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A new law which prevents adult children from claiming their parents’ property

December 18, 2007

There has been some brouhaha lately about the news that daughters-in-law cannot lay claim to their in-law’s house, according to an order passed by the Bombay High Court…unless her husband too owns the same.

In perhaps the first order to define ‘shared household’ under the Domestic Violence Act, the Bombay HC has held that a daughter-in-law can’t claim any legal right of residence in a house belonging exclusively to her mother-in-law.

Well, if people cannot claim a house which does not belong to them, it sounds logical to me. In fact, this is not the first time that such an order has been passed. About nine years ago a similar judgment passed by the Bombay City Civil court, although in different circumstances. It had been ruled that:

since the wife is a mere family member, she has no direct control over her father-in-law’s property, and he can ask her to vacate the premises in the event of a dispute.

And during this judgment, a previous judgment was cited where the Supreme Court had restricted the daughter-in-law of a 79-year old lady from entering her house.

The owner decides…and naturally!
The laws of the land also state that the owner of any self-earned property can do whatever they like with their property…only the spouse can stake a claim. Sounds fair to me.

If willed, they can take it back!
In fact a new bill (The Maintenance and Welfare of Parents and Senior Citizens Bill) passed by parliament this month which says that Senior Citizens can actually take back any property that has been given to their children. This is one of the most remarkable judgments passed by the Indian government. It goes to show how much we as a nation revere our old.

(Update: One of my readers, Ankur informed me about a new development today which I had missed. The Supreme Court has said that parents cannot take back property that has been already given to their children. This was reported today, and the SC has overturned it’s earlier order).

A message to young couples
To my mind, I think this judgment sends a clear message to those who are dependent on their parents’ property. And also to women who are deluded into thinking that they have a house just because they live with their in-laws. I think this sort of judgment is good because it will make young people attempt to secure their own future by buying their own house. And most people who are earning can afford to buy a room somewhere! The problem is that they don’t want to lower their standards.

Young Indians often depend on their parents for shelter
Many young Indian adults do not buy their own house, expecting as they do to inherit. There is a symbiotic relationship between parents and children in Indian society and a certain amount of quid pro quo is expected. This may sound very cold hearted but it is a fact that the son and daughter-in-law are expected to look after their old parents and in return they can expect to get the property and other wealth. This is usually not talked about (although I know of a family where it has been discussed openly). If for some reason this arrangement does not work out, or there is a falling-out, then parents might not want to will their house/wealth to their grown-up children. The fault may lie with either party…either in-laws expecting too much from their son and/or daughter-in-law or the son/daughter-in-law not fulfilling their obligations. And nowadays this falling out is happening more often than it did earlier…

But buying one’s own house might drive a wedge between the parents and the son, as in some cases the elderly see the purchase as a ‘threat.’

But are the elderly being neglected in India today?
Well, that depends on what how you would define neglect. Let us restrict ourselves to physical looking after as that is what the law seeks to address. Both the Bill and the HC judgment are to prevent grown-up children from taking advantage of their parents…either to force them provide shelter and maintenance and to stop them from taking over their parents’ house.

To my mind, that sort of thing does not happen very often (though such incidents may be on the rise) and I have written about that here. If one takes it percentage wise, I would say a majority of young Indians look after their parents. I have argued that as child abuse by parents is rampant in India, it’s not surprising that a certain percentage of these children grow up and abuse their parents in turn. Not all abused kids turn on their parents. Far more kids are abused by their parents than vice versa. Also, children who have grown up without seeing values of decency and humanity in their own homes also tend to turn on their parents.
Please note that I am not making judgments of right or wrong here…I am just stating what I think happens and I am certainly not an expert.

The good old days
In the old days everyone lived together, and elderly people, even if distantly related tended to gravitate towards the more wealthy relatives and they spend the rest of their lives there. It was taken for granted that widows, single women or even male members who were not earning could live in the same house and perhaps contribute in some other way. Today with smaller houses, greater mobility (which disrupts the life of the elderly) and nuclear families, life has changed so much that many elderly people prefer to live separately if they have the wherewithal.

