Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (32 page)

Men and women had unequal succession rights in other ways too until the past decade. The heirs of an intestate man included kin two generations down the male line of descent, but only one generation down the female line; daughters-in-law and granddaughters-in-law were Class I heirs who were given first priority in succession, but not sons-in-law or grandsons-in-law; and agnates had priority over cognates. The rules for succession to a woman’s property also limited the shares of the woman’s heirs. If a woman had no children and had been predeceased by her husband, her property devolved, in descending order of priority, on her husband’s heirs, her parents, her father’s heirs, and her mother’s heirs. However, property she inherited from her parents devolved on her father’s heirs and property she inherited from her husband or her father-in-law on her husband’s heirs, reflecting the persistence of colonial constructions of women’s property as limited estate, to be inherited by the heirs of the last full owners of such property.
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The Bombay High Court upheld these rules of devolution of women’s property because it considered them based on propinquity and the rules of Mitakshara law in
Sonubai Yeshwant Jadhav v. Bala Govind Yadav
(1983).

Besides, Section 4(2) of the HSA exempted the provisions of state-specific laws to prevent the fragmentation of agricultural holdings, for the fixation of land ceilings, and for the devolution of tenancy rights in agricultural land from the succession rules of the HSA. It was meant to prevent the patriarchs of major landholding families from nominally devolving family land to various individuals to circumvent land ceilings. But it also served to restrict women’s rights to inherit agricultural land in six states in northern and northwestern India (Delhi, Haryana, Himachal Pradesh, Punjab, Uttar Pradesh, and Jammu
and Kashmir), in which strong patrilineages shaped land reform legislation to give women very limited land rights. (Lineages enjoyed greater scope to do so, because Article 31b of the Indian constitution exempted land tenure laws from the need to be compatible with the fundamental rights). In Punjab in 1969 and in Haryana in 1979, the legislatures considered bills to exclude daughters entirely from inheriting agricultural land, supposedly to prevent the fragmentation of family land. The Haryana legislature passed this bill, but the President of India denied it his assent, needed for state legislation on matters under the concurrent jurisdiction of the national government to take effect.
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In the other states, land tenure laws specified that the relevant personal law or the HSA would apply to the devolution of agricultural land (in Madhya Pradesh and Rajasthan), or specified no rules for devolution, resulting in the HSA’s succession rules being applied to Hindus (in much of Andhra Pradesh, as well as Tamil Nadu, Kerala, Karnataka, Maharashtra, Gujarat, Bihar, Orissa, and West Bengal).
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Finally, a man’s daughters, wives and mothers were given the right to reside in his ancestral home, considered the seat of the patrilineage, but not to have the house partitioned to claim their shares if male kin lived in the home; and married daughters were denied the right to live there unless they were widowed, separated, or deserted by their husbands.

Although daughters had the smallest shares in joint property among the nuclear family members, the courts decided that Section 6 of the HSA offered them little room to increase their shares. Moreover, they upheld unequal rights in the ancestral home, except for giving daughters the right to partition them if their male kin rented out their shares.
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However, some of them found justification in the Explanation to Section 6 for giving widows the same shares as sons in family joint property when the man died. In cases in which widows claimed shares of joint property although their sons did not partition it, some high courts understood the notional partition effected to determine the interest of the deceased in joint property to not give the widow a share in this property. Some of them drew support for this interpretation in the view, predating the HSA, that the widow’s share in joint property was only a substitute for maintenance.
¹²⁷
However, the majority of high courts understood such notional partition to give the widow a coparcener’s share in the
joint property even if the coparceners did not choose to partition this property, starting with
Rangubai v. Laxman Lalji Patil
(1965).
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The Supreme Court made this interpretation definitive in
Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum
(1978).

The limited rights that the HSA gave women in joint property led Parashar and Newbigin to connect the act’s continued recognition of the joint family’s control over property to the limits on women’s rights.
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However, women’s inheritance rights were limited not so much because the HSA recognized the joint family as because of its primarily patrilineal construction of inheritance. Indeed, the amendments made in the HSA, initially in certain states and then at the national level, increased daughters’ inheritance rights not by dissolving family joint property, but by requiring that such property be devolved bilaterally and equally to sons and daughters rather than patrilineally and primarily to male kin. This partly reconciled the ownership of property by kin collectives with the promotion of women’s inheritance rights.

