The law protects Hindu widows. But there are many other factors at play

In 1996, Gauri Dasi's husband died, making her a widow. 

In the same year, when Gauri wanted to take possession of her husband's agri-land, instantly her brother-in-law, Jyotindranath Mondal, filed a case against her demanding that Gauri Dasi be disallowed to inherit any share of her late husband's agri-land. 

It opened another chapter in her life not only as a widow, but also as a victim. Though the Khulna judge's court ruled that she would be entitled to farmland that belonged to her husband, the brother-in-law appealed to the Supreme Court, challenging the lower court order.

In the last week of September, 2021, the High Court ruled that Gauri will get all her late husband's properties without any discrimination between movable, immovable, real estate, agri or non-agri property. 

While this ruling is a positive win for Gauri, there still remains a long way to a permanent establishment in favour of Hindu women's ownership of inherited property for several factors, including but not limited to the possibility that this ruling can be overturned in future, if the brother in law appeals at the Appellate court and succeeds. 

A look back at women's rights to property shows a long history of contention across countries and religions. 

While the South Asian countries follow a myriad of laws based on their different histories, politics, terrain, and culture, each country recognises land as a highly valued asset. Women generally acquire land rights through inheritance, if at all. Inheritance laws, property laws, personal laws and family laws, in many cases, are interlinked or interchangeable based on which country is in question. 

In the case of Hindu women, the first law that was enacted to address their property rights was the Hindu Women's Rights to Property Act 1937. Before this act, a Hindu widow used to be a life interest, which means she could use her late husband's property in a limited scope only to ensure basic livelihood. But she could not own or sell it.

It is still the same in Bangladesh but in 2005, India modified the act. According to India's Hindu Succession (Amendment), all the daughters would have the same right as sons to their father's self-acquired property. On the other hand, this property law is different for unmarried daughters. 

In Bangladesh, sons and daughters do not have the equal rights to property in case of Hindus and Muslims, where sons are given the lion's share. And, under the Hindu law, unmarried daughters are also considered as life interests whereas married daughters are not even considered as an heir. 

What is interesting to observe in Gauri's High Court ruling, is that even though Hindu Women's Rights to Property Act 1937 existed for decades, it is not always followed to the letter. There had been cases where Hindu widows have been deprived of their late husband's property; and this speaks to a larger factor at play here - the gender discrimination women face and are forced to live through. 

Senior lawyer Subrata Chowdhury said, "According to the Hindu Women's Rights to Property Act 1937, it has been clearly mentioned that a widow has every right to sell, cultivate and use the property of her husband for family purposes. 

In fact, when such cases are brought to the attention of the court, the ruling grants the woman property rights based on the 1937 Act. Once again this act has been explained in the judgement to make people aware." 

The judgement of Gauri's case has been done according to the state law but conflict might arise when such cases are handled according to the family law as Bangladesh and India both acknowledge family and state law. 

If someone appeals against this law in Appellate court and begs judgement according to the family law, the ruling might be overturned. 

Barrister Jyotirmoy Barua pointed to this issue. "Basically, this act is deeply rooted in religion so people might appeal against this. Usually, we have seen when family and state law clashes, family laws always prevail. So, this is a tricky situation. We cannot say anything until the Appellate Court rules on this," said Jyotirmoy. 

He continued, "In our state, there are a few conflicting laws which need to be looked at. It is not only about property inheritance. Even bank nominees also face similar issues like this. We are glad that the High Court has reaffirmed and explained this act, but a few acts also need corrections in the earliest time possible."

But Subrata believes otherwise, "Hindu Women's Rights to Property Act 1937 is a state law. So, it cannot be judged under another act. In that case, we will have to disregard the Act 1937, which is not a possibility. One can appeal against this judgement but it will only prolong the judgement of this case. Other than this, there is nothing that can happen to change the outcome of the ruling," he explained.

In answering why such incidents keep happening though it is a well-established act, Subrata said, "It is because of our social structure. Still, people do not know about this act properly hence the High Court has to deal with such cases. If everyone was aware and our local administrative officers took over the responsibility [of enforcing the aforementioned law in place], then the High court would not have to allocate time for such cases."

According to a 2009 Rural Development Center (RDI) report, many NGOs have identified in their assessments that there is a general lack of awareness amongst women and men about women's property rights and how they can be effectuated in the South Asian countries. 

Speaking to the law experts, it became clear that this ruling alone may not necessarily change the state of Hindu women in the country. For substantial and progressive change, the courts, local administrative officials need to become involved in the implementation of the law; and awareness campaigns will play a pivotal role in this change. 

Moreover, as per the experts' suggestions, such problems can be avoided if we have a unified family law. "Then, we will not have to depend on which religion describes what and all of us would be under the same law," Jyotirmoy concluded.