So are laws to protect the elderly a good thing?
Well, I personally think such laws will simply hasten the demise of our strong parent/children bonds. The parents will always have a legal right to be in their son’s home or in a house rented/bought by their grown-up child (right to maintenance) but it will never be the other way round. It’s a good thing, because as I said earlier, young adults will ensure that they become independent.

Adults who want to abuse their parents will do it anyway and those adults who look after their parents will wonder if their parents think they are doing it out of ‘duty’ or because of the law. And as for that judgment about daughters-in-law not having a legal right to their in-law’s home I think it’s really sad for those women who are abandoned by their husbands.

(Photo taken by me on the streets of Mumbai)

Related Reading: Old people in India are respected, but children are not

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21 Comments leave one →
  1. December 18, 2007 10:20 am

    Very informative Post Nita. These laws makes lot of sense.. If you count number of properties in Litigation, You will find more than half the City area in Litigation ;)

    Read this recent interesting story of “Son evicting parents” from Bangalore – owners of “Jewels de paragon” – a biggest jewellary shop located on Prime area of Bangalore – MG Road.

  2. December 18, 2007 10:28 am

    come on don’t tell me u can pass laws which can force u or me to take care of someone…
    btw u said the willed property can be taken back:
    1) todays paper contained this article
    http://timesofindia.indiatimes.com/India/Parents_cant_take_back__property_gifted_to_kids/articleshow/2629850.cms
    2) does this law bypass the hindu laws according to which the ancestral property has to be divided?

  3. December 18, 2007 11:38 am

    Thanks Bharath, shall check out those links.

    Ankur, thanks for that link. I think our country is a confused one! This link says the opposite but as yours is more current it looks like again the Supreme Court has overruled a law! There is another news report which also says that parents can take back the property. The link I gave in my article has gone defunct but I am now replacing it. Thanks.
    I think if the Supreme Court has said that it is not legal to take back property then it’s a logical outcome. I will make an update in the post. Later: I found out that the SC has overturned it’s earlier order.
    P.S Ancestral property is not self-earned property so the father/mother have no right to will it. It is divided as per the HUF laws.

  4. December 18, 2007 11:44 am

    @ Nita:

    I think both parties are complicit for any unfair or weird ‘system’ to continue.

    Parents in India famously do not write wills; it is assumed that sons will inherit while daughters will not. When daughters challenge this assumption, they are accused of being greedy and brothers threaten them with a loss of “maika” visitation rights.

    Progeny on the other hand assumes they will inherit and if the parent chooses to write a will and pass on the property to one or more children, or to a third party, they are dragged to court where children try to prove the parent is mentally unhinged and hence the will is not valid.

    By and large, both scenarios illustrate to me that no matter what laws exist, if there is no respect for the legal system and legalities – all of course in the name of maintaining ‘tradition’ – things will drag on the same old, same old.

    That said I am familiar with many scenarios of educated people – where daughters gave up their property in the interest of family ties and were rewarded with lost ties anyway; where daughters-in-law have threatened parents-in-law demanding a share of the property even as they threaten to divorce the son and no violence or anything is involved; where daughters and sons not taking care of their elderly widowed parent yet opposing his remarriage anyway citing ‘he is selling my inheritance’.

    You are right. People need to stop relying on parents with the kind of barefaced sense of entitlement that we see in India. But then again, for poor decisions re financial priorities, parents in India will also be forced to ask tough questions about financing expensive schooling versus buying their own property early on in life; financing expensive weddings versus saving for retirement and so on.

    As I often write, Nita, this is a case of children bringing parents up too. And parents willing to ‘grow up’.