B. Early Reform Initiatives

The judicial enhancement of widows’ rights in joint property did not bring these rights on a par with those of sons, since they did not make widows coparceners able to claim their shares in such property while their husbands were alive, and did not reduce testamentary rights (usually used to disadvantage female kin, including widows). Moreover, courts did not reduce the most glaring gender inequalities in Hindu succession law, which concerned daughters’ rights in joint property, the order of succession to separate property, and rights in the ancestral home. Furthermore, the Marriage Laws (Amendment) Act (1976) reduced the inheritance rights of the daughters of Hindu, Sikh, Buddhist, and Jain couples that had registered their marriages under the SMA, because it applied the rules of the HSA to such women (and their siblings), rules which limited their access to joint property and shares in such property, rather than those of the ISA, which had governed them until then and had given them rights equal to those of their brothers in all family property.
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In response to these inequalities enshrined in the HSA, women’s organizations and other civil society organizations demanded changes in these provisions from the 1970s onward. But they emphasized these concerns less than
those to amend laws concerning domestic violence, dowry, rape, and workplace harassment—because women brought the latter concerns to their legal aid centers more frequently, and these organizations connected women’s well-being more closely to employment and income than to property ownership. (Agarwal highlighted the limitations of this approach in various writings). Official committees concerned with women’s well-being nevertheless discussed inheritance law reform. The CSWI’s report of 1974 demanded the equalization of sons’ and daughters’ rights to inheritance and in the ancestral home, and indicated a preference for dissolving
Mitakshara
coparcenaries. In 1995, the NCW recommended that daughters be made coparceners on birth in
Mitakshara
joint property without decomposing the property into separate shares, and that rules for succession to women’s property be made the same as those to men’s property; and in 1998 the Committee for Gender Equality in Land Devolution in Tenurial Laws specifically recommended the equalization of the land tenure rights of men and women.
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Some of these recommendations were adopted, initially in the southern and western Indian states of Kerala (in 1976), Andhra Pradesh (in 1986), Tamil Nadu (in 1989), Karnataka (in 1994), and Maharashtra (in 1994), and later through national government legislation (in 2005). All these reforms were presented as meant to improve women’s condition, curtail dowry, and realize constitutional equality. However, they varied in crucial ways.

The Kerala Joint Hindu Family System (Abolition) Act ended the legal recognition of the joint family, and converted coparceners in joint property into tenants in common whose shares in such property it took to have been partitioned, as the CSWI had recommended. Although it pertained to all of the state’s residents, it was significantly based on the Hindu Code Bill that the Parliamentary Select Committee had presented to parliament in 1948. But while the Hindu Code Bill had envisioned the partition of joint property equally among all members of the Hindu Undivided Family that owned this property, the Kerala act made a crucial distinction. In families that had been governed by
Mitakshara
law, it partitioned the property only among the former coparceners (that is, certain male kin), but in families governed by other laws (including the majority of the state’s families to whom various matrilineal laws, such as the Marumakkathayam, Aliyasanta, and Nambudiri systems, had applied until then), it partitioned the property among all members.
¹³²
Thus, after the passage of this act, the Kerala High Court recognized the rights of women to shares in their Marumukkathayam
tharavad
’s (matrilineage) property in
C. Vathsalan v. Kotta Madathil Narayanankutty
(2007) and
Shanta v. Sahadevan
(2011) (as had the Supreme Court in
C. T. Radhakrishnan v. C. T. Viswanathan Nair
(2006)), but rejected the claims of women who had been governed by
Mitakshara
law to shares in their natal families’ joint property in
Puthiyadath Jayamathy Avva and Others v. K.J. Naga Kumar
(2000) and
Dharmambal v. S. Lakshmi Ammal
(2002). Not having examined the relevant case law, Sivaramayya believed that the act did not benefit daughters and Agarwal that it gave all daughters the same rights in joint property as sons.
¹³³

