The inheritance of loss

Belu Maheshwari

In a quest for equitable gender relations, a determining criteria is very economic in nature — fair wealth distribution. Among the many ways of wealth distribution, one is inheritance, of both moveable and immovable property. For centuries, the only inheritance for Hindu women was stridhan, the gifts she received at the time of marriage. For a Muslim woman, it was half of what her brother inherited but was rarely followed. Even in the 21st century, despite some progressive laws favouring gender equity on the ground, the reality is far from truth.

A dormant stakeholder  

A woman as a wife is supposed to be ardhangini — part of the man— but the better half has no right over her husband’s property. Men in their will give their life partners, ‘life interest’ to the residential house. These two words in a man’s will define the whole life of a woman. For all her marital commitments, love and sacrifice, she, in return, only finds secondary mention in the testament he makes for his inheritance. The woman, who bears the children, is relegated to the background and the progeny gets all the rights to the properties. A perusal of many wills shows that the wife, after her spouse’s demise, is given only living rights in her marital home or, to put it more bluntly, squatting rights till her death.

It is not a myth that a small percentage of women own property, in spite of the changes in the laws giving women equal rights. The Hindu Succession (Amendment) Act 2005 removes discrimination against gender that was in the provisions of the previous Act passed in 1956. Women are coparcener, and have the same liabilities and rights as the sons in the ancestral property of the ‘Hindu Undivided Family’. In case of partition of a joint family property, the wife and daughter have a right to equal share. But all these rights are for a joint family property, where anyway it is difficult to get any partition done. Whoever has the possession becomes the virtual owner, because, in India, civil cases never get decided.

In case a man makes a will of his self-acquired assets, he would very generously divide the property between sons, giving his wife and daughters nothing. The wife may get the living rights only. A husband might add for good measure that the wife should live with same dignity, and leave some moveable assets to make the life of his wife and daughters easier. 

At the cost of dignity  

This clause of living rights comes with many connotations. Actually, it is widely used to protect the interest of the female member to ensure she is not rendered homeless. She gets a roof over her head, but it takes away her dignity. On paper, she becomes homeless. There are many types of life interests, mostly it means no absolute control over the house. The woman has no other right, except residing. She cannot deal with it independently. Moreover, it does not prevent the owner from shifting her to a corner in the house. In a country where more than 68 million households have elderly living with younger members, this leads to churning in family dynamics.

This narrative is not about notional ownership to feel powerful, it is about total paradigm shift in the status of the woman, who has been the pivot of a house. According to a study conducted on living arrangements of elderly women, 81 per cent live with their children in urban areas of Punjab, 55 per cent in Himachal, 50 per cent in Haryana, while the all-India figure is 72 per cent. The need to provide dignified existence to elderly women is a pressing problem. Studies show that even among the educated, well-off people, the elderly are neglected, or at best tolerated. 

Unlike the developed countries, where the wife has equal ownership of the house, we do not have any law like that. Even in the case of ancestral property, where women have been given equal rights, we have scores of women executing relinquishment deeds in courts. In Haryana, a scrutiny of all deeds shows that the release deeds, transfer deeds and wills (the three most common means to deprive women of ancestral property) make up for roughly one-fourth of the 23 different documents. Thirty to 40 per cent of civil litigations in district courts pertain to where women are fighting for their rights. With patriarchy so deeply embedded that sons take precedence over the life partner, some changes need to be made to allow elderly women to live with more dignity.

A rough deal for daughters 

We find the same anomalies in case of daughters as well. The girls are not given a share by their fathers or brothers. Usually, daughters themselves relinquish their rights to their brothers to maintain the relationship. As recently as February 2018, the Supreme Court has reiterated that every daughter is entitled to her share in her father’s property. Prakash vs Phulwati (2016) held the 2005 amendment retrospective, but this latest judgment has made it a general rule that a daughter, living or dead on the date of amendment, will be entitled to a share in her father’s property.

If we mull over statistics, we find that only 13 per cent women own land in some form. This is including Kerala, where matriarchal norms give rights to women. Overall, the many wrongs of women property rights paint a dismal picture.

Succession, only for men? 

Khaps in Haryana have been against the 2005 amendment to Hindu Succession Act. They claim that this has increased litigation by 500 per cent and led to friction in the brother-sister bond. A lease deed is executed by the women of the family in the name of the male members. This doesn’t attract any stamp duty, and gives away the daughter’s rights to their paternal inheritance called Hak Tyag.

The official machinery inclined towards patriarchal mindset also favours men. Daksh, a non-profit organisation, after collection of data from 300 courts found 66 per cent of litigation was related to land disputes and out of these 53.8 per cent were family disputes.

Awareness among girls about their rights is increasing. Ratna Vir, who wrote Daughter by Court Order, fought against her family to claim her right to ancestral property. Another popular case is that of the Scindia family of Gwalior. The sisters have filed cases for a share in the ancestral properties against their nephew Jyotiraditya Scindia  and allege that he tried to sell family properties without partition. 

There are cases where girls have been threatened or killed. One such case quoted in the Washington Post in September 2016, is of Leena Sharma, who owned 37 acres in Sohagpur, MP. She was working in the American Embassy School before she decided to start farming on her land. Her dream was never fulfilled as she was murdered. In 1986, Mary Roy, mother of Arundhati Roy, won the case that ensured equal inheritance rights for Syrian Christian women. The SC ordered that women of the community would have equal rights on father's property.