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Equality among unequals: A critical look at Hindu succession

By Rakesh Shukla

The recent amendment to the Hindu Succession Act has made the daughter a member of the coparcenary. It also gives daughters an equal share in agricultural property. These are significant advancements towards gender equality

The Hindu Succession (Amendment) Bill 2004, passed unanimously by the Lok Sabha, comes after a long gap: the Hindu Succession Act was passed in 1956. The present debate about removing discrimination against women to a large extent remains confined to the experts. The law, obtuse at the best of times, takes on an even more tedious character when it comes to inheritance laws.

For almost half a century since the passing of the Hindu Succession Act, 1956, there has been the widespread belief that under Hindu personal law daughters are equal to sons. This belief was based on Section 10 of the Act dealing with the distribution of property of a Hindu who has died without making a will, referred to as 'intestate' in law. The provision unequivocally declares that property is to be distributed equally among Class I heirs, as specified in the schedule. The schedule clearly lays down daughters, mothers and widows as Class I heirs entitled to a share equal to that of sons. This, though seemingly a huge step in favour of gender justice, was in fact more a sleight of hand.

The mischief lay in customary Hindu law and the concept of 'mitakshara coparcenary' property. A Hindu joint family consists of a common ancestor and all his lineal male descendants, together with wives or widows and unmarried daughters. The existence of a common ancestor, necessary to bring a joint Hindu family into existence, continues even after the death of the ancestor. Upper links are removed and lower ones are added; the joint family can continue indefinitely. Except in the case of adoption, no outsiders are permitted and membership to the joint family is by birth or marriage to a male member. A Hindu joint family is a unit and is represented by the 'karta' or head.

A coparcenary is a narrower body of people within a joint family, and is crucial to the inheritance of property under Hindu law. The 'sapinda' relationship and capacity to confer spiritual benefit on paternal and maternal ancestors play a significant role in inheritance under customary Hindu law. The sapinda relationship arises between two people through the "community of particles of the same body," namely that of the common ancestor. The foundation of the doctrine of spiritual benefit is the offering of 'pind-dan' to departed ancestors in the shradha fortnight every year. Pinda means 'ball' and is usually made from rice. The performer offers one full pinda each to his three paternal ancestors. Other offerings too are made to the ancestors, but they do not concern the formation of the coparcenary.

A coparcenary comprises the father and his three male lineal descendants. A coparcener has an interest by birth in the property of the joint family. This interest is not a quantified one; it changes with births and deaths within the family. Every coparcener has the right to be in joint possession and enjoyment of joint family property. A coparcener also has the right to partition, to get his interest individualised and separated. However, the person's separate interest becomes communal property again on the birth of a son who acquires an equal interest in the property. On a coparcener's death, his interest passes by survivorship to the other coparceners. Women, whether daughters, mothers or widows, cannot be part of the coparcenary.

The Hindu Succession Act retained the coparcenary. In fact, Section 6 specifically declares that, on death, the interest of a male Hindu in mitakshara coparcenary property shall devolve by survivorship to other members of the coparcenary and not by succession under the Act. However, it laid down that the separate share of the deceased, computed through the device of a 'deemed partition' just before his death, would devolve according to the Succession Act.

The Act did not clearly spell out the implications of exclusion from membership to the coparcenary in respect of inheritance of property. Thus, if a widowed Hindu male died leaving a son and a daughter, then, according to the explanation in Section 6 of the Act, there will be deemed to be a partition just before the death of the person. In this deemed or 'notional' partition, the father and son share equally and each gets half the property. The father's half will be shared equally by his son and daughter as Class I heirs. In effect, therefore, the daughter gets one-fourth of the property, while the son gets his own half from the deemed partition as a coparcener and an additional half from the share of his father. Together that would be three-fourths of the property. It is this inequity between son and daughter that has now been removed by the amendment.

In a major blow to patriarchy, centuries-old customary Hindu law in the shape of the exclusive male mitakshara coparcenary has been breached throughout the country.

The preferential right by birth of sons in joint family property, with the offering of 'shradha' for the spiritual benefit and solace of ancestors, has for centuries been considered sacred and inviolate. It has also played a major role in the blatant preference for sons in Indian society. This amendment, in one fell swoop, has made the daughter a member of the coparcenary and is a significant advancement towards gender equality.

Thanks to the amendment, daughters will now get a share equal to that of sons at the time of the notional partition, just before the death of the father, and an equal share of the father's separate share. However, the position of the mother vis-à-vis the coparcenary stays the same. She, not being a member of the coparcenary, will not get a share at the time of the notional partition. The mother will be entitled to an equal share with other Class I heirs only from the separate share of the father computed at the time of the notional partition. In effect, the actual share of the mother will go down, as the separate share of the father will be less as the property will now be equally divided between father, sons and daughters in the notional partition.

The original bill, introduced in 2004, exempted agricultural land from the purview of the amendment. A considerable section of society is totally against equal shares to daughters with respect to agricultural land. The inclusion of agricultural land in the amendment, giving equal shares to daughters and overriding state-level discriminatory tenurial laws, is a great credit to parliament. Effective lobbying by women's groups must also be given due credit.

The equal sharing of the father's property applies in cases where he dies intestate -- that is, without making a will. Given the bias and preference for sons and notions of lineage, discrimination against daughters in inheritance through wills is bound to remain. In most cases, the terms of the will would favour the son. Perhaps the share of property that can be willed by a person could be restricted, as a step towards greater gender equality. For example, Islamic jurisprudence lays down that a person can only will one-third of his property. Provisions to check the prevalent practice of 'persuading' daughters to give up their share in joint family property is another area that requires attention. This is an opportune time to keep up the momentum for further reforms to reduce gender inequities and move towards a more equal society.

(Rakesh Shukla is a Supreme Court lawyer)

InfoChange News & Features, September 2005