    We need to educate them about what is happening in the changing world. We need to do our bit to ensure they remain healthy and happy and comfortable; but on the other hand, when we assert financial independence, they need to stop giving us ear-ache and start to learn to celebrate that they have definitely brought up a fine young person into the world.

  5. December 18, 2007 12:29 pm

    this is classic east vs west philosophy
    i may be generalising
    here kids tend to take their parents property as theirs
    the parents over control or dominate their kids too

    on will and gifting t is all clearly laid out in the definition
    and the deed.even gifts need a gift deed and each deed should beheld on its own merits..
    problems arise when nothing is put down on paper.

    on the issue womens rights to property of husbands parents
    blame it on many absurd laws to protect married women
    which r rather high handed.. and unjust …

    P.S Ancestral property is not self-earned property so the father/mother have no right to will it. It is divided as per the HUF laws.
    well it also depends on when it devolved
    if before 1950 it can be taken into huf
    or else it becomes coparcenary property and hindu law of
    succession half to wife and half to children applies in case there is no will.

  6. December 18, 2007 2:30 pm

    Thanks Shefaly for that lovely comment. You have encapsulated the complexity of the subject very well.

    Prax, thanks for the clarification on HUF. I was aware of it but was not sure of the year.
    And yes I think in this respect we are very different from the west. Over there the kids become independent at a very early age and do not face interference from parents, unlike here. But here we have the financial and emotional support of parents throughout our lives, so one comes with the other.

  7. December 18, 2007 7:51 pm

    A word or two from “over there” in the west… Pennsylvania, USA. What I like best about the net is that we have the opportunity to learn things that we otherwise would not know if we depended soley on other media sources for our information. I’ve enjoyed reading this!

    However, I must tell you that over here some few “kids become independent at a very early age and do not face interference from parents.” But the majority remain very dependent on parents for financial and emotional support, sometimes throughout their entire lives, and beyond.

    The expectation that children here will gain a share of parents wealth through inheritance is great here…even among those so poor there really isn’t anything worth having or fighting over…as often happens, with or without a will.

    Women’s rights are progressive here because women fought for equality. They still do because of antiquated ideas by some, but overall women are better off in US and Europe than in most other places.

    Children, however, are not well off or properly protected throughout the world. As you may know, the US is one of only two countries that has not ratified the UN Children’s Rights Convention. I’m sure you are familiar with the report India recently released on child welfare. I am impressed with it.

    Nice chatting with you…
    A Child is Waiting.
    Take Care…Be Aware.
    ChildPersonFromTheSouth

  8. wishtobeanon... permalink
    December 18, 2007 8:10 pm

    Nice post and a relevant topic!

  9. December 18, 2007 8:22 pm

    @Nancy Lee Gray:

    Thanks for that insight! I guess we assume that things are very different in other parts of the world, and everything looks greener! But while things may be different, I guess they aren’t that different. We are all human beings after all and I have realised how much people across the world share in common after I entered the world of blogging.
    And about reports, well, India is great with releasing reports…it’s the action that’s leaves much to be desired!
    Thanks again. :)

  10. December 18, 2007 8:22 pm

    There is a quote from “Made in Japan” written by Akio Morita which I wish to share here as it is related to this article: “It is a common saying in Japan today that inherited wealth will not last three generations unless a family works and adds on to it, because the inheritance taxes (In Japan) are so high”. The government in Japan makes sure that unearned wealth neither goes to the daughter in law, nor the daughter nor the son because the inheritance taxes on such wealth is very high. Why dont we follow that system in India? Forget what the government or courts think about it, what do the people of India think about it?

  11. December 18, 2007 8:41 pm

    wishtobeanon, thanks. :)

    destinationinfinity, I doubt whether in a poor country like India people will take to this idea. Japan is one of the richest countries in the world. On the other hand the govt. will be very happy to levy this tax!

