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FROM PATRIARCHY TO MATRI-MONEY: AN INHERITANCE REVOLUTION
In South Asia’s agrarian landscapes, women’s land inheritance and succession rights become an essential topic for legislative comparative research, since arable land is of great economic, political, and symbolic worth. A stable source of income and prosperity, fertile land has long been associated with social standing and political influence. Women’s rights to inherit and succeed to land are an important topic to study since they have a direct bearing on social justice, economic empowerment, and cultural identity preservation.[1] Land ownership’s longevity and permanence heighten the importance of women’s access, therefore it is critical to examine national legislative frameworks of the countries in order to promote gender justice and guarantee women’s fair participation in rural economies.
Keywords: Bangladesh, India, Inheritance, Rights, Succession, Women.
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“Her father protects her in childhood, her husband protects her in youth and her sons protect her in old age; a woman is never fit for independence.”
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Throughout history, women have faced unequal rights and limited access to remedies in various aspects of life, both globally and within different realms. This disparity has persisted for centuries, resulting in deprivation of their fundamental needs and desires.[2]
One area of study pertains to the disparity in property inheritance between women and men, as these financial assets significantly influence the lives of those who acquire inherited property.
In South Asia, LAND[3] is considered as one of the most important asset a man can own and derive not only economic and social but also political gain. It is more than often the medium for women to gain economic, social and political freedom.[4]
In this research, the author will undertake a legislative comparative analysis of two South Asian countries - Bangladesh and India.This study critically examines the status of women, as well as the rights and remedies available to them, by considering the social, political, and economic conditions of these nations, together with the relevant statutory and customary laws governing inheritance problems in these countries.[5]
The assertion posits that despite the granting of some rights to women, the actual execution of these rights remains a significant challenge. This study assesses the extent of societal and legal obstacles that women will need to surpass in order to assert their rights to equitable ownership of land and property.
Background/History of Legislation
During the 19th century, many individuals known as social reformers, such as Raja Ram Mohan Roy[6] and Ishwar Chandra Vidyasagar[7], actively questioned and contested prevailing societal conventions. Simultaneously, the British colonial authority created a favourable atmosphere for facilitating transformation.[8]
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In 2005, a significant turning point transpired with the introduction of laws that bestowed equal rights to daughters in ancestral property, therefore challenging long-standing gender disparities. Simultaneously, the Muslim Personal Law establishes guidelines pertaining to inheritance for Muslim women, encompassing provisions for financial protection and considerations connected to divorce.
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The evolutionary trajectory of inheritance laws in India is a multifaceted narrative influenced by a range of personal laws. The enactment of the Hindu Succession Act, 1956[9] represented a significant milestone in the pursuit of gender equality, as it acknowledged and affirmed the inheritance entitlements of women.
This significant legislative action effectively eliminated persistent gender-based discrimination, thereby allowing women equal rights to inherit family property.[10] The transition from historical inequalities to present-day legislative protections highlights the progress of society and its dedication to achieving gender equality.
Additionally, Article 15(3) provides for the special provisions for the protection of women, which stems directly from our Constitution's Preamble objectives of securing Equality of status and opportunity and promoting fraternity; assuring the dignity of each individual. This is just one of many constitutional protections given for the interest of women. In a similar vein are the new provisions included in India's Constitution's Part-IV, Part-IV-A.[11]
The inheritance laws of Bangladesh are intricately intertwined with Islamic beliefs, hence reflecting the cultural and religious framework of the nation. The Muslim Personal Law (Shariat) Application Act, 1937[12] establishes guidelines for inheritance, granting daughters some entitlements while taking into account socio-religious conventions. Amendments serve to recognise and respond to the current societal requirements, specifically by addressing the financial risks faced by women who are divorced or widowed.
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The idea of Faraid, which involves the allocation of shares to heirs based on their financial responsibilities and relationships, demonstrates the presence of gender inequities. In many instances, women, particularly daughters, frequently receive less portions in comparison to their male counterparts. Despite the efforts made by the Muslim Family Law Ordinance of 1961 to address these regulations, notable disparities continue to exist.
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Purpose of Legislation /Aim or Objectives
The discussion surrounding gender equality and women’s rights has become increasingly prominent in recent decades due to the success and economic growth observed in emerging nations worldwide, particularly in South Asia.
The inheritance laws in India, influenced by a diverse set of personal laws, reflect a progressive endeavour towards achieving gender equality. The Hindu Succession Act, which underwent amendments in 2005, is notable for its explicit objective of addressing past disparities by providing daughters with equal entitlements to ancestral property. The legislative purpose is evident: to deconstruct deeply ingrained gender prejudices and ensure that women receive a fair and substantial portion of familial assets.
