The Hindu Succession (Amendment) Act, 2005

This Act was passed to address the inequalities in succession to agricultural land, Mitakshara joint family property, parental dwelling house and certain widow’s rights.

One of the most significant amendments in the Hindu Succession (Amendment) Act, 2005 is the deletion of the gender discriminatory Section 4 (2) of the 1956 HSA. Section 4(2) exempted from the purview of the HSA significant interests in agricultural land, the inheritance of which was subject to the devolution rules specified in State-level tenurial laws.In States where these laws were silent on inheritance, the HSA applied by default, as also where the tenurial laws explicitly mention the HSA. But, in Delhi, Haryana, Himachal Pradesh, Punjab, Jammu and Kashmir and Uttar Pradesh, the tenurial laws specified inheritance rules that were highly gender unequal. Primacy was given to male lineal descendants in the male line of descent and women came very low in the order of heirs.Also, women got only a limited estate and lost the land on remarriage.Moreover, in U.P. and Delhi, a “tenant” is defined so broadly that these inequalities effectively covered all agricultural land. U.P. alone has 1/6 of India’s population. This clause thus negatively affected innumerable women farmers.The 2005 Act brings all agricultural land on par with other property and makes Hindu women’s inheritance rights in land legally equal to men’s across States, overriding any inconsistent State laws. This can benefit millions of women dependent on agriculture for survival.

Gender equality in agricultural land can reduce not just a woman’s but her whole family’s risk of poverty, increase her livelihood options, enhance prospects of child survival, education and health, reduce domestic violence, and empower women. Research shows that women’s risk of physical violence from husbands is dramatically less if they own land or a house: the incidence is 49 per cent among women without property but 18 per cent among landowning women and seven per cent if they own both land and house. Land in women’s hands can also increase agricultural productivity, given male outmigration and growing female-headedness.

There is a popular misconception that gender-equal inheritance laws can only benefit a few women. In fact, millions of women — as widows and daughters — stand to gain. Calculations based on NSS data for all-India indicate that at least 78 per cent of rural families own some agricultural land; and if we include homestead plots, 89 per cent own land. Although most own very small fields, rights even in these can provide supplementary subsistence.

The risk of fragmentation is a misleading argument used to selectively disinherit women. Fragmentation can occur even when sons inherit. In practice, many rural families continue to cultivate jointly even when parcels are owned individually. The same can hold for daughters. Fragments per holding for all-India actually declined from 5.7 in 1961 to 2.7 in 1991.

Another argument is that women migrate on marriage. But one might ask: if men retain their claims despite job-related migration, why shouldn’t women on marriage-related migration? They could lease out the land to their family or someone else, or cultivate it cooperatively with other women. This would give women some economic security, however small.

The second major amendment via the Hindu Succession (Amendment) Act, 2005 is including all daughters, especially married daughters, as coparceners in joint family property.The 1956 HSA distinguished between separate property and joint family property. The separate property of a (non-matrilineal) Hindu male dying intestate (that is without leaving a will) devolves, in the first instance, equally on his class I heirs, namely, son, daughter, widow and mother (plus specified heirs of predeceased children). If previously governed by Dayabhaga, this rule applied also to joint family property. But, if previously governed by Mitakshara (which covers most of India), a different rule applied. In the deceased man’s “notional” share in Mitaksara joint family property, the class I heirs were entitled to equal shares. But sons, as coparceners in the joint family property additionally had a direct birth right to an independent share; while female heirs (e.g. daughter, widow, mother) had claims only in the deceased’s “notional” portion. Also, sons could demand partition; daughters could not.The 2005 Act does not touch separate property (except broadening the class I heirs). But it includes daughters as coparceners in the Mitaksara joint family property, with the same birthrights as sons to shares, to claim partition, and (by presumption) to become karta (manager), while also sharing the liabilities. In addition, the Act makes the heirs of predeceased sons and daughters more equal, by including as class I heirs two generations of children of predeceased daughters, as was already the case for sons.

Making all daughters (including married ones) coparceners in joint family property is of great importance for women, both economically and symbolically. Economically, it can enhance women’s security, by giving them birthrights in property that cannot be willed away by men. In a male-biased society where wills often disinherit women, this is a substantial gain. Also women can become kartas of the property. Symbolically, all this signals that daughters and sons are equally important members of the parental family. It undermines the notion that after marriage the daughter belongs only to her husband’s family. If her marriage breaks down, she can now return to her birth home by right and not on the sufferance of relatives. This gives women greater bargaining power in both parental and marital families.

Giving married daughters coparcenary rights from the start is unusual. Except Kerala which abolished joint family property altogether, in other State-level amendments of the 1956 HSA — viz. Tamil Nadu, Andhra Pradesh, Karnataka and Maharashtra — only daughters unmarried when the amendments were passed got coparcenary rights. Notably, however, they retained this right on subsequent marriage, and fears of extensive litigation by such married daughters have proved false.

Thirdly, the Hindu Succession (Amendment) Act, 2005  deletes Section 23 of the 1956 HSA, thereby giving all daughters (married or not) the same rights as sons to reside in or seek partition of the family dwelling house.Section 23 did not allow married daughters (unless separated, deserted or widowed) even residence rights in the parental home. Unmarried daughters had residence rights but could not demand partition.Under the 2005 Act, married daughters will also benefit by the deletion of Section 23, since now they will have residence and partition rights in the parental dwelling house. Now women facing spousal violence will have somewhere to go.

Fourthly, the Act deletes Section 24 of the 1956 HSA, which barred certain widows, such as those of predeceased sons, from inheriting the deceased’s property if they had remarried. Now they can so inherit.