  12. Vipul permalink
    December 18, 2007 9:20 pm

    destinationinfinity – I dont think inheritance tax should be used to correct any social ills that might exist. If anything, the trend is for governments to reduce them. Thats currently happening in the UK where they are increasing the deductible thresholds.

    Further, I believe that no government (definitely not the Indian govt) knows how to spend ‘my’ money better than I do.

  13. December 18, 2007 9:40 pm

    I would like to quote something from the book “Sixty Million Frenchmen cant be wrong” – “Tax avoidance and tax heavens are virtually unheard of in France. If they find that there has not been adequate service given by the Govt on a certain Public Administrative issue, the people do not demand their money back. Instead they demand better service and most often, get it too”. Perhaps this is why the French public adminstration is considered as one of the best. If the Indian Govt is not able to spend the money obtained by the taxes in the right way, that is a different topic altogeather. What I meant was, taxes or no taxes, how many Indians would come forward and say that I would not depend on my ancestoral property and I will work hard and make my own money? It is this attitude that I was vouching for. Another related quote : “Cut your own wood and it will warm you twice”, this from an ancient Chinese proverb.

  14. December 18, 2007 9:52 pm

    @destinationinfinity:

    These are indeed very noble thoughts and I agree with them on principle. However as a nation we haven’t got it right as yet! We are quite passive when it comes to demanding anything from the govt. for one thing.

  15. Feminist permalink
    December 18, 2007 11:48 pm

    “And as for that judgment about daughters-in-law not having a legal right to their in-law’s home I think it’s really sad for those women who are abandoned by their husbands”

    I worry that laws like these might turn out to be really harmful for some women. I am very much in favor of being independent but I do know of families where the D-I-L is not allowed to work by her in-laws. And if she is kicked out she probably cant go back to her parent’s house because of the stigma. Can you imagine her plight? What about the women whose education was sacrificed so that their brothers could study? How are they to be independent with no skills and no education? These women are completely dependent on their husbands and their in-laws and a law like this would only make the situation worse.

  16. December 19, 2007 5:05 am

    That was a great article, Nita, and the comments have been fascinating!

    I agree with Nancy Lee Gray that children are more dependent on their parents here in America than one might at first suppose. I’ve read from more than one source that this has become increasingly true as the American economy has changed in the past 30 years or so. That is, it’s become more difficult for children to achieve complete financial independence.

    Historically, if you go back to the days of the frontier, then things where very different. In his book, “Democracy in America”, Alexis De Tocqueville writes that it was common in the 1830s for 15 year old males to strike out on their own and be treated as full adults by their communities!

    If I may interject a personal note: My mother has reached the age of 89, is still capable of living alone, and she’s so independently minded that she refuses to either live with any of her sons, or to have anyone live with her. It’s possible I’m a wee bit biased because she’s my mother, but I think she’s a remarkable lady to be living exactly as she wants at the age of 89. :)

  17. December 19, 2007 5:56 am

    Just read through the entire post again, before posting my comment, and realized that most of my points were addressed in your post, most satisfactorily.

    My question however is how you decide to “govern” social issues that are not restricted in its timeline, and hence impossible for the meager resources of a court to adjudge. If the “oppressed” were capable of using laws, they would use the ones already in place. They would be empowered. How do new laws change anything unless the executive branches are forced to pull up their socks? New laws provide the ignorant public the sense of security, that someone up there (read government, not god) is “trying to do something” for their benefit.

    All in all, this Indian government shows us how laws can be made, with absolutely no effect on its intended targets.

