Inheritance gives a headstart in life. From the literature of Jane Austen to the theories on modern inequality, the importance of inheritance in shaping a person’s status, class, and income in society cannot be denied.
Only the wise, after a lifetime wasted in figuring out ways to create wealth, come to realise the three time-tested steps to becoming rich: marriage, inheritance and entrepreneurship. While marrying into wealth is the oft-opened door for women and entrepreneurship seems to be slowly working for some of them, inheritance was often deemed the last citadel to fall for the path to a gender equal world. In that sense, Supreme Court’s August 11 ruling is epochal.
All the noise notwithstanding, the order is technically a mere clarification to the Hindu Succession (Amendment) Act, 2005 (HSAA) which granted male and female siblings equal rights over ancestral property. The August 11 order clarifies that the woman’s right stands legal irrespective of whether her father is living or has died. This clarification is at once a relief and a grim revelation.
For years, the confusion on the HSAA has held women from claiming their rights even as the prolonged struggle for the confusion to clear reminds us of the challenges that continue to mar the struggle for women’s inheritance rights in India. In retrospect, the 2005 Act upset the gender inequality apple cart, even if only in inheritance rights — society just wasn’t ready for women’s claim over ancestral property that for years remained the sole claim of male heirs in Hindu families.
Multiple petitions challenging the HSAA’s equal inheritance rights for men and women have reflected the persistence of toxic Indian social mores and cultural norms that designate, in a misogynist fashion, sons as superior beings to women at birth. They have questioned if women could be granted these rights even after their fathers had died. Obviously, no one ever asked the male heirs to ancestral property if they could claim their share when their fathers had died. Until the August 11 ruling, this charade was reserved for women who asserted their inheritance rights in courts.
Numerous judgments didn’t help the situation with conflicting rulings over the years, sometimes granting the right only to living daughters of living fathers, and sometimes granting it to daughters irrespective of whether the daughter was living. There have been many flip-flops along the way with courts often reversing the rulings of other courts to limit the law’s application to daughters of living fathers alone. In some instances, the courts conferred the rights for property to the women’s husbands’ extended families in the absence of children, even if the property was solely earned by women.
That the Hindu Succession Act 1956 is inherently a law with gender discrimination, makes the fulcrum of property rights discourse in India. Denying unequal footing to men and women places the law in direct conflict with the fundamental rights prescribed under the Constitution. The law has discriminatory flaws in plenty: from treatment of natal families of men, male and female relatives, heirs and lineage, to the scheme of devolution of property, the law treats women unfairly. The inherent discrimination makes the 1956 Act outdated and outlandish in more ways than one, given that women’s position in the economy has undergone a transition in the years since the law was drafted. Riding on increased access to higher and professional education, more Indian women are in the workforce today and many more own property, open savings accounts and run businesses.
That said, will granting equal property rights enhance gender equality in India? Between 1970 and 1990, inheritance rights for women were equalised with the rights of men by five Indian states of Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra, and Karnataka in legislative reforms. The evidence has been mixed, especially with respect to the HSA and its staggered implementation which records negative effects of more equal rights, ranging from an increase in suicides among both men and women, to a flare-up in household conflicts and domestic violence.
More recently, a paper released in August 2018 pointed to an exacerbation of the ‘historic’ son preference in India specifically in the context of the legislation of equal inheritance rights for women indicating that the reform in HSAA encouraged female foeticide and female infant mortality. This is not good news for the struggle for equal property rights for women, which has been seeking equal footing for women in access to and devolution of land and property, and not merely inheritance rights to ancestral property.
In the coming years, how far the Indian State can reform the HSA will decide how far India can advance itself. Discriminatory property and land laws not just compromise the socioeconomic position of women, they also hinder their access to credit and labour market opportunities.
In India, where a large percentage of land and property are still acquired by inheritance, unequal inheritance rights will not just keep women poor, but also increase their dependence on men leading to unequal economic and social outcomes for both households and economy.
Pallavi Singh is a business historian in training. Views are personal.