In acknowledging the right of Hindu daughters to their fathers’ properties, the Supreme Court in Vineeta Sharma v Rakesh Sharma (2020) has restored the original intent of the Hindu Succession (Amendment) Act, 2005. The interpretation of this important social reform law was marred by conflicting and contradictory judgments by two-judge benches of the Supreme Court, and the three-judge bench in Vineeta Sharma case has cleared the confusion.
The 2005 amendment attempts to undo the discriminatory nature of the Hindu joint family towards the daughter in property matters—the culmination of a legal reform effort that dates back to B R Ambedkar’s initial draft of the Hindu Code Bill. Even as the Hindu code, in a diluted and piecemeal form, was passed between 1955 and 1956, state governments took the initiative to reform Hindu law to make it gender-just. Starting with Kerala, states such as Tamil Nadu, Andhra Pradesh, Karnataka and Maharashtra passed their own amendments to Hindu law, ensuring equality to daughters in inheritance of property.
Research has revealed that property ownership gives women not just economic freedom and security, but also protection from marital violence and an enhanced social standing. Scholars’ work has shown how property ownership, even more than employment and education, seemed to correlate with a reduced incidence of domestic violence, especially marital violence in Kerala. Further studies have shown that there have been significant improvements in the educational attainment of girls and employment opportunities for women following the passage of the 2005 amendment. The second-order effects of property ownership, for women, are therefore quite significant.
However, while the 2005 amendment guaranteed the rights of women to property on paper, its implementation on the ground, as reflected in property ownership by women, remains ineffective.
Drawing upon data from the 2011 census and the 2015–16 National Family Health Survey, the Centre for Land Governance has shown that there are vast disparities between India’s states when it comes to ownership of land. Among the states, Meghalaya had the highest landholding by women (26%), while Punjab had the least (0.8%). States in the south and the north-east of India do much better than northern and western states on this front. States with large agricultural populations, such as Bihar and Rajasthan, also fared poorly on this index.
The data also shows that states that have given daughters coparcenary rights over their fathers’ property (including all the southern states) have among the best rates of property ownership among women across the country.
One of the difficulties in effectively implementing the 2005 amendment is due to the chaotic and inconsistent manner in which landholdings are recorded across the country. While some states (such as Karnataka) have digitised rural landholdings, others still rely on paper documents, which are not always reliably maintained or updated. This means that women’s rights to property are not always properly recorded, depriving them of their rights over it. This problem is most acutely felt by women farmers who, despite working on the land that they think they own, are unable to provide documentary evidence of the same when needed. This makes them vulnerable to land-grabs by their own relatives and others.
While a private member’s bill was moved by M S Swaminathan to solidify the rights of women farmers over their own property (the Women Farmers’ Entitlements Bill, 2011), it did not get much traction. However, given that agriculture and agricultural property is a state subject, it is debatable if this bill would have been constitutionally valid even if it was passed. Nevertheless, with implementation ultimately in the hands of the state, this is one area where state governments will have to take the lead.
Similar problems persist in urban areas. In the absence of a clear title, women are forced to undertake long and expensive litigation and to claim what is rightfully theirs. This is only if they resist the pressure from the rest of the family to give up their rights in favour of their brothers “in the interests of family.” Even though the law may attempt to accommodate women’s rights in the Hindu joint family as far as property rights are concerned, it cannot make the structure itself less oppressive barring wider social changes.
The Supreme Court’s judgment in the Vineeta Sharma case, while it theoretically benefits every Hindu woman whose father may have ancestral property, is unlikely to benefit all of them. It will bring certainty to those currently in litigation, and it may even encourage those with the resources to litigate for their rights if they are willing to hazard their rights in India’s broken judicial system, but it is unlikely to bring about a radical transformation in the status of women. Much greater efforts are needed on the part of the government and the judiciary to make sure that women’s right to property is meaningfully protected.