Root out the prejudices in the Hindu Succession Act
Imagine a married couple without any children. The husband and wife work their whole lives, build their property and stash away savings in a joint bank account – hoping it will help in taking care of their ageing parents. Yet, when they die suddenly, without a will, all of their movable and immovable property is transferred to the husband’s parents. The wife, though economically independent and empowered, fails to provide for her parents because the 1956 Hindu Succession Act (HSA) which applies to 80% of India’s population including Buddhists, Sikhs, and Jains, dictates different schemes of property devolution for men and women if they do not have a surviving spouse or children: All of the husband’s property goes to his natal family, but the women’s property devolves to her in-laws.
Sections 15 and 16 of HSA are a point of contention in two landmark cases, one before the Supreme Court (SC) and another before the Punjab and Haryana High Court. In the first case earlier this year, the SC asked the government for its views. Shockingly, the government backed these provisions, failing to take into account the increased role of women in the economy, vastly changed family structures since 1956, and the blatant gender discrimination that this law legitimises. On the one hand, laws such as the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 hold “all children” equally responsible for the welfare of ageing parents but, on the other, provisions in the HSA take away this right from daughters.
The changing demography adds more urgency to the need for reform. India’s Total Fertility Rate (the number of children an average woman will bear in her life) is 1.6 in urban areas and 2.1 in rural areas, indicating that fewer couples have children, and those who do have fewer children. In addition, the proportion of couples with only two daughters who accepted sterilisation more than doubled from 16% 1992-1993 to 33.6% in 2015-2016 (National Family Health Survey-4/NFHS-4), indicating higher acceptability of daughters as only children than earlier. Further, 42% of women own a house, and 32% of women own land jointly or independently. All these numbers indicate that women now hold more assets, they are the sole providers for their aged parents more often, and they do not leave behind children after their death as often. So, the number of people affected by HSA will only increase over time. HSA perpetuates the belief that women belong solely to their “married household” - a commonly cited reason for the preference for a male child.
A paper published by National Institute of Public Finance and Policy in 2020 examined these provisions in HSA and suggested an amendment along the lines of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012, and the Indian Succession Act, 1925, which put men and women on par when it comes to devolution of property.
The government must amend the law to correct this injustice in HSA. States should also consider amending these provisions since succession is a concurrent subject. In the absence of sincere efforts to root out patriarchal biases from our laws, campaigns such as Beti bachao, Beti padhao (Save and educate the girl child) will fail to change prejudices. We owe India’s daughters and their parents the same right to care for each other and be cared for by each other as we have for sons in our society, in life or death.