2. Hindu inheritance laws in India

Hindu inheritance in India is guided by Dharamshastras, pre-independence laws, and post-independence laws made by the Government of India. There is a trajectory of inheritance defined especially for women which is followed through the two schools, Mitakshara and Dayabhaga (Singh, Reference Singh2022, p. 426). In Bengal and Assam, the Dayabhaga School of law is widely practised, while the Mitakshara School of law is mainly followed in the northern parts of India. The Mitakshara School only grants coparcenaryFootnote ⁷ rights to male members of the joint family, and a son is entitled to an interest in the ancestral property by birth. However, in the Dayabhaga School of law, a son acquires such rights only after his father’s death. Both schools of law limit the rights of women, as although they are considered members of the joint family, they cannot be coparceners and cannot ask for partition themselves (Singh, Reference Singh2022, p. 426).

Despite the existence of two schools governing inheritance of ancestral property, the principles of formal equality are given in the Constitution of India whereby, all individuals have the fundamental right to be treated equally under Article 14 (Constitution of India, 1950, p. 37), discrimination of citizens based on religion, race, caste, sex, or place of birth is prohibited by Article 15 (Constitution of India, 1950, pp. 37–38), which further gives the right to the State to extend provisions to help groups which have been historically disadvantaged, especially women and children. Part IV of the Constitution provides directives to the State to establish substantive equality; however, these are not mandatory for the State to apply. In light of this, where women possess formal equality, and there is an attempt to provide substantive equality, the subject of women’s property rights is not touched upon in the Constitution.

It is with the passing of the Hindu Succession Act of 1956 that the subject came to the forefront, with specific efforts made to offer equality to women in matters of inheritance. It is the first law for the Hindu Joint Family (HJF) concerning the inheritance of an ancestral or acquired property for various classes of women and follows the Mitakshara School (Singh, Reference Singh2022, p. 426). Multiple provisions are given in the Hindu Succession Act (HSA), 1956, which enhance the rights of women in relation to property. According to Section 6, after the commencement of the Act, if there is a death of a male Hindu, then the principle of Mitakshara coparcenary applies even to the surviving female (mother, widow, and daughter), and she would not be excluded from inheriting the property. This makes a woman an equal coparcenary along with the male member of the family. According to Section 14, a Hindu woman can be an absolute owner and have the right to dispel the property according to her own wishes (read with Section 23). If the Hindu woman converts to any other religion, she will still not lose the right to inheritance, according to Section 26 (read with Sections 24, 25, and 28). Many more women could be a part of the succession, such as Class I of the schedule now includes many more women as heirs: daughter; widow; mother; daughter of a predeceased son; daughter of a predeceased daughter; widow of a predeceased son; daughter of a predeceased son of a predeceased son; widow of a predeceased son of a predeceased son. Additionally, the principle of simultaneous heirs is introduced, whereby there could be simultaneous heirs from Class I and Class II of the schedule at the time of intestateFootnote ⁸ death.

However, the HSA, 1956, had its drawbacks as well. Women were not coparcenary according to Mitakshara, and thus except Section 6 of the Act, possessed no other rights of being the coparcenary. The Act did not give rights to women on dwelling houses. In case of partition of the dwelling, male coparceners could reserve the right of not giving women any part and just their entitlement to reside in the house. Wife’s right to the joint family property, in case of partition between father and son, is contingent upon her having sons. If she has daughters, then she is deprived of that right (Pandey and Gautam, Reference Pandey and Gautam2022, p. 6). Further, agricultural land being a state subject meant that in some Land Reform acts, like the U.P. Zamindari, Abolition and Land Reforms Act, 1951, only male heirs had the right to agricultural land and not the female heirs. The HSA, 1956, fails to include agricultural land while considering inheritance for both male and female heirs (Pandey and Gautam, Reference Pandey and Gautam2022, p. 6).

