17November2018

Inheritance of loss

The amendment to the Hindu Succession Act in 2005 has done little to empower women to claim their rightful share of family wealth.

There is a bizarre Indian inheritance law if a childless widow dies intestate,everything that belongs to her goes to her in-laws,and that includes all the wealth she acquired in her lifetime through her own efforts. However,if a widower dies in a similar fashion,his property will go only to his parents and family, but, most definitely,not to his wifes parents! Why the double standard? Well,that is just how it is.

This is just one of the many in-built illogical biases in property laws in India and many other countries. For instance, Tanzanian property laws do not allow married women to transact property without their husbands permission. Husbands,of course, are not required to seek spousal consent. Take almost any part of the world,any section of society or any population group, juggle statistics any which way you want, the conclusions are the same women are discriminated against when it comes to wealth and property.

Women comprise more than 50 per cent of the worlds population but they own less than 1 per cent of the worlds wealth, says the United Nations. Women do two-thirds of the worlds work but earn only 10 per cent of the income.

There is no dearth of figures to show the raw deal women get when it comes to ownership of property and wealth. And there is no dearth of platitudes and good intentions expressed by the worlds tallest leaders and most influential international institutions and organisations.

Investing in women and girls has a multiplier effect on productivity and sustained economic growth. Investing in women is not only the right thing to do. It is the smart thing to do, Ban Ki Moon,the secretary-general of the United Nations, had said. The World Bank too calls investing in women smart economics because research shows economic growth for women has a valuable multiplier effect. Women are more likely to share their economic gains with their families and communities at large.

Moreover, women’s equal rights to land,housing and property are also human rights, recognised in various international human rights instruments. Yet,laws and social customs,and most crucially practices, continue to be skewed against women getting their fair share of wealth.

In India,during the debate on the Hindu Code Bill in Parliament, a majority of the legislators,all men,took a stand against daughters inheriting property from their natal families. Thus,the Hindu Succession Act (HSA) of 1956 did not allow women the right to ancestral property. It was amended as late as 2005 to give daughters equal rights.

In India,there are three sources of land-ownership for women land transferred from the government, from the market, and through family inheritance. However, inheritance is the most significant because 87 per cent of land is privately owned and hence the amendment is of great importance.

The HSA applies to Sikhs,Buddhists and Jains, but the Christians have their own code and the Muslims have theirs. Then there are the tribal communities of various states whose property rights are governed by their customs and norms. To complicate the issue even further, states are allowed to enact their own succession laws. A womans property rights vary depending on her religion,her marital status,the state she comes from and her tribal identity.

All these variations mean that there is no single set of laws that governs the rights of an Indian woman to property. However, what unifies all these various laws is their immunity from constitutional protection against bias and inequality. The amendment to give women equal rights in family property was significant especially as it covers over 80 per cent of the population. Many women have filed cases seeking their share under this amended law and such cases are being heard in courts across the country. However, the number is still small because most women hesitate to ask for their share in property they are afraid of spoiling their relationship with their families, says Kirti Singh, legal convenor of the All India Democratic Women’s Association.

The reality revealed by the 2000-01 agricultural census is that of almost 120 million landholders, nearly 13 million, or a mere 11 per cent, are women. This is a trend seen across the world. Although women farmers are responsible for 60-80 per cent of the food production in developing countries,they are barred from inheriting or owning those fields. It is widely accepted that not owning land is one of the best predictors for poverty around the world. Significantly,of the 1.4 billion people living on less than one dollar a day, 70 per cent are women and girls.

Research and studies across the world have shown the benefits of women gaining secure rights to land and property: an increase in women’s participation in household decision-making,an increase in net household income, a reduction in domestic violence, an increased ability to prevent being infected by HIV and increased expenditures on food and education for children. Closer home,in Kerala, 49 per cent of women with no property reported physical violence compared to the 7 per cent of women who did own property. This clearly demonstrates the empowerment that property ownership can bestow.

In India, as in many parts of the world,the government has initiated several steps to promote property ownership by women. But little has changed on the ground. For instance,about three decades ago, the Sixth Plan had recommended that states give joint titles to husband and wife in transfer of assets like land and house sites through government programmes. But there is hardly any effort to actually implement this.

The government has also reduced the property registration fee for property owned by a woman,just
6 per cent,compared to the 8 per cent a man has to cough up. The idea was to encourage more registrations in the name of women.

The amendment to the HSA too was meant to ensure that women and men became equal heirs to ancestral property. Though these measures have encouraged some marginal difference in property ownership,the scenario remains largely unchanged as women are yet to assert their rights.

However, there is reason to be optimistic. In 1993,when 33 per cent of seats in panchayats were reserved for women through a constitutional amendment,people scoffed at the idea. Merely changing the law, they said,could never change conservative mindsets in rural areas. Initially, we saw outright skepticism. Then there was the widely reported phenomenon of panchpati where the actual woman panchayat members husband conducted business in her name. This still happens in many areas, but today in hundreds of villages, women sarpanch are taking charge. Even women contesting unreserved seats has become acceptable.

Almost 17 years after the law came into force,it is becoming a resounding success in parts of India where you couldn’t imagine a woman stepping out of her house let alone conducting the business of an entire village, says Sunder Lal of the Social Centre for Rural Initiative and Advancement (SCRIA) who works in Churu, Rajasthan.

Will men eventually also come around to the idea of sharing family wealth Perhaps they will, but it could require a few more policy and law enforcement nudges from the government to move women’s property rights from paper to practice.


The matrilineal EDGE

The marumakkatayam system practised among the Nairs of Kerala, the aliya santana observed by the Bunts in Karnataka, and the marumakkal vazhi followed by the Pillais of Tamil Nadu are some of the prominent matrilineal systems of inheriting property in India.

Although the Hindu Succession Act of 1956 applies to all Hindus,section 17 of the Act makes some exceptions for these practices.

Thus, when a woman who follows the matrilineal custom dies intestate, her property would first devolve upon the children and not the children as well as the husband. Further, heirs of the mother gain precedence over the heirs of the fathers who in turn are given precedence over the heirs of the husband,an order that is inverted in the case of other Hindus.

It must be noted though that all matrilineal systems in India do not follow a standard template. Certain communities have their own practices of inheritance, which are also matrilineal.

RARE RIGHTS: Among the Bunts of Karnataka,the women have a dominant say in property mattersIn the Khasi community of Assam, only the youngest daughter or ka khadduhis eligible to inherit the ancestral property. If she dies without daughter surviving her, her next older sister inherits the ancestral property, and after her, the youngest daughter of that sister. Failing all daughters and their female issues, the property goes back to the mothers sister,mothers sisters daughter and so on. Among the Garos of Assam, property passes from mother to daughter. Although the sons belong to the mothers ma chong (family), they cannot inherit any portion of the maternal property. Indeed, males cannot in theory hold any property other than that acquired through their own exertions. Even this passes on to their children through their wives (the childrens mothers) after marriage.

Variations of such practices can be found in other countries as well. For instance,the Minangkabau ethnic group of West Sumatra,which follows Islam is a matrilineal community. Among the Nakhis an ethnic group in the Yunan and Sichuan provinces of China as the heads of the family, the women passed on the inheritance to their children,or to their nephews through their brothers.

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