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Transgender Inheritance Rights In India: A Case For The Third Gender

In this world, if someone asks about the living beings, what comes to our mind is human beings and flora and fauna in a nutshell. If one further asks the classification of human beings on the basis of gender, the answer which almost immediately strikes to the minds of majority is male and female, the two binaries. This is not the complete story but only a part. There exist other groups of our fellow human beings including "The Transgenders", which is one such group which are a part of our community and who are mostly never accepted or treated as fellow humans in our world. This becomes all the more evident when we look at the Indian society which has a whooping population of 3 million transgender as of 2014.[1]

Not only this, in our Indian society, there are evidences in texts and folklores of the existence of the non-binaries for over 2000 years. In India there exist a group of Transgenders known as 'Hijras' also known as 'Kinnars' and is one of the oldest transgender community.[2] This community has been subjected to centuries of discrimination, ostracization and inhumane treatment.

Also there didn't exist some concrete or clear laws for them. They have been struggling and fighting for ages for their rights and have won and been granted a few of their rights, but for the purpose of this paper we will limit the scope to their rights falling within the ambit of family law that includes matters like marriage, inheritance (succession) etc, more specifically the laws dealing with the inheritance of the Hindus, the Muslims and the Christians.

The Indian Society And Transgenders

The term 'Transgenders' as defined in the 'Transgender Protection of Rights Act, 2019' under Section 2(k) is "transgender person means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta."[3]

The Hijras or Kinnars or the transgender community present in India, has been existing in our country for a very long period of time and have played important roles in the Hindu Society, for more than around 2000 years now.[4] What better proof of their existence and importance in the Hindu Society than looking at the holy texts Ramayana and Mahabharat, wherein Arjuna takes the form of a third gender.[5]

The Hijras are considered divine in the Hindu Societies and are called upon to bless the newborn child. Many Hijras also rose to significant posts during both the Hindu and Muslim rulers. (around 15th to 19th Century)

Even after holding such an important position in our Hindu Society, till date, these marvelous and divine creations are discriminated and often looked down upon, leading to them being ostracized and not being treated as fellow humans. The start of this discrimination and inhumane treatment of the transgenders in India isn't something new and is also centuries old but the most prominent period that added the most to worsening their status and place in the society, (which till date is not very good, although has improved quite a lot as is mentioned later in this paper), is the colonial era and certain laws introduced by the Britishers during their rule.

One of the laws passed, that was very discriminatory and draconian for the transgenders (hijra community) in India, was the Criminal Tribes Act, 1871. Due to certain provisions of this act, the transgender community in India, was criminalized. Sections like 27 of the act permitted that transgenders be arrested without warrant and imprisoned, if found with a boy below the age of 16 years.[6] In a nutshell, this act, rendered the status of the transgender community, which pre-colonial era was a respectable one during the Mughal and Hindu rulers era, to be reduced to that of criminals.

The effect of this act and them being regarded as criminals not only affected them socially but also affected them on the personal level where they were left fighting for their existence and acceptance with themselves and their family members. This sort of lack of their recognition socially in their family and in the society did a lot of harm to their legal status in the country, especially their inheritance rights, which is the main them around which this paper revolves.[7]

Inheritance Laws And Transgender Rights In India

In India, the personal and social sphere is governed by a wide variety of both national and personal family laws, like Hindu Personal Law, Muslim Personal Law (also known as the Shariat Law), etc, but for the purpose of this paper, we will deal with the two aforementioned personal laws and look at what they have to offer when it comes to the topic of inheritance with a special focus on 'Transgenders'.

In India, the rights of Hindus, Jains, Sikhs and Buddhists, with respect to the topic of succession/ inheritance, is governed by the Hindu Personal Law statute, the 'Hindu Succession Act, 1956 which was subsequently amended in the year 2005.

