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.
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. 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. 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. 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.
Till as late as the formulation of the Hindu Succession Act, 1956, the law was blatantly biased against women. It was only after the amendment in the Hindu Succession Act in 2005, whereby equal rights were awarded to daughters in their fathers’ ancestral property, that it became more balanced. 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. 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?
Ø Hindu Succession Act, 1956: Apply to Hindus, Sikhs, Jains and Buddhists for the non-testamentary or intestate succession and inheritance.
Ø 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.
Ø 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.
Special Marriage Act, 1954: If marriages solemnized under Special Marriage Act, then they 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. . 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.
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.
What are your inheritance rights?
Hindus
The Hindu Succession Act, 1956, governs the succession and inheritance laws for Hindus, along with Buddhists, Jains and Sikhs. This is applicable to both women and men. The Act makes no distinction between movable and immovable property. It only applies to intestate succession (where there is no will) and to anyone who converts to Hinduism. It has no application in case of testamentary succession (where there is a will). The property owned by a person can be classified only as ancestral or self-acquired:
Ancestral property is one that is inherited up to 4 generations of male lineage without any division, and the right to share in it is accrued by birth.
Self-acquired property is the one that has been purchased by the person from his own resources or through any property acquired from his share in an ancestral property. For a self-acquired property, the Hindu father continues to enjoy unfettered discretion to will it to anyone he wishes. This can allow him to discriminate against women with impunity. When a man dies without a will, it devolves to his heirs according to four categories— Class I, Class II, Agnates (if two people are related by blood or adoption wholly through males) and Cognates (who are related to the intestate by blood or adoption but not wholly through males)—with first preference to Class I heirs. In the absence of any Class I heirs, the property devolves upon Class II heirs. If a man leaves no Class I or Class II heirs, the property devolves to agnates, and then to cognates.
Class I heirs: The Class I heirs have the first right and these include the widow, daughters, sons and mother.
How the various women in a man’s life inherit his property if he dies intestate.
Wives Wife is entitled to an equal share of her husband’s properties like other surviving, entitled heirs. If there are no other sharers, the wife has full right to inherit the entire property of her deceased husband. According to Section 10 of the Hindu Succession Act, the distribution of property takes place among all heirs, including the deceased’s widow. A married Hindu woman also has exclusive rights over her individual property. She is the sole owner and manager of her assets whether these are earned, inherited or gifted. She is also entitled to maintenance, support and shelter from her husband, and if they stay in a joint family, then from the joint family. If the couple is divorced, all issues related to maintenance and permanent alimony are ordinarily decided at the time of divorce. It leads to total severance with husband and the wife does not have any right in his estate if he dies without a will. If during the lifetime of the first wife, the husband remarries without a divorce, the second marriage will be considered void. The second wife will not inherit anything and the rights of the first wife will not be affected. However, the children from second marriage will get a share along with other legal heirs. In case of an inter-faith marriage, the wife is entitled to inheritance as per the personal laws applicable to the religion of her husband. So, if a Hindu woman marries a Muslim man without converting to Islam beforehand, the marriage would neither be ‘regular’ nor ‘valid’, under the existing laws. While she will be entitled to dower (mehr), she cannot inherit her husband’s property. If the husband is a Christian, typically, the wife’s religion does not prevent her from inheriting. If the husband has left behind both a widow and lineal descendants, she will get one-third the share in his estate, while two-thirds will go to the latter. If there are no lineal descendants, but other kindred are alive, one-half of the estate passes to the widow and the rest to the kindred.
Daughters So as to end discrimination against women, changes in the Hindu Succession Act, 1956, were made on 9 September 2005 through the Hindu Succession (Amendment) Act, 2005, wherein Section 6 of the Act was amended. This means that now a daughter has an equal right to ancestral property as a son and her share in it accrues by birth itself. Before 2005, only sons had a share in such property. So, by law, a father cannot “WILL” such property to anyone he wants to, or deprive a daughter of her share in it. If the father dies intestate (Without making a Will), all legal heirs have an equal right to the property. The Class I heirs have the first right and these include the widow, daughters and sons, among others. Each heir is entitled to one part of the property, which means that as a daughter you have a right to a share in your father’s property. “A share of a predeceased daughter, which she would have got had she been alive at the time of partition, shall be allotted to her surviving children. Before 2005, the Hindu Succession Act considered daughters only as members of the Hindu Undivided Family (HUF), not coparceners. The latter are the lineal descendants of a common ancestor, with the first four generations having a birthright to ancestral or self-acquired property. However, once the daughter was married, she was no longer considered a member of the HUF. However, after the amendment, the daughter has been recognised as a corparcener and her marital status makes no difference to her right. Also, a daughter will have the same rights as a son to the father’s property, be it ancestral or self-acquired, irrespective of her date of birth. It does not matter if she was born before or after 9 September 2005. On the other hand, the father should have been alive on 9 September 2005 for the daughter to stake a claim over his property. If he had died before 2005, she will have no right over the ancestral property, and self-acquired property will be distributed as per the father’s will. In February 2018, the Supreme Court held that a daughter, living or dead, on the date of amendment will be entitled to the share in father’s property. This implied that even if the daughter was not alive on the date of amendment, her children could claim partition. In April 2018, in the case of Mangalaam vs T.B.Raju, the Supreme Court held that the living daughters of living coparceners would be entitled to claim a share in the ancestral property. A married Hindu daughter also has right of residence in her father’s house if she is deserted, divorced or widowed. In the case of a self-acquired property, he has the right to gift the property or will it to anyone he wants, and a daughter will not be able to raise an objection. Mothers & sisters Since a mother falls under the Class I heir category, she is entitled to receive an equal share of property of her predeceased son like other surviving entitled sharers. Besides, a widowed mother is entitled to maintenance from her children who are not dependents.
The sister, after a brother’s death, being a Class II legal heir would inherit along with others as per entry II only if there is no Class I legal heir and the father of the deceased have also expired.
HUF Property
After the 2005 amendment in the Hindu Succession Act, 1956, your daughter is a coparcener in the HUF. So, after you, she can claim the HUF account. You can safeguard their interests by informing the bank about HUF members and making your daughter a nominee. If the father has purchased the property after selling the ancestral property and expired after the amendment in the Hindu Succession Act in 2005, daughter is now a coparcener and hence, she has an equal share in the property. Daughter can enforce the same by filing a suit for partition. Woman’s property
Hindu Women
As per Sections 15 & 16 of the Hindu Succession Act, 1956, if a woman dies intestate, her self-acquired property goes to husband’s heirs, not her parents. In case of a man, the property is inherited by his relatives, not the woman’s heirs. This is a clear bias, wherein her property goes to husband’s heirs.
Agricultural land
In some agrarian states, women don’t inherit agricultural land to avoid fragmentation of land holding. Schedule IX of the Indian Constitution has the Zamindari Abolition and Land Reforms Acts of various states that govern agricultural land holdings, and the government’s stance disfavours women.
Tribal women
Customary laws of tribals are mostly patriarchal, divesting women of their inheritance rights. The Himachal Pradesh High Court ruling in 2015 and the Bombay High Court ruling in 2019 grant women rights as per the Hindu Succession Act, 1956, but tribal women in many states like Jharkhand continue to suffer.
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.
Christian Women
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 (Widow) 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.
Muslims
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.
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.
Muslim women
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. 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. 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.
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.