How to protect Women and how succession laws vary in various religions in India
Whether you are a wife, daughter or mother, what you are entitled to and how you can claim it in India?
It has never been a good time to be a woman in India. Shackled at home, deprived of rights in society, and subjected to gender bias at the workplace, women have borne the brunt of being the weaker sex all through history. Though the skew in rights and treatment hasn’t quite corrected itself, women are possibly in a better place today than ever before. This is because rising awareness, availability of global forums and social media to voice their anguish and angst, changes in laws to empower them, and proactive governments to implement gender neutral laws in India have all converged to give women a hearing and heft.
For years, women in India have been discriminated against and denied the right to ancestral property due to various reasons such as there is no uniformity in inheritance laws, with various religious communities governed by their own personal laws and different state tribals by their customary laws. Most of these laws discouraged passing on property, agricultural or otherwise, to women for fear of fragmentation of land holding or losing it once the woman got married. The basic framework for inheritance differs on the basis of religion in India and not on the basis of the nature of asset. While Hindu families and other identified religions have their own inheritance laws Hindu Succession Act, 1956, inheritance rights of the remaining groups are governed by the Indian Succession Act, 1925.
There is low awareness and literacy among women about their own rights and, understandably, they have shown little inclination to contest in courts. Strong patriarchal traditions have translated into fear of violence and threat of violation by their male relatives, preventing women from fighting for their inheritance rights. In fact, in several northern and western states, women give up their claim over ancestral property due to the custom of ‘haq tyag or release of interest’ or voluntary renunciation of rights. This is justified on the grounds that as the father pays dowry and finances the daughter’s wedding, only sons should get the family property.
There were issues with regards to awarding inheritance rights to women between 1970 and 1990 which led to increased female foeticide and higher female infant mortality rates in Northern & Western Indian States. This is because some people consider girls to be a liability since the inherited property falls into the hands of her in-laws. There is also a big incentive to reward a son with inheritance, since he works on the land and creates wealth, while looking after the parents in their old age. This finding has been documented in Research Reports. Despite such discouraging developments, gender neutral inheritance laws are the need of the hour. What will help power these is the increase in awareness among women and quick implementation of the laws.
To help with that, we list the inheritance and succession rights of women, be it a wife, daughter, mother or sister for the main religious groups in India.
Which Act/Laws applies to whom?
Hindu Succession Act, 1956
Apply to Hindus, Sikhs, Jains and Buddhists for the non-testamentary or intestate succession and inheritance. Indian Succession Act, 1925
This act applies to Parsis for intestate succession, specifically under Sections 50 to 56, and to Christians and Jews, specifically under Sections 31 to 49.
Muslim Personal Law (Shariat) Application Act, 1937
Where a Muslim has died with a will, the issue is governed by the Indian Succession Act, 1925, where a will relates to immovable property within the states of West Bengal, and that of Madras and Mumbai jurisdiction.
Muslims are governed in their personal matters, including property rights, under the Muslim Personal Law (Shariat) Application Act, 1937, which was introduced to replace customary law. This law is yet to be codified. A high point of the Muslim law is that it has given some independent rights to woman. The Islamic concept’s landmark is that when most part of the world treated woman herself as belonging to the man, Islam gave two independent rights to woman—the right to have marriage legally dissolved by mubarat, talaq, khula, and right to inherit property.
Although Muslim personal law grants woman right to inheritance, a daughter’s right of inheritance is equal to one-half of the son’s share to their father’s estate. But a daughter has full control over her share of property and has the legal right to control, manage and dispose of her share as per her wish in life or after death. Unmarried daughters have the right of residence in her parent’s home and ask for support. If the married daughter gets divorced, the maintenance falls on her parents after the three-month iddat period, but if she has kids who can support her, then it is their duty to do so.
In case of divorce, apart from maintenance and mahr, a woman has the right to inheritance to the extent of one-fourth when there are no kids, and if there are kids, then to the extent of one-eighth. If the mother is widowed or she gets divorced, she has the right to receive maintenance from her children and inherit one-sixth share of her deceased child’s property.
Special Marriage Act, 1954
Marriages solemnized under Special Marriage Act are not governed by personal laws. Inter-religion marriages are performed under this Act. It also applies to Indian national living abroad.