Keeping in view that gender inequality was growing over the years and the problems with inheritance even after HSA, 1956, an amendment was brought to the original Act in 2005. The new Act is called the Hindu Succession Amendment Act (HSAA), 2005. Accordingly, HSAA, 2005 tried to correct the inequalities still remaining in the HSA, 1956. Changes were made in the amendment in order to achieve higher equality between males and females. Omission of Section 4(2) from HSA, 1956 to give rights to women in inheriting agricultural property and not only ancestral land. Any daughter, married or unmarried, is a member of her father’s Hindu Undivided Family (HUF) and might become its “karta” (manager) (Rathore, Reference Rathore2021, p. 6). Following the amendment of Section 6, in Section 3 of HSAA, 2005, the daughter of a coparcener also has the same rights and liabilities as the son, as she is a coparcener since birth. When the Hindu Head dies, post the commencement of the HSAA, 2005, she will receive the same share as the son, and she can have the same claim to partition as the son in HUF, whereby she can dispose of the property on her own accord (Anupriya and Chakraborty, Reference Anupriya and Chakraborty2020, p. 112). With the death of the female coparcener, the property will be distributed amongst her children. Coparcenary property might be ancestral or self-acquired. The coparceners share ancestral property equally, while the self-acquired property is managed by the owner according to their will (Anupriya and Chakraborty, Reference Anupriya and Chakraborty2020, p. 112). Coparcenary members can sell their shares to third parties. The coparcenary’s surviving members can pre-empt such a transaction. The remaining members enjoy the “right of first refusal” over the land, preventing outsiders from entering (Rathore, Reference Rathore2021, p. 7). Section 23 was removed because it prevented female heirs from partitioning until male heirs did (Saubhagya, 2022, p. 493). Section 24 was omitted, which was discriminatory to three groups of women: the widow of the predeceased son, the widow of the predeceased son of the predeceased son, and the widow of the brother, who could not inherit property if she had remarried when the property became available for succession (Pandey and Gautam, Reference Pandey and Gautam2022, p. 8). In Section 30 of HSA, 1956, the words “disposed by him” were substituted with “disposed by him or by her,” making it gender-neutral according to the objective of the HSAA, 2005.

Thus, it is evident that in the pursuit of achieving gender equality, at least in the domain of inheritance of ancestral property, an amendment to the HSA, 1956, was done in 2005. Accordingly, now daughters, married or unmarried, could be the coparceners to the ancestral property. However, the claim to self-acquired property of the Hindu Head is still on the determination of their will for distribution. Notwithstanding, the amendment gives women the right to inherit agricultural land; the revenue codes of most states do not recognise women’s right to agricultural land in Punjab, Haryana, Himachal Pradesh, and Jammu and Kashmir. Agriculture being a state subject, revenue codes have precedence over the HSA, 1956 or HSAA, 2005 (Pandey and Gautam, Reference Pandey and Gautam2022, p. 9). Further, the retention of Article 15 of HSA, 1956 which declares that in case of the demise of a Hindu female, the property is succeeded by sons, daughter, husband, heirs of husband, mother and father, heirs of father, and lastly on heirs of mother, implies that the only women who are recognised as daughter, wife, or mother, i.e. in relation to man can inherit the property. The idea of exclusion of daughter-in-law is pointing towards gender disparity as a result of not having a blood relation with a man in the family (Majumdar, Reference Majumdar2010, p. 405). When the Hindu woman dies without a child, the sister or mother cannot be the heir, indicating the anomaly in the amendment (Khare, Reference Khare2015).

Despite these shortcomings, HSAA, 2005 is hailed as empowering women by increasing their bargaining power. The rights of women have grown, and there have been expectations as well as some concrete gains in terms of increased inheritance and education of women due to the amendment. However, before I delve into the analysis on the empowerment of women, in the next section, I will examine the Coasean and Hobbesian solutions and the importance of transaction costs, bargaining power being a substantial part of it. I will also discuss the concept of covert coercion, as I introduce and envision it.

