From Patriarchy to Equality: Evolution of Succession Laws in India

Written & Researched by Huma Qurban (Pursuing LL.M from Campus Law Centre, Delhi University)

INTRODUCTION:

The development of property rights for Hindu women is evidence of the evolution of gender equality in Indian society and law. This study examines the historical, legal and social contexts that have shaped and changed the property rights of Hindu women from ancient times to the present. This study attempts to reveal the complex and problematic progress in the field of inheritance for Hindu women by exploring the interplay of cultural, social and cultural influences in society, changes in laws and changes in culture. The study first examines the pre-colonial period and highlights the complex role played by women in ancient Hindu scriptures and laws. The article concludes with a comprehensive examination of the development of women’s rights in Hinduism, which supports the current debate on gender justice and opens the door to more informed decision-making and social progress. This historical context provides a framework for understanding the evolutionary changes that have occurred over the centuries, and this article evaluates the effectiveness of these changes in the context of the differences between official pronouncements and their application in the lives of Hindu women1. For the 80.5% of Indians who identify as Hindu, Sikh, Buddhist, or Jains, inheritance and succession are governed by the Hindu Succession (Amendment) Act, 2005. In order to empower women, the Hindu Succession Act of 1956 was changed in 2005 to grant them the same inheritance rights as men. But fourteen years later, numerous studies show that the causes of gender equality between men and women have not made much progress. This essay aims to trace the development of equity and succession rights in India from the colonial to the post-independence periods. The majority of research in this field either start or stop with the independence era, but there is currently no discernible difference, according to Eleanor Newbiggin’s book. However, the 2005 amendment represents a fundamental shift. Therefore, it is essential that the body of law be viewed as a continuous process, where each new development is influenced by the one that came before it. When someone receives property or a title from their ancestors, this is referred to as succession. When there is an intestate transaction, or the transfer of property through the use of the law, succession rules are relevant. Different sets of personal laws govern property inheritance in India, including the Indian Succession Act of 1925, Muslim law that only applies to Muslims, and Hindu law that only applies to Hindus. When the last owner of property passes away without leaving a will, gift, or other arrangement for the property's execution, succession laws—also known as intestate transactions—come into play. If the last holder leaves a will, the property is divided in accordance with it rather than intestate.

The development of property rights for Hindu women is evidence of the evolution of gender equality in Indian society and law. This study examines the historical, legal and social contexts that have shaped and changed the property rights of Hindu women from ancient times to the present. This study attempts to reveal the complex and problematic progress in the field of inheritance for Hindu women by exploring the interplay of cultural, social and cultural influences in society, changes in laws and changes in culture. The study first examines the pre-colonial period and highlights the complex role played by women in ancient Hindu scriptures and laws. The article concludes with a comprehensive examination of the development of women’s rights in Hinduism, which supports the current debate on gender justice and opens the door to more informed decision-making and social progress. This historical context provides a framework for understanding the evolutionary changes that have occurred over the centuries, and this article evaluates the effectiveness of these changes in the context of the differences between official pronouncements and their application in the lives of Hindu women1. For the 80.5% of Indians who identify as Hindu, Sikh, Buddhist, or Jains, inheritance and succession are governed by the Hindu Succession (Amendment) Act, 2005. In order to empower women, the Hindu Succession Act of 1956 was changed in 2005 to grant them the same inheritance rights as men. But fourteen years later, numerous studies show that the causes of gender equality between men and women have not made much progress. This essay aims to trace the development of equity and succession rights in India from the colonial to the post-independence periods. The majority of research in this field either start or stop with the independence era, but there is currently no discernible difference, according to Eleanor Newbiggin’s book. However, the 2005 amendment represents a fundamental shift. Therefore, it is essential that the body of law be viewed as a continuous process, where each new development is influenced by the one that came before it. When someone receives property or a title from their ancestors, this is referred to as succession. When there is an intestate transaction, or the transfer of property through the use of the law, succession rules are relevant. Different sets of personal laws govern property inheritance in India, including the Indian Succession Act of 1925, Muslim law that only applies to Muslims, and Hindu law that only applies to Hindus. When the last owner of property passes away without leaving a will, gift, or other arrangement for the property's execution, succession laws—also known as intestate transactions—come into play. If the last holder leaves a will, the property is divided in accordance with it rather than intestate.

