Sikkim Succession Act unfair to women but how soon until it favours them?

Sikkim Succession Act unfair to women but how soon until it favours them?
Photo Credit: Luxury Trails of IndiaLaw From 371F to Sangha seats, Sikkim's constitutional history needs local attention From 371F to Sangha seats, Sikkim's constitutional history...

Inheritance is the practice of passing on private propertytitlesprivilegesrights, and obligations upon the death of an individual. s. The distribution of the inherited wealth has varied greatly among different cultures and legal traditions. The rules of inheritance differ among societies and have changed over time. Inheritance plays a significant effect on social stratification. Inheritance is an integral component of family, economic, and legal institutions and a basic mechanism of class stratification. It also affects the distribution of wealth at the societal level. It is further argued that the degree to which economic status and inheritance is transmitted across generations determines one's life changes in society.

The rules and regulations of succession for women have been administered with strong gender bias, with women usually denied equal ownership right. Ongoing adherence to male-dominated traditions of property ownership generally means that women cannot take advantage of the wide range of benefits associated with ownership and control of property. The ownership of land plays an important role in strengthening women’s agency and giving them opportunities to assert themselves. However, women's property rights are often assumed through the security of male, household head, and some inheritance laws allocate less property to female heirs than male heirs. This was especially seen in old-world cultures but continues in our society to this day. 

According to the journal Inheritance of Indian women: a perspective by Sona Khan (2000):

“The inheritance of women in India is a matter related to socio-economic issues, based on culture and religion rather than on the spirit of the law and its implementation. It is well known that inheritance is one of the ways for women to get ownership of the property. Ownership of assets of any kind is a surer way of getting respect and appreciation in the family and society. All economic rights have the potential of being transferred to the next generation. History records that framing of property laws has always been an exclusively male prerogative; therefore, these laws tend to be heavily loaded in favour of men, with little scope for questioning for an inherent unequal character. Therefore, the concept of equality becomes merely academic, whenever provided even as a condition.” 

In India, the succession law varies from one religious’ belief to another. While the government continues to improve economic opportunities for women, inheritance laws remain strongly biased against women, even today. In Sikkim, neither the Hindu Succession Act, 1965 nor the Indian Succession Act, 1925 has been extended or enforced pertaining to succession of properties (movable and immovable) of Sikkimese people. 

The Sikkim Subjects Regulation, 1961 has made the inheritance of status dependent upon the father’s status. Under the Sikkim Subjects Regulation, a Sikkimese woman who married a non-Sikkimese man would lose her status as a Sikkim subject. However, this was not the case for men marrying a non-Sikkimese woman. Further, a non-Sikkimese woman could become a Sikkim Subject based on her husband’s status. 

In 1962, The Married Women’s Property Regulation, provided for a Sikkimese woman to lose claim over any landed property if she were to get married to a non-Sikkimese man. However, if the immovable property was registered in her name prior to her marriage, then she would be able to enjoy the property only for her lifetime. This came up for a challenge in 1977 in Padma Kumari Ganesan v. Secretary, Land Revenue Department, Govt. of Sikkim. In this case, a woman married a non-Sikkimese man; however, she was the only heir of her mother and her mother wanted to transfer the land in her name. This was refused by the Land Revenue Department. The High Court of Sikkim found that the Regulations had not been notified and hence, there was no legal bar for the land to be transferred in Padma Ganesan’s name.

In 2008, “the Sikkim Succession Bill,” tabled by Social Justice Minister Hissey Lachungpa, provided legislation for equal property rights to daughters, wives and divorced and abandoned wives having Sikkim subject holders. According to the Act, property (movable and immovable) of a male Sikkimese, if he dies, will go to the surviving members of his family-wife, sons and daughters in equal proportion. However, a Sikkimese woman who has married a non-Sikkimese or has acquired foreign citizenship shall not be entitled to enjoy the benefits under this Act 

In 2017, the act (Sikkim Succession Act, 2008) was challenged before the high court on the grounds that it violates the basic rights of equality. In the Basanti Rai & Ors. v. State of Sikkim by a group called Daughters of Sikkim, the petitioners, married to non-Sikkimese had filed a writ petition questioning the legality and validity of Sikkim Succession Act, 2008 wherein the women married outside Sikkim are deprived of their rights to the ancestral properties. The State government in its reply stated that the Act is in paper only as it has not been notified. The state government deemed the Act null and void, which means there is no law which bars women married outside Sikkim to buy or sell land. Also, if any department refuses to register land in the name of the daughters, they can fille in a separate case claiming damages from the state.

Thereafter pursuant to Basanti Rai’s case, the Land Revenue Department haphazardly issued a notification in June 2018 thereby conferring an ownership right to Sikkimese women married to non-Sikkimese even after her marriage. However, the land registered in her name shall not be further transferred to her offspring. 

Furthermore, several Sikkimese women have filed a petition in High Court challenging the Sikkim Succession Act, 2008 for being discriminatory. Although the Sikkim Succession Act, 2008 grants daughters and wives’ equal rights to hold and inherit property, it denies these rights to women married to non-Sikkimese men, or those who have acquired foreign citizenship. Immovable assets of Sikkimese women married to non-locals cannot be transferred to their legal heirs. Rooted in the system of patrilocal marriages, the same rule is not applicable to Sikkimese men who marry non-Sikkimese women.

The High Court of Sikkim has issued notice to the state government in this case.

While there are a growing number of contemporary laws, as framed by the modern State, which gives inheritance rights to daughters when they are recognized as individuals among the communities, the process of marriage and the traditionally patrilineal customs have remained largely unchanged. Thus, there remains a mismatch between marriage practices and inheritance laws, with the strength and biases of the marriage practice often overriding inheritance laws. This is also evidenced in the process of dowry practices. In many cultures, a daughter's dowry is viewed by her family as her direct portion of her inheritance, even though it may be typically absorbed by the new husband and his family. Thus, while in some communities’ women do have the formal rights to inherit lands, the social representation of inheritance in the form of dowries and the strength of the practice of marriage trump given laws. 

By Mahima Grace Rai

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