Indian inheritance laws ‘assume’ that only men are the providers of the family
By Urmi Ashok Badiyani *
The subject of inheritance is governed by personal laws in India. Personal laws govern marriage, divorce, alimony, inheritance and succession of citizens. These laws differ depending on the religion to which a person belongs.
For example, all Muslims in India are governed by the Muslim Personal Law Enforcement Act (Sharia), 1937, while all Hindus are governed by laws such as the Hindu Succession Act of 1956, the Hindu Marriage Act 1955 and the Hindu Code Bill. These personal laws govern how a person’s property is inherited. In addition to these laws, there are state laws that govern the inheritance of certain assets such as land.
In most personal laws, the way property is inherited by members differs for men and women. A Muslim daughter inherits only half of the inheritance given to a Muslim son, and a wife’s right to own a husband’s property is half a husband’s right to a wife’s property. It is also interesting to note the terminology used by the laws. Sons are considered to share properties while daughters are considered to be residuals.
The parents of a Hindu woman have a right to her property only if she has neither husband nor children, but the same is not the case with a Hindu man. A Parsi woman loses her inheritance right if she marries a non-Parsi. Likewise, a non-Parsi wife cannot claim an inheritance from her husband’s estate.
Bias in State Laws
While the inheritance of property is governed by personal laws which are uniform across the country, the inheritance of agricultural land is governed by state laws. In states like Uttar Pradesh (until 2020) and Uttarakhand, transgender people were not allowed to inherit land. In states like Haryana, Himachal Pradesh, Jammu and Kashmir and Punjab, girls do not inherit farmland from their parents.
These inheritance laws have two major implications:
- Women have unequal access to financial assets. Asset ownership in India is biased in favor of men. The exact magnitude of this cannot be calculated due to the lack of data on the subject collected by the government.
- Since all laws are written in gender binary, people who identify as gender fluids or non-binary are completely excluded from inheritance laws. During inheritance cases, these people are forced to be classified as male or female to claim their shares. This identity is sometimes taken from their birth certificate. There are many cases where such people are denied the right to inherit family assets, which puts them under financial stress.
The percentage of total property owned by women and transgender people is quite low in India. It gets even worse when we talk about productive assets such as farmland. These laws create a framework in which a part of our society flows from accessing financial equality and creating financial stability for itself.
Generation after generation, the concentration of assets in the hands of men is increasing and the disparity that currently exists would continue or worsen if the biased laws continue to exist.
Why are these laws even present?
The laws are based on the assumption that men will be the providers of the family with responsibility for meeting the needs of the family, women will undertake unpaid work in the home, and non-binary people will be eliminated from the system.
Also, there is an underlying idea that men are heirs and carry on the family inheritance due to which they inherit the wealth from their parents, while women are married and receive a share of their wealth in the form of movable goods such as jewelry. These assumptions about the division of labor and strict gender limits led to the creation of these gendered inheritance laws.
Generation after generation, the concentration of assets in the hands of men is increasing and the disparity that currently exists would worsen
Article 14 of the Indian constitution states that no person shall be denied equality in the eyes of the law and article 15 states that there shall be no discrimination against a citizen for reasons of religion, race, caste, sex and place of birth.
From reading the rules set out above, it is clear that the existing inheritance laws deny the right to equality and non-discrimination that India’s constitution grants to its citizens as fundamental rights.
Learn from other countries?
Inheritance laws in countries like the United States and France are written in non-sexist language. Rather than using words like sons and daughters, gender neutral words like parents, children and spouses are used. The use of these non-sexist words creates a legal ecosystem in which a person is entitled to inheritance regardless of their sex and the current elimination of non-gender binary people and prejudices against women can be changed.
An approach similar to that taken by countries like the United States and France can be taken in India, and gender references in inheritance law can be removed from statutes and replaced with gender-neutral terminology.
In the laws of states where inheritance of agricultural land by women is not allowed due to fear of land fragmentation, an option such as the first right of refusal means that if a legal heir wants to sell their plot of land, the siblings will have the first right to buy the land at market value.
With these changes, an equal and impartial legal system can be created for the people of the country, regardless of their gender identity.
* Second year student at the Indian Institute of Management, Ahmedabad