BACKGROUND

The Emergence of Different of School of Law with respect to Succession Law. According to ancient Hindu mythologies, the earliest texts of Hindu religion were created by Lord Brahma in the form of four Vedas that is the Rig Veda, Athrava Veda, Sama Veda and Yajur Veda. Ancient Hindu sages added various Smritis and Shrutis to the Vedic literature, many dealing explicitly with issues of property and women’s rights regarding it. Hindu laws of succession in particular have historical roots in the Mitakshara and Dayabhaga schools of law, which are ancient Hindu legal sources from which modern law is derived. Mitakshara Law School: This school was followed throughout India, except the eastern part, and it is divided into four sub schools on the basis of geographic region which are the Dravida Law School, Maharashtra Law School, Banaras Law School, and Mithila Law School. Individual property and coparcenary property are the two categories of property that are distinguished under the Mitakshara system. Male persons who are included in the four-generation line down to the final holder of the property are considered coparceners. Joint family property is typically made up of jointly held family property in which all coparceners have an interest from birth. The owner of separate property had complete rights, whereas the owner of joint property had limited rights. According to Mitakshara law, which said that women only had the right to maintenance of the joint property, women can have a limited interest in separate property, even in the absence of sons and agnatic heirs.

The Mitakshara School is differentiated by three characteristics which are as follows:

1. The importance of blood relationship in matters of inheritance,
2. The restrictions placed on coparceners’ share in the joint family property,
3. The distinction between male and female heirs.

Dayabhaga School: The second most prominent school of law after Mitakshara school, the Dayabhaga School was mainly followed in the eastern part of the country, especially in the provinces of Bengal and Assam, and it has not sub schools. Accordingly, there was no distinction between the man's individual property and joint family property, and he was the sole owner of all of his assets. According to this school, the son did not inherit the right; instead, the distribution could only take place when the owner passed away, with the sons receiving the largest share first. A chaste widow may inherit a property with a restricted interest in the absence of a male heir, but she was not allowed to alienate it, which meant she was not allowed to sell, give, or mortgage it.

Evolution of Succession Laws:

When the British took over India in the eighteenth century, they had the challenge of ruling the indigenous population. They were astounded by India's diversity and found it quite difficult to manage such a sizable populace. The British administrators chose to alter Indian laws to make their administration easier, despite their best efforts to avoid interfering with the private laws of various tribes. In 1772, Warren Hastings, the governor of Bengal, proclaimed that Hindu law should only be derived from old writings and traditions. In order to explain the development of law during the colonial era, Bina Aggarwal divides the colonial history of succession into two keyframes: the later 18th to early 20th century and the early to mid-20th century. This serves as a precise indicator for understanding succession laws as well. She argues that Hindu law, which was influenced by the Vedic writings (shastras) and commentaries yet differed significantly from them, was based on local standards even prior to British administration. They had little understanding of Indian customs or decision-making once they started to engage in the topic, therefore they relied on pundits, qazis, or English legal principles. This had a significant impact on women's property rights and increased discrimination against them. Even though there were changes made to better the lot of women during this time, such the 1829 ban on Sati, the laws governing inheritance did not change. The situation changed in the second phase, which took place in the early to mid-20th century, as a consequence of growing pressure from women's organizations like the All-India Women's Conference (1927) and the Women's Indian Association (1917). The election of some Indian attorneys to the government's central legislative assembly helped with this. However, this shouldn't be viewed in a vacuum; Eleanor Newbigin offers an intriguing viewpoint by pointing out that the reformatory laws of the era were primarily an effort by the colonists to increase their tax revenue in order to pay for their post-war bills. For example, the 1937 Hindu Women's Right to Property Act was created to turn coparcenary property into separate property in order to increase tax revenue for the proprietors. Hindu widows were granted the right to claim their deceased husbands' property, but only in a limited capacity, meaning she could not alienate it. This conversation gives us the crucial understanding to see reformatory legislation from a political-economic standpoint rather than as always well meaning actions.