3. Maximising gains in exchange: Mechanism of covert coercion

According to the normative Coasean framework as envisioned by Cooter (Reference Cooter, Eatwell, Milgate and Newman1989), as long as free exchange exists, the initial entitlement of the property does not matter. The sheer existence of the free exchange would lead to an efficient Pareto Optimal outcome. Hence, the law’s vagueness, as in the case of HSAA, Section 4(2) despite being deleted, leaves it open for the states to apply their own codes pertaining to the inheritance of agricultural land or whether HSAA 2005 is applicable prospectively or retrospectively, the courts hold different opinions. The court held that provisions of HSAA 2005 would apply to daughters born on or after 9 September 2005 in Ms. Vaishali Satish Ganorkar & Anr. v Mr. Satish Keshaorao Ganorkar & Ors., Footnote ⁹ although the same was dismissed in Shri Badrinarayan Shankar Bhandari & Ors. v Omprakash Shankar, Footnote ¹⁰ where the court held that the amendment would apply irrespective of the date of birth of coparceners. This ambiguity can serve as an encumbrance in this free exchange, which needs to be amended to ensure free transactions. This implies that transaction costs, which include time and effort to complete a transaction, should be zero (Cooter, Reference Cooter, Eatwell, Milgate and Newman1989, p. 65). Transaction costs are the costs of maintaining property rights, whereby if transaction costs are very high, assigning and maintaining property rights would be impossible. This would lead to zero property rights and thus a loss in trade (Usher, Reference Usher1998, as cited in Allen [Reference Allen2015], p. 386). This is a narrow conception of the transaction cost, whereby high time and effort lead to high transaction cost, thereby deterring the free exchange and market and thus, even when the initial legal entitlements are clearly defined, it may not lead to an efficient market solution. The normative Coase theorem implies that if one of the negotiating parties is in lesser numbers, then the cost of negotiating and enforcing an agreement with them would be lower, thereby leading to an efficient equilibrium in the allocation of entitlements (Cooter, Reference Cooter, Eatwell, Milgate and Newman1989, p. 66). Conversely, in the widely known example of railroad versus farmers (Cooter, Reference Cooter, Eatwell, Milgate and Newman1989, p. 66), it is demonstrated that bargaining costs or negotiating costs will increase if one party or both parties are large in number. This increase in bargaining costs would result in positive transaction costs when property rights are allocated, which would still lead to the second-best efficient outcome (Allen, Reference Allen2015, p. 386). Also, protecting, capturing, negotiating, information, and bargaining are all attempts to improve one’s own property rights and thus are a part of transaction costs (Libecap, Reference Libecap1986; Furubotn and Richter, Reference Furubotn and Richter2000; North, Reference North1990). Thus, the mere presence and achievement of property rights will result in wealth maximisation (even if not efficient allocation), and that is possible by minimising transaction costs, not necessarily zero transaction costs.

It is interesting to observe that despite the violation of the assumption of perfect competition when the negotiation happens between a few parties, it may lead to a successful negotiation since the transaction cost would be low (Cooter, Reference Cooter, Eatwell, Milgate and Newman1989, p. 68). However, this may not necessarily be always true. Though bargaining amongst a smaller number of people may not have a cost of communication or a cost of reinforcement of agreement, yet there might be a strategic base, where the main concern for the negotiator could be a division of surplus. According to the normative Coase theorem, the existence of self-interest on the part of the negotiator could result in the breakdown of negotiation, and cooperation may not be sustained (Cooter, Reference Cooter, Eatwell, Milgate and Newman1989, p. 68). On the other hand, the normative Hobbes theorem (Cooter, Reference Cooter1982, p. 18) believes in solving the problem of division of surplus by coercion rather than cooperation, which takes away from the basic premise of initial allocation of entitlements as aspired for efficiency, by Coase. This theorem emphasises assigning property rights to those who value them the most, thereby abating harm from the failure of agreements. Since breakdowns in negotiations are bound to occur due to inefficient allocation of legal entitlements, which can be pre-empted or rectified by the emergence of private agreements amongst the highest bidding parties, leading to an efficient solution (Hoffman and Spitzer, Reference Hoffman and Spitzer1982, p. 97). Furthermore, a weak Coase theorem will always be true, implying that in the absence of transaction costs, the entitlements do not change the efficiency of resource allocation (Landsburg, Reference Landsburg2014, p. 429). However, human conduct is unpredictable, and individuals are diverse in negotiations; some may value wealth, others may value relations, and others may lack clarity of thought, counter to the Coasean worldview (Stigler, Reference Stigler1989, p. 631). Significantly, most people are under-informed, thereby unable to reach the best possible agreements. Further, the presence of uncertainty, risk aversion, and divisibility of the resource in itself may not be enough to guarantee to lead to a situation of Pareto optimality and thus the initial assignment of property rights would have to be defined fully and clearly in order to eliminate the prospect of uncertainty (Schiff, Reference Schiff1995, p. 324). As a result, most parties would rather resort to a compromised solution.

Additionally, even if the property rights are clear, transaction costs are zero, and negotiators behave rationally, there is a possibility that agreements will be inefficient (Hahnel and Sheeran, Reference Hahnel and Sheeran2009, p. 216). This is due to the existence of perverse incentives which have been ignored in analysis by others, whereby there is a critical difference between the traditional assumption of perfect knowledge and complete information. Bargaining under imperfect information will not yield an efficient outcome due to the rise of perverse incentives (Hahnel and Sheeran, Reference Hahnel and Sheeran2009, p. 229). Not knowing the true situation of the opponent, along with the existence of multiple victims, increases perverse incentives, thereby resulting in inefficient equilibrium despite low transaction costs, rational behaviour, and perfect information. The sheer existence of deception by one party to another, leads to inefficient outcomes (Hahnel and Sheeran, Reference Hahnel and Sheeran2009, p. 229).

