Gender bias: India's inheritance laws 'assume' men alone are providers of family

By Urmi Ashok Badiyani* 
The subject of inheritance is governed by the personal laws in India. 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.
For example, all Muslims in India are governed by Muslim Personal Law (Shariat) Application Act, 1937 whereas all Hindus are governed by acts such as Hindu Succession Act of 1956, Hindu Marriage Act of 1955 and Hindu Code Bill. These personal laws govern how the property of a person is inherited. In addition to these laws, there are state laws that govern inheritance of certain assets such as land.
In most of the personal laws, the way in which property is inherited by the members differs for men and women. 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. It is also interesting to note the terminology used by the laws. Sons are considered to be sharers of the properties whereas daughters are considered to be residuaries.
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.

Biases in the state laws

While the inheritance of property is governed by personal laws which are uniform across the country, inheritance of agricultural land is governed by state laws. In states such as Uttar Pradesh (up until 2020) and Uttarakhand, transgenders 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.
These inheritance laws have two major implications:

1. Women get an unequal access to the financial assets. The asset ownership in India is skewed in favour of men. The exact extent of this cannot be calculated due to the lack of data on the subject collected by the government.
2. 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 people are forced to be bucketed as either male or female to claim their shares. This identity is sometimes borrowed from their birth certificate. 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. These laws create a framework wherein a section of our society is derived from gaining access to financial equality and working towards creating financial stability for themselves. 

Generation after generation, concentration of assets in the hands of males is increased and the disparity that currently exists would continue or be worsened if the laws that are biased continue to exist.

Why are these laws even present?

The laws are built on the assumption that men will be the providers of the family with the responsibility of meeting the needs of the family, women will undertake the unpaid labour at home and non-binary people will be eliminated from the system.
In addition there is an underlying idea that men are heirs and carry forward the family legacy because of which they inherit the wealth from their parents whereas women are married and given a share of their wealth in the form of moveable property like jewellery. These assumptions about division of work and strict boundaries of gender led to creation of these gendered inheritance laws.

Generation after generation, concentration of assets in the hands of males is increased and disparity that currently exists would worsen

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.
On perusal of the rules stated above, it is clear that the existing inheritance laws in place deny the right of equality and non-discrimination that is bestowed upon by the constitution of India on her citizens as their fundamental rights.

Learning from other countries?

The inheritance laws of countries like USA and France are written in a language that is gender neutral. Rather than using words like sons and daughters, gender neutral words like parents, children and spouses are used. Using of these gender neutral words create a legal ecosystem where a person is entitled to inheritance irrespective of their gender and the existing elimination of gender non-binary people and biases against women can be amended.
An approach akin to the one taken by countries like USA and France can be taken in India and the gendered references in the inheritance law can be eliminated from the statues and replaced with gender neutral terminology.
In state laws where inheritance of farmland by women is not allowed due to the fear of fragmentation of land, option such as the first right of refusal meaning that if a legal heir wants to sell their piece of land, the siblings will get the first right to purchase the land at market value.
With these changes an equal and unbiased legal system can be created for people of the country irrespective of their gender identity.
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*Second year student at the Indian Institute of Management, Ahmedabad