Law related to Succession after Independence:

Pre-Independence laws had an impact on after independence law in India. Nevertheless, the Indian Constitution which was introduced with the intention of promoting equality, offered the Indian society additional dimensions. Nevertheless, the personal laws were retained for a number of reasons that cause the laws to apply differently to other religions as well. Article 372 of the Indian Constitution allows for the continuation of existing laws and their adaptation, stating that laws that were in effect before the Constitution of India was enacted will remain in effect unless they are repealed or amended by a competent legislature or authority. continuation for Hindus, The Mitakshara legislation of "holding property" was criticized, leading to the passage of the Hindu Succession Act of 1956. However, the Hindu Succession Act of 1956 was passed in response to criticism of the Mitakshara law of "holding property," and the traditional personal laws underwent several revisions over time to become more equitable and fairer. First, the Act eliminated the several types of Stridhana and created a common inheritance framework for all Hindus in the nation, eliminating the disparities between the Mitakshara and Dayabhaga schools of Hindu law. Sons, daughters, widows, and mothers were all considered class I heirs and were given equal shares of the deceased men's separate property. They also had the authority to alienate such property. The law did have some basic issues, but in the case of coparcenary property, the women were also granted an equal share of the "national" component of the deceased person's assets. Although a male is born with the right to be a coparcener, Section 6 of the Hindu Succession Act, 1956, prohibited the females (daughters) the right to be coparceners of the undivided Hindu Coparcenary property. Furthermore, gender-biased state regulations worked against women's liberation because Section 4(2) of the act gave primacy to state-level tenurial standards in cases of succession of agricultural lands. Section 23 of the legislation states that a female heir cannot request that the residential family home be divided. Section 24 of the said Act limited the widow's rights in the event that she decided to get married again. To put it mildly, the 1956 act was a compromise since it upheld the stereotype of women as housewives. While several Indian states, such as Andhra Pradesh and Karnataka, made gender-neutral amendments to Section 6 of the Hindu Succession Act of 1956 in 1986 and 1994, respectively, a nationwide overhaul of gender-neutral legislation was still long overdue. After taking Suo Moto awareness of regulations that discriminate against women, the 174th Law Commission developed a bill to amend the Hindu Succession Act of 1956, which was enacted in 2005.

The Hindu Succession (Amendment) Act, 2005:

The most significant achievement of the Hindu Succession (Amendment) Act of 2005 was the removal of section 6 of the Hindu Succession Act of 1956, which discriminated against daughters in coparcenary property and allowed daughters to be coparceners by birth. Additionally, it did away with Section 4(2) and the state-imposed succession restriction on agricultural land. The unfair treatment of widows and the denial of daughters' right to partition in the family home were addressed by the repeal of Sections 24 and 23, respectively.

 The said amendment brought changes in various rights of female in succession which are as follows:-