Whenever there are many members in one of the transacting parties, it is believed that it would lead to the problems of holdout or free riding. Contrastingly, even with complete information, these problems may not arise because of the existence of perverse incentives. Furthermore, even when deception may not exist, the lack of collectivisation may not result in a hold out at all, resulting in either a normative Coasean or a Hobbesian solution, or a combination of which I refer to as covert coercion.

From the above discussion, we can understand that it is not necessary to achieve zero transaction costs for efficiency, as the second-best solution is possible even with positive transaction costs as long as the aim is to minimise them. Additionally, efficiency is possible when negotiating with either a lesser number of parties or, in other words, parties with less bargaining power, as in the case of women in India. However, there can be a breakdown in cooperation and thus efficiency in conditions when negotiators are either self-interested or people may be uncertain, under-informed, or risk-averse. Interestingly, even when property rights are clearly defined, transaction costs are zero, and rationality persists, the mere presence of deception can lead to inefficiency. Yet, efficiency can still be achieved, so long as cooperation and maximisation of gains in trade through that cooperation can happen. The absence of collectivisation may actually result in cooperation (Coasean sense) or covert coercion, as mentioned above. I call it covert coercion and not coercion in the Hobbesian sense, as this is a coercion not happening through legal assignment of property rights but instead is neatly/manipulatively embedded in societal expectations, cultural conformity, intra-household relations, norms, and oppression manifesting itself by the creation of uncertainty, risk aversion, deception, etc. for the vulnerable party. Thus, while the outcome may appear inefficient (Hahnel and Sheeran, Reference Hahnel and Sheeran2009), it may be the second-best efficient solution (Allen, Reference Allen1991), albeit achieved through covert coercion rather than negotiation amongst equals. In the following section, I will discuss this cooperation as a result of covert coercion in the context of women in India. I will address how women’s negotiating power has improved because of clearly defined property rights in their favour, which has resulted in certain gains but may still be insufficient for either minimising transaction costs or having a cooperative, efficient allocative solution among counterparts. However, it should be noted that possessing bargaining power, which includes having property rights, is critical for maximising the creation of wealth, allocation aside.

4. Rights and bargaining power vs. lived reality and covert coercion: Achievement of allocative efficiency?

As discussed above, higher bargaining power should lead to the maximisation of wealth as conceived by the Coasean solution. However, it is given that the reallocation of these property rights will cause positive or higher transaction costs due to the rise of information costs, bargaining costs, and protection from capture. This will still result in the second-best efficient solution, whereby wealth can still be maximised, allocation aside (Allen, Reference Allen1991, p. 11). Following the HSA, 1956 and HSAA, 2005, which aim at building gender equality by allocating property rights towards women, it is important to note that this form of property right is on the ancestral property. While in the HSAA 2005, agricultural property/land is also part of this allocation, agriculture is a State subject, and most states do not recognise women as parties to the agriculture land in their revenue codes, like Punjab, Haryana, Himachal Pradesh, Uttar Pradesh (which now recognises inheritance for unmarried daughters, but not for married daughters) (Deo and Mitchell, Reference Deo and Mitchell2021), Uttarakhand, and Delhi (Deo and Dubey, Reference Deo and Dubey2019), leading to skewness in implementation of the inheritance law. On the other hand, states like Kerala, Andhra Pradesh, Tamil Nadu, Karnataka, and Maharashtra, which have historically had favourable social norms, legislative reforms, and higher literacy rates among women, demonstrate better implementation of HSAA, 2005 (Agarwal and Naik, Reference Agarwal and Naik2024). However, even when engaging only with the allocation of ancestral property to women through these acts and amendments, we can intuitively predict that they should lead to an increase in the inheritance of women, thereby increasing their bargaining power. This may result in human and social capital gains in terms of education, employment, and establishing their own lives without being dependent on the man in the Hindu joint family. Numerous studies based on quantitative as well as qualitative analysis have been undertaken to assess the impact of this amendment in inheritance laws. Some studies point to the desired impact, while others analyse the actual impact and yet others try to analyse the reasons for the dismal impact, if any.