Hindu Succession Act, 1956: Under this act, the major groups which will be governed, as mentioned earlier, are Hindus, Jains, Sikhs and Buddhists and the same can be seen in the Section 2(1) of the said act.[8] This act lays down, in its various different sections and provisions, the various laws relating to the topic of inheritance and succession of both the joint and separate properties. Broadly speaking, the act talks about the devolution of interest in coparcenary property, succession as in the case of males and succession as in the case of females.[9]

In the act, as mentioned above, there are different provisions for the succession of the properties belonging to a male intestate and a female intestate. Section 8 of this act talks about inheritance of a male intestate's property whereas Section 15(1) talks about the same with respect to females.[10] As is evident from the above lines and from the language and wordings of a lot of other provisions of the act, when it comes to the topic of gender, the genders included within the scope of the act are the two binaries i.e., males and females.

By far, two of the clearest examples, in my opinion, that make the gender biasness of this act towards the two binaries, pretty evident are:
The section 3(f) that mentions the heirs as only males and females and the schedules of the different class heirs which also mentions only males and females. Thus, in a nutshell, the transgenders have no rights of inheritance as per the Hindu Succession Act as only the two binaries (Males and Females) fall within the ambit of Hindu Succession Act, 1956.

An interesting fact about the Hindu Succession Act, 1956 was its amendment in the year 2005. Prior to the amendment, the act didn't give equal rights to the sons and daughters and thus the act discriminated even between the male and female offsprings. Such was the repressiveness of the act prior to the amendment.

Post the amendment, daughters were given equal rights as sons in the coparcenary property and that daughters just like the sons, would become coparceners in the property by virtue of birth, which wasn't the case prior the 2005 amendment.[11] But till now, the 'transgender' community hasn't been included and given rights within the ambit of Hindu Succession Act 1956 or Hindu Succession (Amendment) Act 2005.

Muslim Personal Law:

One of the other major personal law that this paper deals with, is the Shariat Law, which largely is uncodified and governs the Muslims. In India, the Muslims are further divided into two groups namely 'Shia' and 'Sunni'. Just like the Hindu Personal Law, the 'transgender' communities right to inheritance and overall status has gone for a toss, under the Muslim Personal Law (Shariat Law), as nowhere the mentioning of the inclusivity of transgenders, can be seen here.

The Muslim personal law too recognizes only the two binaries i.e., male and female, when it comes to the question of genders recognized under it. The evidence for the same can be found on taking a look at the list of the sharers and residuary for both the Shia and Sunni Inheritance laws.[12]

Indian Succession Act, 1925:

Indian Succession Act, is another act that is applicable in the sphere or Inheritance and Succession. The Christians and their inheritance of the property is governed by this Indian Succession Act, 1925. The situation here is different from the other two personal laws mentioned hereinabove in this paper. This Indian Succession Act is more progressive and more inclusive when it comes to recognizing the transgenders.

The majority of the Christian community has approved the idea for the inclusion of 'Transgenders' in Section 44 of the Indian Succession Act, that talk about the inheritance rights over the ancestral property.[13] The Minorities Commission of Delhi after getting the aforementioned approval, recommended the same to the Law Commission of India.[14]

Changes In Their Legal Status And Scenario: A Few Landmark Cases And Steps By Government"

With the passage of time and the changing of the country's overall scenario i.e., legally, socially and politically, the status and situations of the transgenders in the country has also changed, thanks to the aforementioned changing scenario, increasing awareness amongst citizens including transgenders and their (transgenders) ongoing struggle and fight for their rights.

There have been a lot of landmark cases and judgement passed by the Indian Judiciary, that has come as relief for the transgenders and have given them some of their much-needed rights and the recognition in the society.

In the case of National Legal Services Authority v. Union of India & Ors[15], the court clearly recognized the transgender community and gave them the status of the 'third gender'. Not only this, they also ruled that transgenders have a right to self-identification of their gender. The Hijras falling who also fall under this category can also claim their rights like right to education, inheritance of property, employment etc.[16]

Another landmark case dealing with transgenders was the case of Arunkumar & others v. The Inspector General of Registration & other.[17] In this case the court ruled that the term 'Bride' in the Hindu Marriage Act, will include Transwomen.