Furthermore, within the framework of the Muslim Personal Law, there exist laws pertaining to dower rights and safeguards aimed at addressing the financial vulnerabilities that women may encounter following a divorce. The legal framework in India aims to address both historical inequities and present-day obstacles encountered by women in situations related to inheritance.
In the context of Bangladesh, where legal frameworks are significantly influenced by Islamic ideas, the legislation concerning women’s inheritance rights demonstrates a dual goal. First and foremost, the legal framework aims to harmonise with Sharia principles while simultaneously accommodating the evolving requirements of modern society. The primary objective is to establish an equitable and morally sound allocation of familial resources while adhering to religious principles.
The legal provisions aim to address the financial vulnerabilities experienced by women, particularly those who are divorced or widowed. These laws strive to offer a certain level of economic stability, recognising the wider societal implications associated with women’s financial empowerment.
SALIENT FEATURES AND COMPARATIVE ANALYSIS
The inheritance rights of women in both Bangladesh and India are intricately connected to personal laws, primarily derived from religious ideas. The present analysis examines prominent characteristics of inheritance laws pertaining to women in the aforementioned nations, with a specific emphasis on the legal structures, gender inequalities, and sociocultural obstacles.[13]
The topic of discussion pertains to the inheritance rights of women in Bangladesh, a nation characterised by its secular governance structure that regulates familial affairs through personal laws. In addition, it is worth noting that the Dayabhaga school of Hindu law[14] is responsible for regulating the process of inheritance among Hindu individuals. The doctrine of exclusion results in a restricted allocation of inheritance rights for numerous Hindu women. The Women’s Estate and Stridhana provisions give certain rights while concurrently upholding an imbalanced level of authority.
The legislative framework in Bangladesh presents avenues for bettering gender inequities. The legal concepts of Wasiyah and Hiba[15] provide women with alternative means to establish and safeguard their property rights. Nevertheless, the progress of these improvements is impeded by societal resistance, which is deeply ingrained in patriarchal ideologies.
The progression of inheritance rights for women in India exemplifies a steady advancement. The Hindu Succession Act of 1956 was the early acknowledgment of the issue at hand, while certain constraints continued to exist. The rights of women were strengthened through amendments in 1986 and 2005, which granted them equal entitlements to ancestral property. The Hindu Succession (Amendment) Act of 2005, which pertains to the distribution of property, made substantial progress in promoting gender equality. Notwithstanding these legislative gains, persistent issues arise as a result of insufficient understanding and entrenched patriarchal ideologies.
In contrast, the inheritance rights of Muslim women in India are governed by Shariah law. The observed discrepancy in the distribution of shares among male and female heirs can be attributed to prevailing conventional ideologies.
India: Section 8[16] of the Hindu Succession Act of 1956 exhaustively describes the sequence of heirs in circumstances of intestate succession. This part is critical in defining the order of relatives who are eligible to receive the deceased's property, as well as bringing clarity and structure to the inheritance process.
Bangladesh: Section 2[17] of the Muslim Family Law Ordinance of 1961 identifies heirs and their proportionate portions in accordance with the Faraid principles. The sequence of heirs is governed by Islamic inheritance laws based on the Quran and Sunnah. The Faraid concept establishes the order based on financial obligations and relationships with the departed.
India: The Hindu Succession (Amendment) Act of 2005, Section 6[18], assures daughters are coparceners by birth, marking a watershed moment in gender equality. This gives them equal inheritance rights as sons, defying conventional gender conventions and fostering more equitable inheritance distribution.
Bangladesh: According to Islamic inheritance laws, daughters may receive a smaller portion than sons. The distribution is frequently based on a 2:1 ratio, with a girl receiving half of what a son receives. Despite efforts to modify these regulations, old gender norms endure. The Quranic notion of Al-Faraid, which serves as the foundation for calculating portions, is mirrored in parts dealing with the inheritance of daughters.
India: Section 24[19] of the Hindu Succession (Amendment) Act of 2005 describes "alienation" of property, curtailing certain rights, particularly those of female heirs. By regulating property transactions, this section seeks to protect the rights of successors, particularly women.
Bangladesh: The Muslim Family Law Ordinance of 1961 covers alienation and distribution issues through alternate methods such as Wasiyah and Hiba. Sections 5[20] and 6[21] of the Muslim Family Law Ordinance, 1961, deal with gifts and wills, which allow people to distribute property outside of the customary inheritance structure.
India: Section 15[22] of the Hindu Succession Act of 1956 outlines extensive regulations for intestate succession that apply to both males and females. In the absence of a legal will, this section provides a systematic and equitable transfer of the deceased’s inheritance.
Bangladesh: Sections 4[23] and 8[24] of the Muslim Family Law Ordinance, 1961, describe property allocation in the event of intestacy.
