My Kashmir is “Almost Matriarchal”– Our Inheritance Laws Are Proof

Kashmiri women have been an empowered lot and Kashmiri society is almost matriarchal, writes Aakansha Kaul.

Kashmiri women have been an empowered lot and Kashmiri society is almost matriarchal.

(Photo: AP)

I am a state subject (permanent resident) of Kashmir, born and brought up in Delhi. I have certain rights in addition to those given to the citizens of India who are not state subjects of Kashmir. But I am also a woman.

Can the State take away some of the rights conferred on me by virtue of me being a state subject of Kashmir and a woman? The answer is no, and that is what a full bench of the Jammu and Kashmir High Court held in the State of J&K v Dr Susheela Sawhney [1] case. By virtue of being a ‘state subject’, I have the right to inherit and own property in Jammu and Kashmir.

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Sense of Association With Kashmir

Having grown up listening to stories about life in Kashmir from my parents and grandparents, I value this right. I have been adamant that my family continue to own property in Kashmir. It gives me a sense of continued association with the state, my roots, and my heritage. It gives me an incentive to periodically visit it.

My father had told me that till some years ago, female state subjects could not inherit property if they married a non-state subject, but that changed with the Dr Susheela Sawhney (supra) judgment. Though I am a lawyer, I never looked at the judgment or the law that existed before and how it had changed.

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However, I did assume that if I could inherit and own property, I could also pass it on to my children. A few days ago, I was told that that was not the case. If I married a non-state subject, I would not be able to pass on my property to my children, but nobody was able to provide me the legal basis for this statement. It is then that I decided to study the law on the subject.

This is when I realised that what I was told was incorrect.

Let me explain.

The Constitution of Jammu and Kashmir defines ‘permanent resident’ in terms of the definition of ‘state subject’ in a notification dated 20 April, 1927. The notification divides ‘state subject’ into three classes. Relevant for the present purposes is that the notification inter alia provides as under

• Note-II: The descendants of the persons who have secured the status of any class of the state subjects will be entitled to become the state subjects of the same class. For example, if A is declared state subject to class-II, his sons and grandsons will ipso facto acquire the status of the same class-II and not of class-I.
• Note-III: The wife or a widow of a state subject of any class shall acquire the status of her husband as state subject of the same class as her husband, so long as she resides in the state and does not leave the state for permanent residence outside the state.

The question referred to the full bench of the High Court in Dr Susheela Sawhney case was “whether the daughter of a permanent resident of the state of Jammu and Kashmir marrying a non-permanent resident loses her status as a permanent resident of the State of Jammu and Kashmir, to hold, inherit, and acquire immovable property in the state?”

Till the judgment was passed, daughters of a permanent resident of the state marrying non-permanent residents were being denied their right to inherit property on the basis of a flawed interpretation of the aforesaid ‘Note III’.

The High Court interpreted the aforesaid ‘Note III’ and found that the note did not apply to female state subjects marrying a non-state subject. Note III was found to apply only to a female who is a non-permanent resident of the state and marries a permanent resident of the state.

The High Court observed that the status of being a permanent resident of the state acquired by a person, whether by a male or a female, on birth by operation of law, ie, by virtue of Note II will continue so long as the person remains the citizens of India. It is important to understand that the Hon’ble High Court did not grant any new right to female state subjects, but merely clarified the rights inherited by them.

My right (and that of other ‘descendants’ of state subjects like me) to inherit property is traceable to Note II above. This note is gender neutral and does not discriminate between male and female state subjects [2]. Thus, what follows from Note II and the judgment is that descendants of male and female state subjects can inherit and own property in Kashmir.

An Almost Matriarchal Kashmiri Society

The problem that remains is that if a female state subject marries a non-state subject, there is no provision that entitles her husband to the status or rights of a state subject. Since time immemorial, the state has jealously guarded its subjects from the onslaught of the outsiders to come and settle in the state permanently, and therefore, the unambiguous policy of the state has been not to let outsiders acquire any interest in the immovable property in the state in any manner.

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[3] The only exception is that provided in above Note III for wives and widows of state subjects. There is no equivalent provision for husbands of state subjects.

My parents always tell me that Kashmiri women have been an empowered lot. Kashmiri society is almost matriarchal. In fact, in his concurring judgment, Justice T Doabia noted that in ancient India, women had a better position than what they came to have in the subsequent colonial period.

He described the rulers of Kashmir as ‘progressive’. Importantly, he concludes that a “female state subject has to be treated at par with a male state subject.” If a female state subject has to be treated at par with a male state subject, Note III has to be made applicable to husbands of state subjects.

[1] AIR 2003 J K 83

[2] The High Court in Dr. Susheela Sawhney case clarified that the qualification in Note II is only illustrative because the descendant may be male descendant or a female descendant. It may be a son or it may be a daughter. A son or a daughter born to a state subject of class I of class II shall ipso facto acquires the status of state subject of class I or of class II provided he or she is a citizen of India.

[3] AIR 2003 J K 83

(The author is a Delhi High Court advocate. This is an opinion piece and the views expressed above are the author’s own.The Quint neither endorses nor is responsible for the same.)

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