As opposed to the structured bargaining models, it is important to engage with the bargaining approach to recognise that women take support of civil society groups and the State to enhance their bargaining power, given the existing rigid social structure and norms (Agarwal, Reference Agarwal1997, p. 2). Perception of women not being party to parental care once they are married, and the norm of exclusion of women who marry outside a close kinship network, thereby renders them unable to take care of ageing parents or manage property, diminishes their bargaining power (Agarwal, Reference Agarwal1997, p. 17). However, the outcome of the intra-household exchange, whether cooperatingFootnote ¹¹ or non-cooperating,Footnote ¹² would depend on which solution would make household members better off. While dropping the assumption of common preferences in a Nash cooperation game, households try to bargain over pooled income keeping their fallback options (also termed as “threat point”Footnote ¹³ [Agarwal, Reference Agarwal1997, p. 4]) such as wealth from parents, income from other sources (not wage), and the legal support for marriage and divorce (McElroy and Horney, Reference McElroy and Horney1981, as cited in Agarwal [Reference Agarwal1997], p. 4). This bargain has an underlying conflict, the result of which rests on the party that has maximum bargaining power. The fallback option is the deciding factor in the elevation of bargaining power (Agarwal, Reference Agarwal1997, p. 6). If cooperation fails, then non-cooperative models come into play, whereby non-cooperation will be used as a threat point for cooperative games (McElroy and Horney, Reference McElroy and Horney1981, as cited in Agarwal [Reference Agarwal1997], p. 4). However, all the game-theoretic models, whether unitary, cooperative, non-cooperative, or collective, will operate in the same households at different points in time (Katz, Reference Katz1997). The success or failure of the interaction would depend on the members’ bargaining power. This, in turn, would depend on ownership of economic assets, resources, social norms, perceptions, legal legitimacy, community recognition, and the implicit distinction in bargaining power between different parties in a household and the decision maker in a household (Agarwal, Reference Agarwal1997, p. 7). Additionally, cooperation and conflict exist simultaneously in intra-household bargaining. Women have agency, which they may use to enhance personal gains or family gains (Sen, Reference Sen1987). In the case of the latter, they end up sacrificing for the perceived interest of the household, and that is the way they exercise agency (Sen, Reference Sen1987). Women’s bargaining positions can be improved through education, financial independence, and property rights (Sen, Reference Sen1987). Thus, the more substantial the fallback option, the more effective the bargaining power is. Ownership of private property is key to determining the strength of the fallback option, and this ownership is a product of the legal structure of a country, access and knowledge of the law, education, social norms and legitimacy, support from kin and community (Agarwal, Reference Agarwal1997, pp. 12–13). It is then worth understanding that possession of private property, which boosts bargaining power, is in itself a result of the bargain happening intra-household and with the external environment, including other households, the community, and the State. Further, it is also important to investigate if there is enough awareness amongst women about their inheritance rights, and even when there is, whether they are able to exercise it.

Interestingly, studies regarding the increase in inheritance post-amendments in the Hindu Succession Acts in various Indian states have pointed out that there has been an increase in human and social capital gains post the amendment. For instance, the REDS (Rural Economic and Development Survey, 2006, as cited in Deininger, Goyal and Nagarajan [Reference Deininger, Goyal and Nagarajan2012]) data was studied by using the difference in difference (DID) method for analysis of intra-household variation to estimate the impact of HSAA, 1994, in the given states, on the inheritance of women, age at marriage, and educational attainment for the states of Maharashtra and Karnataka, where HSA was amended in 1994 for three generations: Head’s generation, Head’s children, and Head’s grandchildren (Deininger, Goyal and Nagarajan, Reference Deininger, Goyal and Nagarajan2012). Elementary education of children aged 6 years or less was compared with education of children aged 14 years or older in 1994, with the hypothesis that if parents complied with the amendment, they would at the same time reduce these human capital gains for women to restrict access for them. The findings pointed out that the probability of women inheriting the land increased to 22% post-amendment as opposed to a much lesser probability pre-1994. It is pertinent to note that this increase in probability was majorly visible in the cases of households where the Head had less amount of land. Further, the marriageable age of women increased significantly by 0.54 years. Women whose fathers died post the amendment and were more educated were observed to be correlated to the increase in the marriage age of women. The education attainment of girls also increased by 0.3 years of elementary schooling post-amendment. The authors contemplate two reasons for the increase in elementary education. First, ownership of property and education may be seen by parents as complementary to each other, and second, the change in inheritance law would have empowered women to ask for education. However, none of these causes were explored in depth by the authors.

