FAMILY LAW CIA 3

TOPIC: PATRIARCHAL INFLUENCE ON SUCCESSION LAWS IN

INDIA: HAS PATRIARCHAL INFLUENCED SUCCESSION LAWS IN
INDIA?

SUBMITTED BY: GARIO MENDEZ

SUBMITTED TO: DR. SUGANDH SAXENA, PROF. SCHOOL OF LAW

CHRIST(DEEMED TO BE UNIVERSITY), BANGALORE.

SUBMITTED ON: 15/5/2023

 TABLE OF CONTENTS

● TABLE OF CONTENTS

● ABSTRACT

● INTRODUCTION

● RESEARCH METHODOLOGY

● ANALYSIS:

● CONCLUSIONS
 ABSTRACT

This paper deals with the Patriarchal inclination in the personal and succession laws in India.
Since the 90’s, Indian succession rules have been male-dominated. Males had greater access to
property and were given the responsibility to take care of the family. It has been a male-
dominated society for a long time.

More focus is given to male members rather than females. This was mainly due to the Societal
and cultural factors and the societal views that were prevalent during that time that shaped this
notion.

But with passage of time, several advancements in this field have occurred in recent years, with
several Indian states enacting legislation that provide for a matriarchal leaning in succession. The
Hindu Succession (Amendment) Act, 2005, for example, relates to Hindus and guarantees equal
privileges for daughters in inheriting ancestral property. Similarly, the Muslim Women
(Protection of Rights on Divorce) Act of 1986 provides divorced Muslim women maintenance
benefits. Also, there is a huge scope of research and further analysis and development in this
regard.

Despite these advancements, there remains a long way to go in resolving gender imbalance in
Indian succession laws. Many personal rules still favor male heirs, and more revisions are needed
to promote gender equality in inheritance.

INTRODUCTION

The Inheritance and succession laws in India have been predominantly male dominated since its
inception. Preference of succession of ancestral property has been largely favoring the male
members than the females. This is true for all personal laws, Christian, Hindu and Muslim. In
India, succession laws have traditionally been formed by cultural and religious practices which
favored male descendants over female ones.. The system of governance or social organization in
which men maintain primary power, known as patriarchy, has been, predominantly since the
inception of the laws, a fundamental cultural and historical characteristic of Indian civilization.

Matriarchy has been common in certain parts of India, such as Kerala and Meghalaya. Here, in
these places, women have long played important roles in household and communal affairs.
Women in these areas did have some degree of equality, if not absolute, in terms of inheritance of
property. This is further elaborated below in the later part of this paper.

In many nations throughout the world, inheritance rules have historically favored males over
women, reflecting profoundly developed patriarchal norms and views. Despite recent legal
improvements aiming at improving gender equality in inheritance rights, patriarchal practices
remain firmly embedded in Indian culture, particularly in rural regions where women face major
impediments to inheriting property and other assets.

As mentioned earlier, the historical and cultural preference for male heirs in Indian culture is one
of the key elements leading to male dominance in inheritance laws. The Hindu Succession Act,
which manages inheritance rules for Hindus in India and has traditionally favored male heirs
over female heirs, reflects this inclination. A male heir had preference over female heirs in
inheriting property under the Act and daughters and spouses obtained a restricted part or limited
part of their husband's or father's property.

This represented women's traditional roles in Indian culture, which were predominantly
homemakers and carers with little rights and possibilities outside the house. They weren't given
much of an importance in terms of inheritance of property. Thus, it is important to recognize the
equal need of rights for both male and female members in lieu of the rise in feminist thoughts
across the country.
 RESEARCH METHODOLOGY

The purpose of this research study is to investigate the patriarchal effect on succession rules in
India, as well as current shifts in this trend, particularly in reaction to demands for equal rights
for both genders. The study will use a qualitative approach, relying on primary and secondary
data sources such as legal records and academic literature.

Legal papers such as the Hindu Succession Act, academic literature, etc are used as primary
sources whereas books, papers, and studies on patriarchy, gender, and inheritance laws in India
will be used as secondary data sources. The doctrinal research methodology was made use of in
order to produce this paper. Relevant data from theHindu Succession Act, relating to the
succession rights were analyzed and understood. Furthermore, several journal articles,
Newspaper articles, Magazine articles, books as well as Research Papers written by students and
researchers alike were also gathered to write this paper.

The Analytical Research Methodology was later used to evaluate all of the facts and information
collected to identify the most relevant data. Finally, all of the selected information was utilized in
order to write a detailed report about the issue at hand, which would help the reader gain a better
understanding of the topic.

ANALYSIS

As previously mentioned, the succession laws in India have been male-dominated since its
inception. Males are given more preference than females. During the 90’s, women were
considered inferior to men. They were considered incapable of handling the property inherited by
their heirs, hence little to no rights were given to them in this regard. Women were neglected to
have rights over family property. A male heir has preference over female heirs in obtaining
property under the Hindu Succession Act, which oversees inheritance rules for Hindus in India,
with daughters and wives receiving a restricted part of their spouse or father's property. One of
the few exceptions may be the Murmakattayam law.
MARUMAKKATHAYAM LAW
The Murumakkattayam law, a matrilineal system of inheritance and property rights practiced in
the Indian state of Kerala, granted women some privileges. Property and rights to inheritance
were handed down through the female line under the Murumakkattayam system, with women
having a key role in the household and its economic operations. Women were regarded as the
head of the family and had property, which they might pass down to their daughters and other
female relatives. Under the system, men were not thought to have any inherent claim to property
or inheritance.