Likewise, in the case of Ganga Kumari v. State of Rajasthan,[18] wherein Ganga Kumari was denied her job of women constable even after passing all the requisite medical and fitness tests, solely on the basis of her belonging from the 'third gender'. She argued that this was violative of her right mentioned under Article 14 of the Indian Constitution. The court, following the precedent laid down by the NALSA judgement, ruled in her favor and held that she, Ganga Kumari, had the right to self-identification of her gender and that she should be rehired.[19]

Not only this, there are other developments, for the benefits of transgender community, that has taken place lately, like the passing of the 'Transgender Protection of Rights Act, 2019' which clearly prohibits any kind of discrimination against the transgender community solely on the basis of them belonging to the 'Third Gender'.[20]

One step taken by the government, that deserves special mentioning in my opinion, is that the Uttar Pradesh government updated and revised their Uttar Pradesh Revenue Code, 2006 in the year of 2020 and this revision included the transgenders and extended the right to inherit and own ancestral agricultural land, to the transgenders.[21]

Suggestions And Conclusion
Even after so many developments, the transgenders, who are considered as 'divine' by the Hindus, are still struggling for their recognition and equality when it comes to the matter of inheritance and property rights and many more other rights. I would like to suggest one way out but even that is not free of problems. Like the amendment of 2005 to the HSA, that included females (daughters) and gave them rights equal to that of sons, we can bring an amendment to include the 'third gender' under different personal laws like Hindu Succession Act (HSA) etc.

The problem with this is the applicability. Since it doesn't have retrospective applicability, what will be fate of the transgenders and their rights in the property if their father died before the passing of this amendment ? This is a question we need to deal with.

In a nutshell, we have come a long way forward in granting the transgenders their much-needed recognition and rights, but we still aren't all the way there and the third genders have a long journey full of fights and struggle to completely end discrimination against them and be granted all their rights.

  1. Laxmi Narayan Tripathi, Hijra Rights Activist.
  2. Transgender Protection of Rights Act, 2019.
  3. Case study, The Third Genders and Hijras (Harvard Divinity School).
  4. ibid.
  5. Criminal Tribes Act, 1871.
  6. Rupal Sharma, "Inheritance Rights of Transgenders- A cry of Humanity", (IJLMH, Vol 1, 2018) 1.
  7. Hindu Succession Act, 1956.
  8. Shankar Banerjee and Vishwa Deepak Bhatnagar, Transgender Property Right in India (Vol 10, JETIR 2023) a314.
  9. ibid at a315.
  10. Hindu Succession (Amendment) Act, 2005.
  11. Rupal Sharma, "Inheritance Rights of Transgenders- A cry of Humanity", (IJLMH, Vol 1, 2018) 3.
  12. ibid.
  13. Maria Akram, Christian Transgenders to have equal rights on ancestral property, (New Delhi, The Hindu, 12 May 2016).
  14. National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
  15. Rupal Sharma, "Inheritance Rights of Transgenders- A cry of Humanity", (IJLMH, Vol 1, 2018) 3.
  16. Arunkumar & Others v. The Inspector General of Registrations & Other, W.P. (MD) NO. 4125 OF 2019.
  17. Ganga Kumari v. State of Rajasthan, (2017) Civil Writ Petition No. 14006/2016.
  18. Vagisha Anand and Vansh Gandhi, Inheritance Rights Through the Lens of Transgender Community (Jus Corpus Law Journal, 2022) 391.
  19. Transgender Protection of Rights Act, 2019.
  20. Vagisha Anand and Vansh Gandhi, Inheritance Rights Through the Lens of Transgender Community (Jus Corpus Law Journal, 2022) 392.
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