Another study utilising the IHDS (India Human Development Survey, 2004–05, as cited in Bose and Das [Reference Bose and Das2017]) data and conducting a control and treatment group on 16 states (sample size of 9270 households) with different years of HSA amendment, highlighted that women’s education post the amendment increased by 0.48 years (Bose and Das, Reference Bose and Das2017). However, there was a decline in the education of children of mothers affected by reforms, especially younger boys. The authors justify this by invoking the Census of India report on the rising opportunity cost of education. However, for the girls’ increase in education, they offer an explanation in terms of more education being linked to girls’ safety.

On the other hand, another measured analysis using the REDS (Rural Economic and Development Survey, 99, as cited in Roy [Reference Roy2015]) data set determined that to circumvent the law, fathers started gifting land to their sons (Roy, Reference Roy2015). Daughters were typically considered “guests,” and parting with ancestral property meant declining wealth gains, which otherwise would have occurred by giving land to sons. The compensation to daughters in order to bypass the law was to offer them traditional dowries once they attained the marriageable age. However, women who were already married at the time of the reforms did not receive any such compensation. The other way to compensate for the disinheritance is by the provision of elementary education. Thus, there is a trade-off between dowry and education, and a shift towards education, as educated women might be more desirable in the marriage market (Roy, Reference Roy2015).

From the above studies, it can be discerned that the amendment may have led to higher bargaining power for women, better human capital gains in terms of education, and increased age of marriage. The parents would still disinherit their daughters by compensating them through education and/or dowry. Though there have been gains from the HSAA in various Indian states, there seems to be a disconnect between data analysis and the lived reality of women in India. There have been multiple studies that highlight the everyday problems, including legal issues faced by women, which prevent not only the implementation of the law but also lead to the social exclusion of women trying to enhance their bargaining powers through legal channels.

A study in Haryana highlights the way social norms interact with the legal implementation in barring women from getting their shares (Chowdhry, Reference Chowdhry1997). HSA, 1956 is viewed as a “dual inheritance” for women, as a daughter and as a widow, which the social structure of patriarchy is insistent on deterring (Chowdhry, Reference Chowdhry1997, p. 289). The dowry given to the daughter’s husband, termed as “kanyadan,”Footnote ¹⁴ cloaked as a gift to the daughter at the time of her marriage, is considered as the completion of all responsibilities by the Head and brothers towards the daughter of the family. Daughter is the honour, and brothers are the protectors of that honour, despite the daughter also being “paraya dhan”Footnote ¹⁵ (Chowdhry, Reference Chowdhry1997, pp. 291–293). On the one hand, the brothers feel that inheritance laws are unnecessary barriers to their relations with their sisters, who require maintenance till the time they are married off. On the other hand, women themselves uphold the custom of dowry as opposed to inheritance, to establish themselves in their conjugal homes (Dube, Reference Dube1988, as cited in Chowdhry, Reference Chowdhry1997, p. 304). This not only legitimises the custom of dowry but also the idea that daughters need not be coparceners to ancestral properties. Inheritance being the right and dowry being a gift (or obligation of brothers), the preference for the latter prevails not only for the men of the household but also the daughters. Women are often asked to sign over their share in the property to their brothers, and in court, they are asked, “If they are giving it up willingly?”, to which the answer is “yes.”

Another study conducted in Delhi from 1991 to 1993, highlights that the idea of gifting daughters when they get married and now should have a claim on affinal property, deters the natal family from including daughters in inheritance on the one hand, and daughters asking for their share, on the other (Basu, Reference Basu2001, p. 133). Interestingly, it is not the case that women do not understand the value of owning property and are not aware of their rights (Basu, Reference Basu2001, pp. 159, 168, 190). Despite that, they prefer and are complicit in disinheritance to keep familiar comfort and symbolic love intact. Further, the social stigma of representing a rapacious woman who will fight with her natal family over property dissuades women from doing so (Basu, Reference Basu2001, p. 223).

Recent studies in Andhra Pradesh, Bihar, and Madhya Pradesh, with a sample of 1440 women and 360 men, reveal that inheritance post the amendment has shown a dismal trend as opposed to the expectation (Sircar and Pal, Reference Sircar and Pal2014). In their study, they found that only 13 percent of the interviewed women either inherited land or expected to own it (Sircar and Pal, Reference Sircar and Pal2014, p. 11). Despite women desired to own land for the benefits of having financial security, very few wanted to inherit it (Sircar and Pal, Reference Sircar and Pal2014, p. 12). So much is the stigma and ostracism from the community, that it discourages women to inherit land on the one hand, and instead renounce it, on the other. In the study, it is found that 61% of the women interviewed had given no-objection certificates for the land share to be given to their brothers instead of them (Sircar and Pal, Reference Sircar and Pal2014, p. 13). Additionally, even when women inherited land, they did not get an equal share. Accordingly, the women of landowning families should have received 11.88 decimals post HSAA, 2005, yet ended up receiving only 0.93 decimals of land (Sircar and Pal, Reference Sircar and Pal2014, pp. 13, 19).