Succession to the property of person married under this Act or customary marriage registered under this Act and that of their children, are governed by Indian Succession Act. However, if the parties to the marriage are Hindu, Buddhist, Sikh or Jain religion, the succession to their property will be governed by Hindu succession Act.
The Supreme Court of India, in 2006, made it required to enroll all relational unions. In India, a marriage can either be enlisted under the Hindu Marriage Act, 1955 or under the Special Marriage Act, 1954. The Hindu Marriage Act is pertinent to Hindus, though the Special Marriage Act is appropriate to all residents of India regardless of their religion applicable at Court marriage.
The basic requirement for a valid marriage under this Act is the consent of both the parties to the marriage. If both the parties are ready to marry each other, that suffices it; here caste, religion, race, etc. cannot and do not act as a hindrance to their union. For marriage under this Act, the parties need to file a notice expressing their intention to marry each other, with the Marriage Registrar of the district in which at least one of the parties to the marriage has resided.
Christian & Parsi (Zoroastrian) women
Laws of succession for Christians and Parsis are laid down in the Indian Succession Act, 1925—sections 31 to 49 deal with Christian succession and sections 50 to 56 deal with Parsi succession. Under the Act, Christian children inherit equally, irrespective of gender. A daughter inherits equally with any brothers in her father’s or mother’s estate if the father or mother dies intestate. If the deceased has left behind both a widow and lineal descendants, she will get one-third share in his estate while the remaining two-thirds will go to the latter. If no lineal descendants have been left but other kindred are alive, one-half of the estate passes to the widow and the rest to the kindred. If no kindred are left either, the whole of the estate shall belong to the widow.
The Indian Christian widow’s right is not an exclusive right and gets curtailed as other heirs step in. Only if the intestate has left none who are of kindred to him, the whole of his property would belong to his widow. Another peculiar feature that the widow of a predeceased son gets no share, but the children whether born or in the womb at the time of the death would be entitled to equal shares. Prima facie, the property rights of Parsis are gender-just. A widow and all her children, both sons and daughters, irrespective of their marital status, get equal shares in the property of the intestate, while each parent, both father and mother, get half of the share of each child. However, there are some anomalies. For example, a widow of a predeceased son who dies issueless gets no share at all.
What are Testamentary and non-testamentary succession and Inheritance?
Testamentary or Testate Inheritance (Based on Will): Inheritance is as per the will of the deceased
Non-Testamentary or Intestate succession (Without Will): The deceased person dies without making the will.
However, in case if the will is related to immovable property is within the jurisdiction of Madras, Bombay High Courts and Calcutta High Courts (located within West Bengal), they are bound by the Indian Succession Act 1925 for the purpose of testamentary succession.
What are your inheritance rights?
The share of inheritance of a woman is half that of a man. Since upon marriage, a woman receives mehr and maintenance from husband, as well as inheritance, while a man only has the inherited property, it is generally considered that the woman should have a lesser share in the inherited property.
In case of Muslims, inheritance laws are governed by personal law. There are four sources of Islamic law governing this area— the Quran, the Sunna, the Ijma and the Qiya. When a man dies, both males and females become legal heirs, but the share of a female heir is typically half of that of male heirs. While two-thirds share of the property devolves equally among legal heirs, one-third can be bequeathed as per his own wish.
Muslim law recognizes two types of heirs, Sharers, and residuary. Sharers are the ones who are entitled to certain share in the deceased’s property and residuary would take up the share in the property that is left over after the shares have taken their part. Wives A wife without any children is entitled to receive one-fourth the share of property of her deceased husband, but those with children are entitled to one-eighth the share of the husband’s property. If there is more than one wife, the share may diminish. In case of divorce, her parental family has to provide maintenance after the iddat period (about three months). Daughters A son always takes double the share of a daughter in the property of a deceased father. However, the daughter is the absolute owner of the inherited property. In the absence of a son, the daughter gets half the share of the inheritance. If there is more than one daughter, they collectively receive two-thirds of the inheritance. Mothers A mother is entitled to receive one-third share of her deceased son’s property if the latter dies without any children, but will get a one-sixth share of a deceased son having children.
