In its recent judgment, the Supreme Court ruled that a daughter has the same rights as a son in an ancestral property under the Hindu Succession (Amendment) Act, 2005, regardless of when the father may have died. The principle law - the Hindu Succession Act, 1956 (HSA) - originally did not grant daughters rights in ancestral property. The amendment in 2005 fixed this particular form of discrimination by granting daughters rights equal to sons in ancestral property. This amendment and the subsequent Supreme Court ruling are significant steps towards removing gender-based discrimination in the HSA. However, the provisions of HSA which govern the devolution of property of a deceased woman are still firmly rooted in outdated assumptions, from the time when Hindu personal law was codified.
The provisions of the HSA that govern the devolution of property treat the Hindu joint family as central to all matters of inheritance. Traditionally, the joint family is led by a patriarch and lineage is only counted when it is through male relations. Therefore, the HSA tries to retain property within the husband’s family as far as possible, when a woman dies childless resulting in unfair discrimination against the woman’s natal family. This holds true even when the woman has acquired the property through her own skill and effort. The husband’s natal family has a stronger claim to the woman’s self-acquired property than her own parents if she dies childless. However, we do not see any reciprocal provision for the property belonging to the husband.
The notion that the law should try to preserve property in a Hindu joint family is based on two outdated assumptions. First, that the joint family is the most relevant and important unit of societal organisation among Hindus. Second, that women do not have the wherewithal to acquire and manage their own property. The fact that these assumptions underpin the schemes of devolution is explicitly acknowledged in the report of the Hindu Code Bills committee (1944), which was responsible for drafting the bills which constitute Hindu personal law, as well as in 174th Report of the Law Commission of India (2000). Both these assumptions are out of touch with today’s reality.
The joint family is becoming increasingly irrelevant as an institution. According to the Census of India the average family size of Hindu households reduced from 5.16 persons per household in 2001 to 4.9 persons per household in 2011. According to the Census 2011, the median family size in urban areas has dropped below 4. This is part of a larger trend of reduction in family size over the years and shows just how irrelevant joint families have become. Interestingly, even the Hindu Code Bills committee expressed this same opinion in its report in 1944. BN Rau, the chair of the committee (and a man who would later play a pivotal role in drafting the Constitution of India), noted that the institution of a Hindu joint family is outdated and should be abolished.
The second assumption - that women do not have the capacity to acquire, hold and manage their own property - is refuted by examining the socio-economic status of women today. Interestingly, the Hindu Code Bills committee called this argument speciousin its own report. Proponents of this argument pointed to the low literacy rate among women to justify this argument. However, the Committee itself refuted this claim by pointing out that the literacy rates among men were not significantly higher either. Regardless, the HSA, as passed by the Parliament, included the differential schemes of devolution. The arguments regarding women's capacity to manage property were weak to begin with, but they are weaker still today.
Far more women today are employed than there were at the time the HSA was enacted. The workforce participation rates for women have increased from 12% in 1971 to 25% in 2011 according to the Census of India. The National Family Health Survey (NFHS) 2015-16 reports that 28% of women (between the age of 15--49) own land --- either jointly or by themselves --- and 37% own a house (jointly or by themselves), 53% of women have savings accounts in banks. Women own 21.5% of all proprietary establishments in the country according to the Ministry of Statistics and Programme Implementation, Government of India (MoSPI). Women's literacy has increased from 9% in 1951 to 65% in 2011 according to the Census. Women today represent 46% of the total annual enrolments in higher education, and women are 53% of the total post-graduate degrees awarded every year, according to MoSPI.
More women today possess the education and capacity to acquire and manage their own property than in the past. More and more women are on the path to earning incomes and acquiring property in the future. This fundamental change in the status of women demands a fundamental change in the treatment of their property under the law. While this provision only kicks in after death, her lack of ability to provide for her natal family even after her death vis-a-vis a man’s ability to do the same impacts how women’s role is perceived in society.
There are three demographic trends in the Indian population which add to the urgency of this reform. First, according to the Census 2011, there were 4.95 crore women in India who were or had been married, and had no surviving children, up from 2.4 crores in 1981. Second, India’s total fertility rate has declined from 5.91 in 1960 to 2.51 in 2017, which means that women have fewer children today than they used to in the past. Third, the number of widowed women in India increased from 2.4 in 1961 to 4.3 crore in 2011. The increase in the number of widowed women far outstrips the increase in the number of widowed men. This is likely in part because the average life expectancy for women is and has been higher than it is for men, and the rates of remarriage for women are far lower than they are for men. Put together, this means that the pool of women who are widowed and do not have children will likely be higher in the future than today. It is this growing pool of women who are and will continue to be affected by the HSA’s discriminatory provisions.
The assumptions which underpin the provisions in the HSA that govern the devolution of women’s property are no longer valid. The number of women who will be adversely affected by them is only going to grow over time. It is imperative that we acknowledge the reality of today’s society and treat women on par with men. The Parliament needs to recognise that making the HSA truly gender-neutral is a reform whose time has come.
Devendra Damle is Research Fellow at NIPFP, New Delhi.
The views expressed in the post are those of the authors only. No responsibility for them should be attributed to NIPFP.
The article was published in The Hindustan Times on September 10, 2020.