In yet another study, based on interviews of 504 women in 19 villages, in two states, Andhra Pradesh and Bihar, it is found that only 12% respondents were aware of the law and only 19% wanted to inherit the land due to the fear of being ostracised from the community and losing the bond with their brothers (Kelkar, Reference Kelkar2014, p. 55). Further, the village heads, who work as heads of the community, themselves did not recognise women’s rights to inherit land (Kelkar, Reference Kelkar2014, p. 56).

From the studies discussed above, it is evident that the change in the law (HSA, 1956; HSAA, 2005) itself would increase bargaining power, with the increase in the probability of inheritance, increase in education and marriageable age. Yet, the actual experience of women who are already oppressed informs us that either they remain unaware of their right to inheritance, or they choose not to enforce that right in a large number of instances. They themselves wish to follow the social customs and have probably internalised the concept of paraya dhan, Footnote ¹⁶ whereby they end up signing the land to their brothers as compensation for the protection they received while growing up or will receive if the marriage fails and the dowry which helped them establish in their affinal family. This is what I refer to as covert coercion, whereby it is important to observe the rising transaction costs due to rising bargaining power. Yet, the bargaining powers are not necessarily exercised to maintain family comfort and symbolic love. Most often, women forgo their claims in order to maintain cordial familial relationships (Agarwal and Naik, Reference Agarwal and Naik2024, p. 5). It is interesting to observe that post-HSAA, out-of-court settlements (Baruah et al., Reference Baruah, Naik, Prakash, Mandyam, Narasappa and Tirumalai2018, as cited in Agarwal and Naik [Reference Agarwal and Naik2024], p. 3) are preferred, which are gendered, and at other times, in 78% of the cases, women are opposed by immediate family members in the court leading to further deterioration in their family bond (Agarwal and Naik, Reference Agarwal and Naik2024, p. 7). Even when studies point to increasing gains in education due to increased bargaining power, there seems to be something amiss in terms of the recognition that it is only elementary education that has gone up, and there is enough literature to point to the reasons for it to be making the daughters worthy of marriage (Deininger, Goyal and Nagarajan, Reference Deininger, Goyal and Nagarajan2012; Bose and Das, Reference Bose and Das2017). There is not a denial of the positive impacts of the change in the law whereby it is expected that the existing social structure would change; however, there needs to be a recognition of the deep-rooted patriarchy, which results in covert coercion happening with adorned cloaks of honour, love, stigma, etc. Thus, the second-best solution in terms of maximisation of gains may have happened, yet nothing can be said about allocative efficiency. Paretian allocation is questionable, as it operates in contradiction with the provision of rights/liberty (Sen, Reference Sen1970 as cited in Basu [Reference Basu2003], p. 222). Further, applying a Kaldor-Hicks criterion of allocation, unfortunately, paves the way for the argument for a dowry because of the existence of internalised patriarchy, leads to the forgoing of property rights by women (part of covert coercion), again clouds the idea of achievement of allocative efficiency, as this kind of compensation clearly harms the society rather than achieving the goal of empowerment of women. Dowry and education remained compensation for daughters pre- and post-HSAA instead of the actual transfer of immovable property to them, which would challenge the social norms (Agarwal and Naik, Reference Agarwal and Naik2024, pp. 3, 5).

Another important aspect of internalised patriarchy is that most economists consider the family as a “black box” whereby it is seen as a single unit rather than as a dynamic entity with different actors and a diverse set of interests (Pollak, Reference Pollak1985, p. 581). In the next section, I explore how the family is a complex unit that is difficult to navigate through the provisions of that unit, especially for women. The complexity is layered with the emotional and affective costs that women must bear along with the existing social costs.

