Right to inherit land a myth for Indian women

There is a drastic difference between genders in the right to inherit land. Over a decade after the Hindu Succession Act was amended, only one in ten women inherit agricultural land

The World Economic Forum’s Global Gender Gap Report 2018 ranks India 108th out of 142 countries, with no improvement over 2017. India ranks lower on all pillars of the gender gap — economic participation and opportunity, educational attainment, health and survival ranking, and political empowerment. We see significant economic disparity between genders in India. 

There is a drastic difference between genders in the right to inherit land. More than a decade has passed since Hindu laws that govern succession were amended. Termed as a moment of triumph in 2005, daughters were recognised as co-partners in a joint Hindu family and were made joint holders of family property. Until 2005 only Hindu males could rightfully hold a share in family property. Now daughters are entitled to a share in ancestral family property after their father’s death under section 6 of the Hindu Succession Act, 1956 (Act). However, in a 2013 study Landesa found that even eight years after the 2005 amendment only one in ten women inherited agricultural land.

State-specific laws governing devolution of rights in agricultural land present a grim picture. Personal laws like the Hindu Succession Act, 1956 apply to devolution of rights in agricultural land only in a few states such as Madhya Pradesh, Chhattisgarh and Rajasthan. In Punjab, Haryana, Himachal Pradesh and Jammu and Kashmir, daughters and sisters do not inherit agricultural land. These states give limited rights to widows and widowed mothers where, in case of remarriage, their right of inheritance is lost. Local laws in these four states prefer male relations (through the male line) in the order of succession to agricultural land. Only male descendants primarily inherit family agricultural land.

Widows of male lineal descendants are preferred in Jammu and Kashmir but are given low preference in the order of succession. Low preference leads to very low chances of inheritance for women in the family. Delhi gives inheritance rights to widows over agricultural land, but not daughters. In Uttar Pradesh and Uttarakhand, daughters and sisters do inherit agricultural land, though married daughters have a lower preference. At least UP gives an unmarried daughter a primary right of inheritance to a male Hindu’s property, but in Uttarakhand an unmarried daughter is quite low in the order of succession. Besides, many states are silent on whether personal religious laws apply to agricultural property. This silence can be interpreted to mean either recognition or thwarting of women’s inheritance rights. 

The Indian Constitution demarcates the legislative domain of the Centre and states. “Wills, intestacy and succession” and “transfer of property other than agricultural land” (entries 5 and 6) are part of the Concurrent List and can be legislated upon by Parliament and state legislatures. “Rights in or over land” and “transfer and alienation of agricultural land” (entry 18) are state subjects and cannot be legislated upon by Parliament. Under the Indian Constitution these subjects are the exclusive domain of states. Following this most states in independent India enacted local laws that govern devolution of tenancy and succession rights in agricultural land.

Here the 2005 amendment creates a strange scenario. Under the Hindu Succession Act, 1956, Parliament recognised a daughter’s share in family property along with another controversial and less noted change. Prior to 2005 the Act did not apply to any law related to fragmentation of agricultural land, fixation of land ceilings and devolution of tenancy rights in agricultural land. The 2005 Amendment repealed this provision in section 4(2) of the Act with the aim of encouraging women’s rights to agricultural land. Since matters relating to agricultural land were considered a state subject under entry 18, repealing section 4(2) of the Act creates confusion among states. Does this removal extend the Act to all aspects of agricultural land? Or does it throw the ball back to the states?

Recently, in Archna vs Deputy Director of Consolidation and Others, the Allahabad High Court upheld that the Hindu Succession Act, 1956 does not apply to agricultural land in UP. Agricultural land was considered an exclusive domain of the state legislature, where Parliament has no power to legislate. The court asserted that repealing section 4(2) cannot lead to an automatic application of the Act to agricultural land. Existing state laws and Parliament's lack of clarity on repealing section 4(2) of the Act create an avoidable gap.

This gap creates a lack of uniformity in inheritance rights even within a religious sect (Hindus). Varying interpretations by state high courts limit the reach of this welfare amendment. Such loopholes fuel orthodox mindsets of a male-dominated agricultural sphere. Right of inheritance and subsequent ownership of agricultural land further women’s empowerment and financial independence. Inheritance rights to agricultural land are instrumental in elevating women in rural areas. There is a dire need to push for state amendments to local laws. Women are equal representatives of the family legacy. No primitive law or customary interpretation can take this away. 

The writer is a Stanford Fellow, Landesa. These views are personal