1) Abolishing the Estate of a Hindu Male Coparcener

2) Coparcenary Rights of Daughters

3) Devolution of Property of a Female Hindu Dying Intestate

4) Equal Rights of Daughters in Parental Property

5) Rights to Alienation and Management

6) Widow’s Limited Interest in Joint Family Property

 India's dedication to social justice and gender equality is exemplified by the Hindu Succession Act of 1956. Its provisions challenged long-standing conventions and established a legal basis for women's empowerment, reshaping the boundaries of women's property rights. The Act radically changed the dynamics of property relations within Hindu families by addressing several aspects of property ownership, from management to succession. The Hon’ble Supreme Court held, in the case of Prakash & Ors, vs Phulavati & Ors, that the Hindu Succession (Amendment) Act, 2005 grants coparcenary rights to the daughter of a living coparcener, provided that the father and daughter were both alive on November 9, 2005. In its ruling, the Supreme Court emphasized that the 2005 Amendment sought to acknowledge daughters as coparceners by birth and to prevent discrimination based on gender. The Court observed that the purpose of the Amendment was to eliminate historical injustices by granting daughters equality in inheritance concerns. After analysing the Amendment's wording and legislative intent, it was determined that the Amendment ought to be applied retroactively to every instance, irrespective of the father's passing date. The Indian Constitution's guarantee of gender equality and justice was upheld by the Court's decision. In the case of Danamma vs Amar Singh which is the landmark judgment and the Hon’ble Supreme Court explores the Hindu Succession (Amendment) Act, 2005's retroactive effect and how it affects daughters' inheritance rights in Hindu Undivided Families (HUFs). This significant ruling dismantled longstanding gender-based inequities in the area of Hindu succession rules and shed light on the dynamics of coparcenary property rights. The is that whether Section 6 of the Hindu Succession (Amendment) Act, 2005, which granted daughters coparcenary rights, had retroactive effect and would apply even in situations where the father had passed away before the Amendment was the main legal question before the Supreme Court. The Court emphasized that the Amendment was put into effect to recognize daughters' inherent right to inherit property, independent of when they were born or when their father passed away. The Court's reasoning emphasized that the daughter's claim to coparcenary rights should not be conditioned on the father's survival after the Amendment went into effect, since it was inherent to the daughter's birth. According to the statement, the devolution of coparcenary property was covered by the retroactive effect of Section 6 of the Amendment. The decision upheld the Amendment's goal of achieving social justice and real gender equality. It made clear that patriarchal standards and discrimination based on gender had no place in the interpretation of the Amendment. In the case of Vineeta Sharma vs Rakesh Sharma, the Honourable Supreme Court issued an order in which it stated, "Sons are sons until they get married, but daughters remain daughters forever." This illustrates how stigma and stereotypes are being eliminated in society and are being eliminated in comparison to the past as the Honourable Court defended women's rights. A significant ruling in this case definitively resolved the questions of daughters' coparcenary rights and the 2005 Amendment's retroactive application. Regardless of the father's survival or the date the Amendment was passed, the ruling created a uniform legal framework by highlighting the fact that daughters are coparceners from birth. The present case is a significant advancement for female equality in property rights. This ruling upholds the fundamental principles of gender fairness and equal opportunity in addition to bolstering women's status as property owners.

CONCLUSION:

The study looked at how both colonial and post-colonial countries' property laws contributed to women's marginalization by upholding gender inequality while favouring men's privilege. The main focus of this essay is how patriarchy and colonial rulings impacted women's claims to property rights. Hindu women were subject to the ancient Hindu laws of mitakshara and dayabhaga for more than a century. Women's rights were severely restricted and constrained under Hindu law. The interpretation of Hindu texts was the sole source of authority for the colonial courts. Even Anglo-Hindu law was merely a brahminization of existing laws, which limited women's property rights. As we approach a time of transformation, it is our shared duty to vigorously support women's property rights, acknowledging their capacity to influence a fair, equal, and successful society for everyone. The empowerment we establish now will have a lasting impact on future generations, creating a more optimistic future where women's voices are acknowledged, their rights are protected, and their contributions are honoured. In summary, the process of improving women's property rights in Hindu society demonstrates the determination of individuals, the adaptability of legislative changes, and the shifting patterns of societal norms. The plot revolves around progress and potential, spanning from past limitations to current obstacles. The Hindu Succession Amendment Act of 2005 was a significant turning point in Indian legal history and a definite step toward gender equality for Hindus with regard to inheritance matters. By amending the Hindu Succession Act of 1956, the 2005 Act eliminated long standing gender discriminatory rules, particularly those that disadvantaged daughters with regard to family property. Hindu households and society have been greatly impacted by the amendment's primary provisions, which include removing discriminatory language, retroactively adopting the changes, and granting daughters the same rights as sons over ancestral property. The amendment not only righted historical wrongs but also paved the way for a fair and just legal framework governing Hindu inheritance.