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  • Soubir Bose

Transgenders & Inheritance rights: The legal roadblocks

While our Constitution guarantees equality in every sphere of life, including law, to every Indian citizen, the reality is starkly different. Even in this 21st century, there are several marginalised communities in our country, for whom equality is a distant dream. The transgender community is one such. They continue to fight for many of their fundamental rights, including the right to inherit property.


The ‘Gender’ Issue

In India, a person’s inheritance rights are governed by the personal laws of his/her religion. The fundamental issue is that when it comes to inheritance, only two genders are acknowledged — male and female.


As per the Hindu Succession Act, 1956, only a male or female is considered to be the ‘heir’ in the event of someone dying intestate. The irony is, the Act is gender-neutral; its sections 24 and 26 list the reasons for disqualifying a person from inheritance, and they don’t mention being transgender as a ground for disqualification.


The only way out for most transgenders to claim their inheritance is by compromising their gender identity – they have to identify themselves as either a male or female, depending on the gender mentioned in their birth certificate. This is a blatant violation of Article 15 of the Indian Constitution, which prohibits any kind of discrimination on grounds of a person’s sex.


The Sharia Law, which governs the inheritance rights of Muslims, too acknowledges only people of the ‘male’ and ‘female’ genders as rightful successors. However, there’s a slight ray of hope when it comes to Christian property rights, governed by the Indian Succession Act, 1925. In 2016, The Delhi Minorities Commission (DMC) recommended an amendment to the Act to include the third gender. However, this amendment is still awaited.


The Legal Side

Over the years, there have been many laws and landmark judgements offering a ray of hope on the issue. In 2014, in a path-breaking judgement, the Supreme Court recognised a transgender person’s right to identify themselves as male, female or the third gender. However, with the personal laws still acknowledging only ‘sons’ or ‘daughters’ as successors in the absence of a will, this has done little to improve the transgender community’s inheritance rights.


In 2016, a Bill to protect the right of the transgender community in India was passed in Parliament. However, it came under severe criticism, for failing to address the concerns raised by the community.


Yet another milestone w


as the Transgender Persons (Protection of Rights) Act, 2019. The Transgender Persons (Protection of Rights) Rules, 2020 prohibits any discrimination against the community, including their right to hold or dispose of property. Both these Bills – passed in 2016 and 2019 – failed to address legal issues regarding the community’s civil rights, including the ones to inheritance, and property.


Conclusion



With the law recognising only sons and daughters as legal successors, a transgender person’s right to inheritance is mired in legal tangles, in the absence of a will. The only solution is for them to be mentioned in the will. If you want a transgender person to inherit some or all of your property, make sure that a will is written.


And registering a will is fairly easy, especially now, with EasyInherit at your service. From creating an online portfolio of all your assets and providing legal assistance by a team of specialist lawyers to helping you out with claims submission, EasyInherit is your one-stop solution for all inheritance-related issues.



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