accessed May 3, 2020.
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