A Room of One's Own

Women’s right to a share in the ancestral property has evolved over the decades in India, often taking a path full of struggle, controversy and fierce debate both in the courts and legislatures as also in the public sphere. It has taken a long time for public discourse to reach a point where the question is not why women are not getting their share in ancestral property but how to ensure they do so in full measure. Now the Supreme Court seems to have set the clock back by its recent ruling that the Hindu Succession (Amendment) Act, 2005—giving daughters inheritance rights in ancestral property—will be applicable only if the father was alive when the law was passed—9 September 2005. Rather than extending the scope of the law, this ruling has restricted it. There is also a condition in the law that restricts the scope of this amendment: daughters cannot ask for a share if the ancestral property had been alienated or partitioned before 20 December 2004, the date when the amended bill was introduced. The Court was hearing a bunch of petitions on differing views of courts on this amendment.

The irony is that the Hindu Succession (Amendment) Act, 2005 is a “social legislation” since it was brought in to deal with gender discrimination in inheritance laws. Before the amendment, daughters in the joint Hindu family could not ask for inheritance rights but could only seek sustenance from the family. The amended law concerns ancestral property and not the father’s self-acquired property. According to the little data available and reported in the media, it is only a rather small percentage of Hindu fathers who even now remember their daughters in their wills covering self-acquired property. Often it is argued that the daughter’s “dowry” and the expenditure on a wedding are her share which has already been “given” to her. (That this in no way adds to her personal wealth (and may be of little use to her) is not considered relevant.) The age-old concept of daughters being paraya dhan (another’s wealth) may also be a reason for such exclusion. The feeble attempts to discuss whether a restriction should be placed on the Hindu father’s right to testamentary disposition of self-acquired property have not been fruitful.