Yamini, Coordinator, Centre for Budget and Governance Accountability, New Delhi/ APWLD member

In September 2005, the Hindu Succession Act (HSA) of 1956 was amended with the Hindu Succession (Amendment) Act (HSAA) of 2005, a significant step towards advancing women’s rights, although Muslim and tribal women are outside the purview of this law. The tireless efforts of women’s rights activist and NGOs working on this had a very significant role to play in the amendment of the discriminatory act.

In its essence, the HSAA has abolished the difference between sons and daughters in the right to ancestral property. Under the HSA, the Hindu son was born with a right to ancestral property and all related benefits (for instance, right to sell his portion of the ancestral property), whereas a Hindu daughter had no such right. With the coming in of this amendment, the Hindu daughter would be borne with the same right to ancestral property which would include right to residence and right to partition.

The act, thus, did not allow married daughters even residence rights in the parental home. Only unmarried daughters and daughters separated or widowed were allowed residence rights. Also, unlike sons, it did not give daughters right to seek partition. Also, Section 24 of HSA which barred remarried widows from inheritance has been deleted.

Implications

The extent of the impact of favourable changes in law on lives of common women is much debated. Such changes could be just limited to paper unless parallel efforts are made to ensure that such right can actually be availed by the women. If indeed the amendments brought about by the Hindu Succession (Amendment) Act of 2005, reach the women, it could have far reaching ramifications.

Land and land ownership is a very contentious issue. In our current scenario where land redistribution ceases to be even on the agenda of most political parties, inheritance remains a major source of access to land. For women, this becomes even more pronounced since women have a higher incidence of poverty than men and their poverty is more severe than that of menii. This makes it even more difficult for them to buy land and property since the rules and procedures commonly employed for loans, mortgages, and other forms of credit in both the formal and informal sectors put women at a disadvantage, including the literacy level such procedures require, heavy down-payments, mortgages which require that women should have some property in their name. Thus, such legislation, by giving women right to property and inheritance, has the capacity not just to reduce women’s poverty, it could also have multiplier effect on several aspects of a woman’s life—reducing chances of maternal mortality and morbidity (linked to poverty and malnourishment), increasing chances of her children going to school, enhanced nutritional standards for the entire family, etc. It has been argued by some researchers that any extra income that goes to a woman will be utilised better for the family’s welfare (whether it is the family’s nutritional status or educational status of children, etc.) than the extra income going to the man of the household.

Concerns are also being raised that gender-equal inheritance laws can benefit only rich women. However, India is a land of small farms and that too is characterised by cultivation of ancestral land thereby making inheritance very critical. Marginal land holdings (land holdings less than one hectare) comprise 59%iii of all land holdings. The average land holding size in India varies from 1.47 to 1.57 hectares. Such legislation will, therefore, not just benefit rich women but will also benefit women from families with very small land holdings.In the Indian social context today, women will continue to live in their marital homes but the income that she will get from her share in her natal property, will reduce the incidence of women’s poverty and will give her at least some disposable income in her hands, if not, a greater access to capital.

There are concerns being raised that the HSAA will increase fragmentation of land, however, fragmentation can occur even if sons inherit. In this regard, women’s migration because she is married “out” is always overrated as men migrate out too in the search for jobs.

Giving daughters right to ancestral property will also have an impact on changing the inherently unequal power equations between the majority of the husbands and wives even today. The improved bargaining position of wives could have an impact on the incidence of domestic violence and scores of other such household dynamics. In a very ground breaking research done by Bina Agarwal & Pradeep Panda in 2003 in Kerala, (‘Home and the world: Revisiting violence’) which has been used by women’s groups in several countries to strengthen their advocacy in calling for better legislation in terms of violence against women and women’s right to property, they have shown that the incidence of violence is decreases if women own immovable property: “Ownership of property by women is associated with a dramatically lower incidence of both physical and psychological violence and both long-term and current. For example, as many as 49 per cent of the women who owned neither land nor house had suffered long-term physical violence, compared with 18 per cent and 10 per cent respectively of those who owned either land or a house, and 7 per cent of those who owned both. The effect of property ownership on psychological violence is even more dramatic: while 84 per cent of the property less women had suffered such abuse, the figure was 16 per cent for women owning both land and a house. In other words, women’s ownership of immovable property clearly serves as a protection against all forms of spousal violence. Equally, it provides an escape: of the 179 women experiencing long-term physical violence, 43 left home. The percentage leaving home was much greater among the propertied (71 per cent), than among the property less (19 per cent). Moreover, of those who left home, although 24 returned, 88 per cent of the returning women were property less. Few of the propertied women returned. In other words, not only are propertied women less likely to face marital violence, they are also more able to escape further violence.”

The impact of this legislation on dowry will be interesting to watch. It is likely that this legislation will reduce the incidence of dowry in at least the land owning families because even according to the apologists of dowry, the woman’s share in her parental property is given away to her as dowry, or rather; dowry is given in lieu of her share in the property of her parental house. Now as she will have her share in any case, the incidence of dowry might go down.

Even if this amendment would not have all the expected impacts, it is still welcome as it removes discrimination in legislation and guarantees women their rights, even if it is just de jure. The amended legislation intends to set right the inherent undervaluation of the girl child. It puts across the message very clearly that a daughter is as much a part of parental home as the son is and has the same right to property and inheritance as the son. It challenges the notion that a daughter after marriage ultimately belongs to the husband’s family and that a woman’s legal locus standi is either from her husband or from her sons. To the extent that the written word of law has an impact, this step is most welcome and actually long overdue.

Remaining Challenges

One of the biggest challenges that still need to be addressed is that the HSA 1956 and the HSAA 2005, applies only to Hindu women and thus leaves Muslim and tribal women outside its ambit. Muslims in India are governed by the Muslim Personal (Shariat) Application Act which was a substantive move forward when it was passed in 1937 as it guarantees that daughters and widows cannot be excluded by any other heir and are protected by the overall testamentary restrictions, even though their shares are always lower than men’s. Unfortunately though, Section (2) of this act excludes agricultural land from its ambit. Women’s rights activists are therefore calling for this anomaly to be removed and that the phrase “save questions relating to agricultural land” be deleted from Section 2 of the 1937 Shariat Act.

The most critical challenge, however, will be to ensure that this legislation does not just remain confined to law books. A lot of effort needs to be put in, not just in raising awareness about the law but also in creating an enabling environment where women would be able to exercise this right. Land, house and the partition of these are highly emotive issues and women could face such hostile atmosphere, that they could even choose not to exercise the right, let alone being forced to sign on legal documents stating otherwise. Certain precautionary legal provisions could be introduced to prevent the advances made in the HSAA from being nullified. For instance, a lock-in-period for the transferaway of inherited property by daughters or clauses that make it mandatory that the money received from the sale thereof be kept in a separate bank account in the name of the daughter only are possible strategies that could be considered.

Unless efforts are made to ensure that women while trying to access these rights do not experience obstruction, in our patriarchal social order, such legal advancements will be of little use.

i Centre on Housing Rights and Eviction, COHRE Fact Sheet on Women and Housing.

ii Source: Briefing paper on the ‘feminisation of poverty’, prepared by BRIDGE for the Swedish International Development Cooperation Agency. iii Agricultural Statistics at a Glance, 1996, Directorate of Economics and Statistics, Ministry of Agriculture, GOI and Agricultural Research Data Book, 1996, ICAR, Krishi Bhavan, New Delhi.