Christians are governed by the Indian Succession Act, 1925, specifically by Sections 31-49 of this Act. Under this, the heirs inherit equally, irrespective of the gender. Wives If the husband leaves behind both a widow and lineal descendants, she will get one third the share of his property, while the remaining two-thirds will go to the descendants. If there are no lineal descendants, but other relatives are alive, one-half of the property will go to the widow and the rest to the kindred. If there are no relatives, the entire property will go to the wife. A Christian man can legally marry a second time only after the death of the first wife or after legally divorcing her. If he has a second wife even as his first wife is alive or not divorced, the second wife or children will have no right over his property. However, the children of a legally divorced wife have an equal share over their father’s property as that of the second wife and her children. Daughters: A daughter has an equal right as her brother to the father’s property. She also has full right over her personal property upon attaining majority. Mothers If a person dies without a will and has left no lineal descendants, then after deducting his widow’s share, the mother will be entitled to receive an equal share as other surviving entitled sharers. These sharers could be the brother, sister, or the widow of such sibling, or the children of any predeceased siblings.
What to do if your rights are denied? If a woman does not get her due share in the ancestral property, she can send a legal notice to the party denying her the right. If she is still restrained from seeking her claim, she can file a suit for partition in a civil court claiming her share. She can also seek partition of the properties occupied by other legal heirs. “If physical partition of properties is not possible, the court can auction the properties to give her share to the woman. In order to ensure that the property is not sold during the pendency of the suit, she can also seek an injunction from the court. If the property has been sold without her consent, she can add the buyer as a party in the suit if she has not instituted a suit yet, or can request the court to add the buyer as a party if the suit has been filed.
Hindu-Muslim marriage: Can Hindu woman marrying a Muslim (and having converted to Islam) still claim right to her parent's self-acquired property?
There is no legal concept of disowning a child, but parents can deprive a child of his share in their self-acquired property through a will. Marrying a person of another religion or converting does not deprive woman of their rights.
There is no legal concept of disowning a child, but parents can deprive a child of his share in their self-acquired property through a will. Marrying a person of another religion or converting does not deprive you of your rights. You can claim a share in their property. As it was the father's self-acquired property, the daughter, being a Class I legal heir, will get an equal share along with the son. Marriage will not make any difference to the daughter's share. You can claim your share by filing a suit for partition.
Who has the right over a woman’s property after she dies? MUSLIM WOMAN
Under Muslim Law, there is no distinction between self-acquired or ancestral property. Legal heirs are divided into two categories: sharers and residuary. Sharers get their share first and residuary get what is left. If a Muslim woman inherits property from any relation (husband, son, father, mother), she becomes the absolute owner of her share and can dispose it. If a Muslim woman wants to make a will, she cannot give away more than one-third share of her property and if her husband is the only heir, she can give two-thirds of the property by will.
OTHER RELIGIONS The distribution of women’s inheritance, other than those who are Hindus, Buddhists, Sikhs, Jains and Muslims, is governed by the Indian Succession Act, 1925. The blood relatives of a woman inherit even in the presence of husband and husband’s relatives.
How women can safeguard their inheritance
1. Get multiple copies of death certificate and have them attested, if needed. This is because it is required at all the financial institutions for transferring the assets or investments, making a claim, or selling the deceased’s assets.
2. In case of mutual agreement among family members, a will is the best way to pass on assets. While nominations help in transferring movable assets like bank deposits or insurance policies, a will takes legal precedence over a nomination. If there is a discord, a will is the best option, especially in case of self-acquired property. Get a probate, if required, as it’s needed in some states.
3. If there is no will or nominee, in case of movable property, get a succession certificate. This is a must if there is neither a will nor a nominee, or both the parents pass away without a will. In case of immovable property, the property is divided as per the succession laws among all the legal heirs.
4. In case of real estate, have the property transferred in your name at the sub-registrar’s office. Here, you will need the will (with probate) or a succession certificate. Without a will, you may also need an affidavit with a no-objection certificate from other legal heirs. The next step is mutation of property, which means transferring the title in land revenue records.
5. Inform the banks so that no one can withdraw the money from accounts and also file a petition for succession certificate (as mentioned earlier) to claim your share in the account balance. In case of any apprehension, also file an injunction suit to prevent other legal heirs from denying you your share in the accounts, or other properties of your father or husband.