India’s inheritance system is complex but one thing is clear—daughters not getting their share

Whether courts truly uphold women’s inheritance rights was the focus of a session at Delhi’s IIC, part of Vidhi Centre’s new lecture series, ‘The Law through the Lens of Hard Data’.

Bina Agarwal, professor of development economics at the University of Manchester’s Global Development Institute., delivering her talk on women's inheritance rights in India | Photo: Khadija Khan

New Delhi: Women in India may now have inheritance rights on paper, but families still shut daughters out, even as courts keep flipping their stance with contradictory rulings. And data collected by researchers Bina Agarwal and Shruthi Naik shows that most women who own land are widows, not daughters.

“We found that most of the women who did own land were older widows. Inheritance reform has strengthened the daughters’ rights, but the fact that most of this land went to widows shows that the amendment to the Hindu Succession Act in 2005 did not have much of an impact,” said Agarwal, professor of development economics at the University of Manchester’s Global Development Institute.

Agarwal was addressing a room full of lawyers, academics, and students at the India International Centre in Delhi, as part of a new lecture series by the Vidhi Centre for Legal Policy called ‘The Law through the Lens of Hard Data.’ Moderated by Alok Prasanna Kumar, co-founder of Vidhi Karnataka, the session questioned whether courts are truly honouring women’s inheritance claims.

Before laying out the data, Agarwal traced the roots of inequality back to ancient legal traditions. Two major schools of Hindu law—Mitakshara and Dayabhaga—have influenced  property rights for centuries. The Mitakshara system, which is followed in most of India, does not recognise daughters as coparceners, while the Dayabhaga system offers slightly more rights to women.

“Most women fall under the 12th-century Mitakshara system,” Agarwal said.

And there’s a north-south divide too.

“Inheritance systems in India are very complex because they vary by religion, region, and types of property. If you look at, say, landed property, women in North India have different rights as compared to women in South India,” said Agarwal.

Despite modern laws that are supposed to ensure gender equality, families in India rarely pass immovable property to daughters. Agarwal presented her research—co-authored with Naik, a senior resident fellow with Vidhi’s JALDI (Justice, Access, and Lowering Delays in India) team—drawing on high court and Supreme Court judgments.

She pointed out that only 14 per cent of all landowners in India are women, and just 11.6 per cent own agricultural land. Southern states perform better in general, with Andhra Pradesh, for instance, recording 32 per cent women landowners in 2014—compared to a mere 5.6 per cent in Odisha.

What’s more, nearly half of women who approached the courts for their coparcenary shares have walked away disappointed.

 

Reforms vs realities

Decades of legal reforms were meant to level the playing field for daughters, but the reality is far more complex due to deeply entrenched beliefs and practices.

At the outset, Agarwal recounted the drafting of the Hindu Code Bill in 1942, which sought to strengthen daughters’ inheritance rights. But the proposal was met with heated debate and mixed responses from legislators.

“While some, like Nehru and Ambedkar, supported it, others said it would spell disaster,” she noted. Finally, after years of “delays and compromises”, the Hindu Succession Act was passed in 1956. Before this, daughters could only inherit property in the absence of four generations of male heirs.

“(The Act) shifted women’s rights from a position of gross inequality to a fair degree of equality,” Agarwal said. Before this, women could only inherit property in the absence of four generations of male heirs.

However, Agarwal pointed out that some inequalities remained. For instance, daughters were still not recognised as coparceners—a status that grants right by birth to joint family property.

To address some of these issues, the Hindu Succession (Amendment) Act 2005 came into force, giving equal rights to daughters in ancestral property. But this came at a cost to widows, according to Agarwal.

“In a lot of social movements, we forget that when we raise the rights of one category of women, we simultaneously reduce the rights of another category of women. This means that while the new law made daughters and sons equal, it reduced the rights of the widows,” she said.

Further when it came to agricultural land—a crucial form of wealth—state-level land reform laws were far from uniform, with Agarwal noting that, historically, southern and western states have generally been more favourable to women.

“But where are we in practice after a century of efforts?” Agarwal asked the audience.

The fact that only 14 per cent of women own land in India speaks volumes about the gap between legal reforms and real empowerment.

“It is actual ownership, where women own the land in their name, which will bring them the expected welfare, efficiency, and other benefits. There is a vast global body of empirical work on this. If the woman owns assets, it makes a huge difference to (her children’s) welfare, health, education, survival, and empowerment,” she said, adding that women who own property are generally at a lower risk of domestic violence.

For many women, too, tradition often trumps law. Agarwal highlighted the common practice of rural women giving up their shares in the family property in favour of their brothers—usually to maintain harmony.

“Many don’t contest their claims. Others do contest them, but they may seek other routes, such as out-of-court settlements,” she said.

 

Legal maze

The battle for inheritance rights is compounded by a daunting legal system and prohibitive costs.

Agarwal said many women opt for out-of-court settlements instead of litigation. Citing a study by the legal think tank Daksh, she said the average litigant spends 25 per cent of their income just attending court hearings. Meanwhile, only 2.4 per cent of women use court-appointed lawyers. The reason for these low figures is that most women tend to seek mediation or negotiation for fear of ruining their family relations, she said.

Then, there are the courts’ conflicting rulings on women’s inheritance claims.

According to Agarwal, in 48 per cent of such cases, women were denied their coparcenary shares.

“Between 2016 and 2020, the Supreme Court changed its position four times,” she said.

In 2016, SC ruled that daughters cannot claim coparcenary rights if their father had died before September 2005, when the amendment was enacted, Agarwal pointed out. Then, in February 2018, a ruling asserted that daughters’ rights to family property were a birthright, regardless of when their father died.

“However, another 2018 case that drew on state-level statutes returned to the earlier position that the father had to be alive for his daughter to claim coparcenary shares,” Agarwal said. “In 2020, we had a two-judge bench saying that a coparcenary right is a right in birth, unrelated to the father being alive on a particular date.”

Agarwal then voiced her exasperation to the audience.

“To those of you who are advocates in the Supreme Court, I really would like to ask you what on earth is going on?” she asked. “What does my right in the property have anything to do with my dad being alive or not?”

(Edited by Asavari Singh)