In Andhra Pradesh, Tamil Nadu, Karnataka, and Maharashtra, daughters who were unmarried when the HSA was amended in the state were made coparceners in joint property, and the NCW recommended that the rest of India follow this approach. Legislators provided two reasons to exclude already married daughters from coparcener status—daughters leave their natal patrilineages on marriage, and parents spend considerable amounts on their daughters’ wedding expenses and dowry. The differential treatment of married and unmarried daughters showed that patrilineal visions of family identity, as reflected in the
shastras
, were relevant in these regions too, making other states less resistant to these reforms.
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These amendments were prospective; courts gave daughters increased shares in joint property only if the property had not been partitioned before their passage.
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They rejected the pleas of women litigants to make these provisions retrospective
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and to treat daughters married before these amendments were passed as coparceners, based on legislative intent to ameliorate women’s circumstances.
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These reforms reduced the shares that sons could get through survivorship if they had not partitioned their shares of joint property before the amendments took effect, because they increased the number of coparceners. They also reduced the amount of property accruing to widows and mothers through succession, because they diminished the interest of the deceased in such property. The entitlements of widows declined more in Andhra Pradesh, Tamil Nadu, and much of Karnataka, where they were not given shares of joint property on partition based on the Dravida school of
Mitakshara
law, and less in Maharashtra and the parts of northern Karnataka that had been part of the Bom
bay Presidency, where they were given such shares on partition based on the Maharashtra school. Testamentary rights were not restricted in either Kerala or the states in which unmarried daughters were made coparceners.
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Agarwal highlighted the influence of kinship practices over the location of the earliest reforms in southern India, where the prevalence of bilateral and matrilineal inheritance and lineage formation, the frequency of intravillage and intrakin marriages, and varied patterns of postmarital residence reduced support for patrilineal authority and limited resistance to giving women rights in family property.
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In Kerala, where succession law was changed earliest and most extensively, a high proportion of the population was matrilineal and women’s standards of living were by far the highest in India.
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The prevalence of matriliny and the high levels of women’s education aided the growth of strong women’s organizations, which exerted extensive pressure to increase women’s inheritance rights, preferably by dissolving joint property. The ongoing gradual erosion of matriliny made many men accept the dissolution of joint property for reasons unrelated to women’s rights. In the abolition of the joint family system, various men saw a means to symbolically end the association of their castes with matriliny, which was linked to “tribal” status by many Christian missionaries who had long been active in Kerala and by certain Hindu and Christian elites who wished to associate themselves with the emergent national mainstream. These inclinations reinforced the demands of women’s organizations to dissolve joint property. In Andhra Pradesh, Tamil Nadu, and Karnataka, bilateral kinship practices were widespread, certain smaller groups were matrilineal, and village and kin endogamy were common. These factors also reduced resistance to the reforms in these states.

Patterns of party and civil society mobilization also influenced the location of the early reforms in ways that Agarwal did not discuss. In Kerala, women’s organizations were strong, and some of them were associated with the Communist Party of India, which led the alliance that ruled the state when joint property was abolished. The Congress Party, the other partner in that alliance, was also eager to associate itself with this change passed during the authoritarian “emergency” that the party oversaw and justified as a means to promote the interests of the underprivileged. Somewhat different political alignments proved conducive to Hindu succession-law reform in Andhra
Pradesh, Tamil Nadu, Karnataka, and Maharashtra. The Telugu Desam in Andhra Pradesh and the Congress Party in Karnataka and Maharashtra had considerable support among women, which they tried to consolidate by amending the HSA. In Tamil Nadu, the All India Anna Dravida Munnetra Kazhagam (AIADMK), which had lost power a little before the passage of the legislation, had comparable support among women. The leaders of the Dravida Munnetra Kazhagam (DMK), which had replaced the AIADMK in power, saw an opportunity to rebuild their party’s female support in the recent demise of the AIADMK’s founding leader, and followed the Andhra Pradesh precedent for this reason.
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Women’s organizations reinforced the calculations of the ruling parties, particularly in Kerala and Maharashtra where they were strong and had contributed to a public ethos that dissuaded other parties from resisting this measure. Thus, the enhancement of women’s rights in joint property faced little legislative opposition, even from the BJP whose predecessor organization (the Bharatiya Jan Sangh) had stoutly resisted more modest reform proposals in the 1950s.
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Resistance to women’s inheritance rights declined for this reason even in states where it had been strong until the 1970s. As a result, widows (but not daughters) were placed on a par with sons as heirs of tenure in agricultural land in 1982 in Uttar Pradesh, in northern India, in a change that was in keeping with the patrilineal understanding that men’s wives and widows become part of their lineages, while their daughters leave these lineages on marriage.
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