Recognising Gender-Based Discrimination In India's Inheritance Laws

India doesn’t have a Uniform Civil Code, which means the law in matters pertaining to inheritance and sharing of property differs for people from different faiths. Every religion practiced in India is governed by its respective personal laws – which includes property rights as well. The personal laws regulate marriage, divorce, maintenance, inheritance and succession for the citizens. These laws differ in line with the religion that a person belongs to. The three important laws in regard to property share are the Hindu Succession Act, 2005, Muslim Personal Law (Shariat) Application Act, 1937 and the Indian Succession Act, 1925. In addition to these laws, there are state laws that govern inheritance of certain assets such as land.

In almost all of the personal laws, the way in which property is inherited differs for men and women. Sons are considered to be sharers of the properties whereas daughters are considered to be residuary. A Muslim daughter inherits only half of the inheritance given to a Muslim son and a wife’s right to a husband’s property is half of a husband’s right to the wife’s property. In contrast, a daughter is entitled to inherit an equal share as a son in the Hindu and Christian law. A Hindu woman’s parents have a right on her property only if she has no husband or children but the same is not the case for a Hindu man. A Parsi woman loses her right to inheritance if she marries a non-Parsi. Similarly, a non-Parsi wife cannot claim inheritance to her husband’s estate.

Published in the State of Land Report 2018, the index put India’s average women’s land rights at 12.9 per cent. Inheritance of agricultural land is governed by state laws – In states such as Uttar Pradesh (up until 2020) and Uttarakhand, transgender individuals were not allowed to inherit land. In States such as Haryana, Himachal Pradesh, Jammu and Kashmir and Punjab, daughters do not inherit the farm land of their parents. In a country where 73.2 per cent of rural women workers are engaged in agriculture, women own only 12.8 per cent of land holdings. In Maharashtra, 88.46 per cent of rural women are employed by agriculture, the highest in the country. In western Maharashtra’s Nashik district, women own only 15.6 per cent of the agricultural land holdings, amounting to 14 per cent of the total cultivated area, as per the Agricultural Census.

Another thing to note is that as all the laws are written in gender binary, people identifying themselves as gender fluid or non-binary are completely excluded from the inheritance laws. During the inheritance cases, these individuals are involuntarily have to be bucketed as either male or female to claim their shares. There are a lot of instances where such people are denied the rights to inherit the family property, thus putting them in a financially stressful situation. The percentage of total property owned by women and transgender is quite low in India. This becomes even worse when we talk about productive assets such as farm land.

Article 14 of the Indian constitution states that no person will be denied equality in the eyes of law and Article 15 states that there shall be no discrimination against any citizen on grounds of religion, race, caste, sex and place of birth. However, it is clear that the existing inheritance laws in place deny the right of complete equality.