  18. December 19, 2007 7:39 am

    Feminist, yes that is a big downside of the law. But it will speed up the process of women’s education in the long term. I firmly believe that women have to fight for their rights which I don’t think they are doing well enough. This does not mean that I am blaming them, but just that the world is a cruel place and the law doesn’t shed tears. Women have to defy their parents and in-laws, get educated, get a job and buy their own roof somewhere! Easier said than done I know, but this law will hopefully wake up those women who feel that working isn’t necessary. I know an educated woman, a 30 year old, who believes that women should stay and home and look after the house and cook hot meals and serve their husbands! And she comes from an educated, well-to-do family. I am not saying women shouldn’t do these things, not at all, I believe in the value of this work, but to think that financial inpendence is not necessary is living in an ideal unreal world. There are many women who look down on working women and they have internalized the traditional male views, conveniently forgetting that in the old days women were never left to fend for themselves! They always had shelter.

    Paul,
    I think your mother is a great lady and that’s what I want to be in my old age!
    About American kids being increasingly dependent on parents, I wonder if it’s a material thing or a change of values…

    DD,
    well, the laws are a start and we all live in the hope that the executive will improve. I believe there’s an improvement, even if it’s a slight one. One of the reasons is that now India is now in the spotlight. I think the next five years will determine whether we will really improve.

    Worth,
    thank you for your words and the beautiful poem. It touches the heart. :)

  19. December 19, 2007 12:17 pm

    Nita – this is a great post and has initiated a lively and informative conversation. One aspect of growing up in Canada, per example is that up to the age of majority of children, parents are obliged to provide shelter, food and education. What happens to children after they reach an adult age is variable. Those whose families can afford recieve extended support for their further education, in establishing themselves in life and business. By no means is this common. I know of families where the boy’s post-secondary education was paid for by parents and the two girls had to work at several jobs to pay for their own education. There are innumerable circumstances where the children have to make their own way completely, with parental support given as is possible. Because of the way families are stuctured here – as nuclear, rather than extended, wives have enshrined legal rights to goods and materials gained within their own nuclear family- but not to the estate and goods of their spouses’ parents. As a woman I inherit from my parents. My husband inherits from his. Our child inherits our estate if we both die. If my husband predeceases me, I inherit everything as set out in his will, then my son inherits upon my death. As you, I also hope to be able to maintain my life independently as long as I am able and don’t consider my son to be ultimately responsible for me as an aged female parent. but by no means is this expectation a universal one here. There are variations and different permutations in family structure, much more loosely defined by custom or tradition than in India.
    As to increasing dependence by the young on their families here, there seems to be a trend of cleaving closer to the family these days, and an increase in people remaining adolescents into their thirties – this may have to do a lot with material expectations of our young – they can have and do what they want in greater comfort if they stay within the family compound. Of course, this is a complex issue, much more so than I have talked about here. G

  20. December 19, 2007 5:09 pm

    True, young should be independent. It is a good thing, I agree. Perhaps it also dissuades misuse of laws by women.

    I have argued that as child abuse by parents is rampant in India, it’s not surprising that a certain percentage of these children grow up and abuse their parents in turn.

    If not for that phrase “a certain percentage of these”, this sentence could have been an grossly incorrect opinion. Because there are thousands of examples where young abuse elderly emotionally and physically without any such history.

  21. December 19, 2007 5:58 pm

    Suburbanlife, thanks. I think I understand the situation there better now. Culturally it’s expected that young adults go out on their own but now it’s changing but at the same time it’s very individual. Ofcourse a very complex issue and thank you for that detailed answer. Here too women by law can inherit from their parents but it remains on paper, sadly! I should have mentioned this in the main post. Here women are afraid of upsetting their parents and brothers and therefore often voluntarily give up their rights on the matrimonial home. Fathers make will of their self-earned property simply to disinherit daughters. It’s a sad situation!

    Poonam, thanks for your comment. I have a strong belief in ‘as you sow shall you reap.’ Maybe it’s wrong, but I do believe that if one brings up children in a normal, decent way they turn out well, assuming the parents themselves are not setting examples of indecency in their behavior towards others. For example if you tell your kid to be caring but you yourself are mean and ruthless in your relationships, the chances are that the kids will imbibe it. In our society we tend to blame the young, not the old and I feel this isn’t fair.

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