Even though the Murmakattayam Law gave women certain rights and opportunities, it was
nevertheless influenced by and restricted by patriarchal forces. Women, for example, were
sometimes restricted to certain activities like weaving and agriculture, and were not permitted to
hold land or property outside of the family structure. Furthermore, though women enjoyed these
rights, they were still made subject to certain restrictions and their choices were limited. They
were still subject to the restrictions prevalent in the society. Overall, the Marumakkathayam
system is an uncommon instance of a matrilineal system of property and succession rights in
India, but it was also influenced and limited by patriarchal forces.

This is a rare instance of women having some rights over property. There was a similar kind of
law practiced in certain parts of Tamil Nadu as well.

THE DAYABHAGA AND MITAKSHARA SCHOOLS

In India, the Mitakshara and Dayabhaga schools of Hindu law have traditionally handled
inheritance and property rights. While both schools represent patriarchal norms and ideals, they
differ in rights provided with respect to women's property. Most rules and differences were
hugely removed with the Hindu Succession acts and various amendments.

Property is passed through male lineages under the Mitakshara school, which is widespread in
northern India. This school was followed mainly all over India except WB, Assam, Orissa.
Women had restricted property rights. Property is passed down from a father to his sons, and if
there are no sons, to his brothers or other male relatives. Daughters are normally barred from
inheritance, yet under some situations, such as being unmarried and having no brothers, they
may be eligible to a tiny portion of the estate of their father.

THE HINDU SUCCESSION ACT,1956

The Act established the order of heirs, with sons taking precedence over daughters and male
relatives taking precedence over female relatives. For example, if a man died without executing a
testament, his property would be divided among his sons, daughters, and other male relatives in
that order. The sons always had preference over the daughters .This heir hierarchy assumed that
males were the natural providers and defenders of their households, and that women relied on
male relatives for assistance and safety.

Prior to the Hindu Succession act, 1956 (hereafter referred to as the HSA,1956), there was an act
passed called the Hindu Women's Right to Property Act, 1937; 1which allowed a widow also to
succeed along with the son. However, she only takes a limited estate. It was left to the ambit of
the HSA,1956 to enlarge the limited estate to an absolute one. Further ,2 the HSA,1956 also has
improved the position of a widow of a predeceased son who dies without a male issues.

In this act, one of the few sections that does provide for some equality to women is Section 15.
This section provides for the General Rules of succession in the case of Female Hindus. Section
15 of the Hindu Succession legislation was added to the original legislation of 1956 in 2005. The
amendment seeks to eliminate discrimination against women in Hindu inheritance and
succession rules.

Prior to the changes, the legislation granted men preferential treatment in inheritance cases, with
women having limited rights and facing discrimination. Though this Section did intend to
provide some equality in terms of property rights to women, it wasn't all women-centric. If we
have a look at the section as a whole, property of the dying woman/female intestate devolves,
giving , again, more preference to the husband and the heirs of the same. Thus, though the act
did intend some equality, it wasn't much of an achievement towards the same.

THE 2005 AMENDMENT TO THE HSA, 1956: KEY CHANGE IN ROLE OF WOMEN

1
PROF. G.C.V SUBBA RAO, COMMENTARIES ON HINDU LAW, PG: 397; 8TH
EDITION;.........................................................................................................................................................................................
2
SUPRA AT, 1…………………………………………………………………………………………………………………….
The 2005 amendment to the Hindu Succession Act made substantial reforms to Hindu
inheritance and succession rules, intending to eliminate the discriminatory practices against
women that had previously existed under these laws. The amendment aimed to promote gender
equality and empower women by allowing them equal rights to inherit ancestral property and
repealing previous discriminatory practices.

Prior to the amendment, women had restricted rights to inherit ancestral property and faced
discrimination in succession proceedings. Sons had a title to the property by birth, whilst females
could only claim their portion of the land once it was partitioned. As a result, women were
frequently barred from inheriting familial property. The 2005 amendment sought to eradicate
these discriminatory practices and provide women with equal access to family property. It
granted daughters similar rights as males and removed the idea of "limited estate" for women.
This meant that daughters were given equal rights to ancestral property and were no longer
barred from acquiring property from their birth.

Furthermore, the change ended the practice of discriminating against widows in succession and
gave them the same benefits as other legal heirs. Previously, a widow had just a limited estate in
her spouse's property, which she could not dispose of without the consent of her husband's heirs.
The change repealed the discriminatory clause and gave the widow complete title to the property.
The Hindu Succession Act amendment of 2005 also aimed to empower women by encouraging
their right to self-acquired property. Previously, women had little authority over their property
and were sometimes needed to obtain permission from their husbands or male relatives in order
to dispose of it. The amendment gave women total control over their self-acquired property,
allowing them to dispose of it anyway they saw appropriate.

Overall, the 2005 amendment to the Hindu Succession Act made substantial changes to Hindu
inheritance and succession rules, with the goal of promoting gender equality and empowering
women. The amendment provided women with equal rights for inheriting ancestral property,
prohibited discrimination against widows, and encouraged women's right to self-acquired
property. While there is still more work to be done to ensure that women's inheritance and
succession rights are fully acknowledged and enforced in India, the amendment marked a
significant step towards advancing gender parity and empowering women.
 CONCLUSION

Overall, though male dominance was prevalent before, various changes are occurring, giving
more equal preference to women. As we saw before, the 2005 amendment to the HSA, 1956
proved to be a significant step towards achieving Gender parity.

Though these amendments have brought changes to the status of women in terms of succession
of property, there is still a long way to go. Even today, in various parts of the country, women
still face discrimination. With the right legislative actions and laws, we can proceed further to
achieve the goal of gender equality