Curiously, almost all discussions on a gender-equal civil code in India revolve around marriage, carefully sidestepping inheritance. Yet, it is inheritance (especially of land) that affects millions of Indian women who depend on agriculture for survival, or who seek protection from domestic violence. Inheritance of immovable property remains deeply gender unequal, especially in practice but also in law. Removing gendered anomalies within existing personal laws is quite feasible, and already in process. It is creating a uniform gender-equal inheritance law for all communities that presents a conundrum.
Fifteen years have gone by since the last major reform of inheritance law, namely the passing of the 2005 Hindu Succession (Amendment) Act (HSAA). The HSAA gave Hindu women equal coparcenary rights in joint family property and deleted the discriminatory clause on agricultural land. These were major steps forward. But for Muslim and tribal women, disabilities continue. Muslims are still governed by the Muslim Personal Law (Shariat) Application Act, 1937. Under this Act, the Shariat superseded “custom or usage to the contrary” for all property, except agricultural land. Earlier, Muslims (like most Hindus) were governed by a mosaic of local customs, some in sync with the Shariat, most at variance with it. By abrogating custom, the ’37 Act enhanced Muslim women’s rights, since most customs are highly gender exclusionary, while under the Shariat, key female heirs such as daughters and widows cannot be excluded by other heirs, although their shares are smaller than men’s.
By excluding agricultural land from its purview, however, the ’37 Act left a major gender inequality intact. Section(2) provides that: “Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift … the rule of decision …where the parties are Muslims shall be the Muslim Personal Law (Shariat).” Later, Tamil Nadu and Andhra Pradesh amended the Act in 1949, and Kerala in 1963 to in clude agricultural land, by deleting “save questions relating to agricultural land”. But elsewhere, land inheritance continues to depend on gender discriminatory customs and tenurial laws, which, in many states, virtually exclude Muslim women from rights in agricultural land, contrary to their rights under the Shariat. Similarly, most tribal women are governed by discriminatory customs and need gender-equal codification of their inheritance rights. One way forward could be for tribal reformers to adapt the Indian Succession Act, as done by Christians and Parsis. Such reforms, however, elide the question of a uniform gender-equal inherit ance law, applicable to all. Is convergence, requiring changes in all the personal laws, feasible? For illustration, consider five notable points of divergence: first, Hindu law retains the concept of coparcenary joint family property. No other personal law has an equivalent. Second, Muslim personal law under the Shariat has very specific rules of succession. Women’s shares are less than men’s generically, and these shares can change in the presence or absence of particular categories of other heirs. No other inheritance law has such a complex architecture of rules. And this is spelt out in the Koran, leaving little room for interpretation in a gender-equal direction. Third, personal laws differ on the right to will. Hindus, Christians and Parsis face no restrictions, but Muslim law restricts wills to one-third of property, with Sunni and Shia differences on who can get such property and with whose consent. Fourth, Hindu law itself varies by state: for example, in 1976 Kerala abolished joint family property altogether while the HSAA retained it, and matrilineal Hindus have separate rules. Fifth, cultural ideas about who deserves to inherit differ: Hindus emphasise sapinda (“shared body particles” in Mitakshara, religious efficacy in Dayabhaga); other communities focus on various blood & marital ties, or proximity of residence, etc.
Given such divergence, the idea that we can cherrypick bits from different personal laws and graft them onto some new “uniform” law does not appear realistic. A possible alternative could be to create a separate secular law, based on constitutional principles of gender equality , which either supersedes existing inheritance laws, or which people can “opt for” when they reach adulthood.
The writer is professor of development economics, University of Manchester
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