India: Section 6[25] of the Hindu Succession (Amendment) Act of 2005 is a landmark provision that promotes gender equality in inheritance. It declares daughters to be coparceners by birth, granting them the same rights to ancestral property as sons.
Bangladesh: Section 3[26] of the Muslim Family Law Ordinance, 1961, aimed to reform several areas of Shariah legislation concerning inheritance, but cultural resistance posed a difficulty. Despite the fact that the Muslim Family Law Ordinance of 1961 aimed to alleviate gender discrepancies, imbalances exist.
India: Personal laws and customary practises control inheritance in India's legal landscape. Religious variances, such as Hindu, Muslim, and Christian laws, contribute to a complicated yet comprehensive legal structure.
Bangladesh: Over 90% of Bangladeshis practise Islam, and Muslim personal laws have a strong influence on family problems, especially inheritance. The multiplicity of personal laws for diverse populations, including as Hindus, Christians, Buddhists, and indigenous tribes, adds to the legal landscape's complexity. Therefore, a mix of Islamic and Hindu personal laws impacts inheritance practises, with Hindu women confronted with unique obstacles under the Dayabhaga school of law.
Landmarks Cases Shaping Women’s Inheritance Rights
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The Supreme Court, led by Justices Madan B. Lokur and U. U. Lalit, expressed their disappointment with the lack of progress in improving the plight of widows in Vrindavan[1] despite previous directives. The court stressed the desperate situation of widows in shelter houses and the necessity for significant improvements in public facilities.
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Vineeta Sharma v. Rakesh Sharma & Ors.[1] was referred to a three-judge bench because of the intricacy of the law involved. Due to delays caused by conflicting decisions, the Supreme Court ruled that daughters cannot be denied equity under Section 6 of the Hindu Succession Act, 2005. The judge, Justice Arun Mishra, emphasised a daughter's eternal status and ordered all pending cases to be resolved within six months.
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A three-judge court led by Justice A.K. Sikri noted conflicting judgements regarding the retrospective implementation of modifications to Section 6 of the Hindu Succession Act (2005). The case of Prakash v. Pulavati[1] decided that if the coparcener (father) passed away before September 9, 2005, daughters had no access to coparcenary property. Danamma v. Amar[1], on the other hand, ruled that daughters were entitled to an inheritance even if their father had passed away in 2001.
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The journey uncovers important insights while studying Bangladesh’s inheritance rules. A key takeaway is the transformative impact of legal reforms on societal norms and advancing gender equity and justice. Policymakers are advised to align legislative frameworks with growing gender justice ideals. The analysis emphasises societal resistance to alternate routes such as Wasiyah and Hiba, emphasising the importance of comprehensive and fundamental policy responses. Understanding the interconnectedness of religious, cultural, and legal concerns emerges as a crucial conclusion, prompting legal discourse to take a more holistic, context-specific approach.
Women empowerment through legal literacy emerges as a pivotal effect. The learning emphasises education’s transformative significance in securing legal rights and advocates for comprehensive legal literacy activities. This insight emphasises the need of educational endeavours that empower women not just via legislation modifications but also through a thorough comprehension of legal complexities for prospective lawyers.
When we consider India's history, particularly post-independence, we find ourselves on the position of unable to form any conclusions women in India. Women's journeys in India appear to be filled with both fascination and frustration.[27]
The gender gap in property ownership in India contributes greatly in increasing inequities in economic well-being and empowerment. This highlights the crucial significance of land ownership in moulding women's socioeconomic standing.[28] While increased employment prospects are desirable, they cannot replace the critical role of property rights.
The nuanced implementation of legal reforms in the Indian context is of great importance. The emphasis shifts towards the transformative capacity of policy reforms in moulding the gender dynamics. This understanding provides pathway for subsequent legislative initiatives, highlighting the importance of developing strategic policies that truly strive for gender equality.
It is imperative that legal academicians acknowledge the profound impact that legal education can have on women’s lives and encourage its incorporation into more comprehensive academic curricula. A critical insight emerges when one comprehends community dynamics and the significant impact that community leaders wield. By engaging in informed discourse, the learning outcome encourages legal advocates to foster gender-equitable and inclusive community attitudes.
Divergences in personal laws emphasise the criticality of promoting legal uniformity. The analysis emphasises on promoting a dialogue of Legal harmonization and consideration of cultural diversity in the pursuit of a Uniform civil code.
This methodology ensures the uniform application of gender justice in a variety of cultural settings, an essential factor for legal scholars involved in advocacy.
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“Women constitute half the world’s population, perform nearly two-third of its work hours, receive one-tenth of the world’s income, and less than one-hundredth of the world’s property.” Source: United Nations Report, Program of Action for the Second Half of the UN Decade for Women, 1980 |
When comparing the laws protecting women’s inheritance in India and Bangladesh, it quickly became clear that there were significant differences between the two countries’ legal systems.
Potential redressal can be found in legal processes like Wasiyah and Hiba in Bangladesh, where personal laws are firmly based in religious diversity. However, the fact that social norms are resistant shows how vital it is to have more extensive efforts for legal literacy. The takeaway message stresses the importance of culturally and religiously sensitive policies that advance the status of women.
However, despite positive developments in the law regarding succession rights in India, the country still faces difficulties, such as a lack of education and a continuation of traditional patriarchal values. This realisation is a turning point, one that should motivate a reevaluation of law curricula to incorporate full gender justice components.
The study emphasises the need for legal uniformity in the face of differing personal laws, calling for a uniform civil code to advance gender fairness without stifling cultural uniqueness. This study, conducted from the perspective of a law student, highlights the complex relationship between law, public opinion, and the transforming power of legal education. It calls upon policymakers, legal experts, and campaigners to traverse this challenging terrain with sensitivity, encouraging a more fair future anchored in both legislative changes and societal shifts.
[1] Halder, D., & Jaishankar, K. (2008). Property Rights of Hindu Women: A Feminist Review of Succession Laws of Ancient, Medieval, and Modern India. The Journal of Law and Religion, 24(2), 663–687. https://doi.org/10.1017/s0748081400001740
[2] Ibid.
[3] Shambhavi. (2022). Women's Inheritance Rights to Land and Property in South Asia A Comparative Analysis of Afghanistan, Bangladesh, India, Nepal, Pakistan, and Sri Lanka. International Journal of Law Management & Humanities, 5, 1588-[cxxxviii].
[4] Begum, A., & Saha, N. (2017). Women's access to justice in bangladesh: constraints and way forward. Journal of Malaysian and Comparative Law, 44(2), 39-58.
[5] Ibid.
[6] Htun, M., & Weldon, S. (2011). State power, religion, and women's rights: comparative analysis of family law. Indiana Journal of Global Legal Studies, 18(1), 145-166.
[7] Ibid.
[8] Emilia David, What Life was like in Ancient India, GRUNGE, (Oct 30, 2023, 02:06 PM) https://www.grunge.com/.
[9] Hindu Succession Act, 2005.
[10] Radhika Kapur, Status of women in ancient India, RESEARCHGATE, (Oct 30, 2023, 2:06 P.M) https://www.researchgate.net/.
[11] INDIA CONST. Part-IV.
[12] Muslim Personal Law (Shariat) Application Act, 1937.
[13] Singh, D. (2021). Feminist justice by way of women’s Rights to property: An Indian approach after Independence. Social Science Research Network. https://doi.org/10.2139/ssrn.3819134
[14] Knaplund, K. S. (2008). The evolution of women's rights in inheritance. Hastings Women's Law Journal , 19(1), 3-52.
[15] Shambhavi. (2022). Women's Inheritance Rights to Land and Property in South Asia A Comparative Analysis of Afghanistan, Bangladesh, India, Nepal, Pakistan, and Sri Lanka. International Journal of Law Management & Humanities, 5, 1588-[cxxxviii].
[16] Hindu Succession Act, 2005, sec. 8
[17] Muslim Family Law Ordinance, 1961, sec. 2
[18] Hindu Succession Act, 2005, sec. 6
[19] Hindu Succession Act, 2005, sec. 24
[20] Muslim Family Law Ordinance, 1961, sec. 5
[21] Muslim Family Law Ordinance, 1961, sec. 6
[22] Hindu Succession Act, 2005, sec. 15
[23] Muslim Family Law Ordinance, 1961, sec. 4
[24] Muslim Family Law Ordinance, 1961, sec. 8
[25] Hindu Succession Act, 2005, sec. 6
[26] Muslim Family Law Ordinance, 1961, sec. 3
[27] Khubber, N., & Singh, P. (2021). Women and land-holding rights in india: gener discrimination riddled with agony. Indian Journal of Law and Justice, 12(2), 193-210.
[28] The Gender Inequality Index (GII) is an index for measurement of gender disparity that was introduced in the 2010 Human Development Report 20th anniversary edition by the United Nations Development Programme (UNDP).
Authors: VIDUSHI SINGHANIA
Registration ID: 102189 | Published Paper ID: 2189
Year : Jan-2024 | Volume: 2 | Issue: 16
Approved ISSN : 2581-8503 | Country : Delhi, India
Page No : 19
Doi Link : https://www.doi-ds.org/doilink/01.2024-83994857/FROM PATRIARCHY TO MATRI-MONEY: AN INHERITANCE REV