5. Family and emotions: Navigating further costs

Family is considered to be a unit of governance with having advantages of “incentives, altruism, monitoring and loyalty” (Pollak, Reference Pollak1985, p. 585). The incentive effect works for the family members in the form of long-term gains from each other, as opposed to short-term benefits, as it is a multi-period setting. The concern of family members goes beyond their own lifetime, and they are much more bothered about the maximisation of wealth for their children and grandchildren. There are monitoring and informational advantages in a family whereby undesirable behaviour is punished through ostracism and expulsion. Further, informational advantages exist in the form of intergenerational transmission, especially in the case of joint families. Opportunistic behaviour is constrained by the presence of altruism and loyalty in a family. In all these components, especially loyalty, social norms, and standards play a primary enforcement mechanism for the operation of a dynamic family unit. Any conflict, indiscipline, separation, divorce, or old age is offered protection through the family. It is needless to say that with protection, there is also the existence of threat of expulsion that can bind the family members together.

Three models of distribution within families have been discussed by economists. First one being Samuelson’s family consensus model (Pollak, Reference Pollak1985, p. 598). According to this model, the preferences of family members are interrelated and thus end up forming a social welfare function due to consensus. Unfortunately, this also ends up considering the family as one unit, ignoring the diversity among the members. Second model is Becker’s altruist model that focuses on the presence of an altruistic member in a family who influences the rest of the selfish members to behave altruistically (Pollak, Reference Pollak1985, p. 599). Remarkably, this would imply that this one altruistic member has dictatorial powers; otherwise, it is impossible for everyone to adapt to an altruist function. Third type of models to understand the family are bargaining models (Pollak, Reference Pollak1985, p. 599), the kinds I have referred to earlier as well. These are cooperative games, whereby all members have conflicting preferences which act as a “threat point” to determine a cooperative outcome in a multi-period setting (Agarwal, Reference Agarwal1997, p. 4). The transaction cost approach in bargaining models emphasises that each member possesses their own wealth, income, and earning power, which determines the allocation between members. The idea of minimising transaction costs, especially within a dynamic family, is even more difficult to envision as opposed to a firm, as in a family, complete contracts cannot be formulated. In a family with “bounded rationality” and asymmetric information, even in the long run, it is impossible to formulate a complete contract; thus, the possibility of positive and high transaction costs always exists. And even though a second-best solution is possible, will that result from negotiation between equal counterparts, or will it be dependent on Becker’s altruistic Head of the family, is another way to look at the covert coercion that I have emphasised upon.

Furthermore, it is important to realise that transaction costs may not necessarily be monetary and may not just be in the form of either protecting a property or enhancing bargaining power. These could also be psychological and social costs, especially for women, which they will try to minimise to maximise gains, which may not be in terms of inheritance but in terms of reduction of uncertainty. The idea of facing expulsion or ostracism when there is a conflict or when someone, especially if a woman under the system of patriarchy, does not follow the norm (Sen, Reference Sen1987), can inflict psychological costs. Despite the influx of psychology literature in decision-making processes, the role of emotions and psychological costs are scarcely analysed in the context of families, especially when it is about women’s empowerment.

In my discussion above, I have observed that there are claims about the increased bargaining power of women post HSAA, 2005. Further, some studies have concluded that the chances of increased inheritance of women (whose Head possess very less land) have gone up by 22% (Deininger, Goyal and Nagarajan, Reference Deininger, Goyal and Nagarajan2012), there are gains for women in terms of increased elementary education, and there is a marginal increase in the age of marriage.

Unfortunately, most of the claims and studies have isolated the effect of reallocation of property from the existence of patriarchy as a structure and how that deters the expectation of an increase in bargaining power of women. Literature has not delved into the emotional costs that women may have to incur in case of a dispute with their brothers over ancestral property. As pointed out above, a family provides protection to members, especially women who are married and may later be separated or divorced. Women try to accommodate the uncertainty of their future in marriage into their own utility function, which prevents them from claiming their rightful ownership of property. The emotional bond that women form with their family, and especially brothers, may lead them to sign over the inheritance to their brothers. The way emotions work in the process of decision-making, especially when it is a complex decision about a dynamic family unit, warrants examination. Integral emotions guide decision-making by choosing a safer option than a risky outcome (Lerner, Li, Valdesolo and Kassam, Reference Lerner, Li, Valdesolo and Kassam2015, p. 803). We can understand this in the context of women, who would prefer a status quo of disinheritance and obtaining dowry and education rather than having a dispute in the family, which may be detrimental to their survival in the future. Interestingly, under the Appraisal-Tendency Framework, fear as an emotion leads to feelings of low certainty and less individual control over events (Lerner and Keltner, Reference Lerner and Keltner2000). This causes an individual to perceive high risk and believe negative events in the future are unpredictable and are situationally dependent. In case of women, this fear is an uncertain existence, either when they remain single, or when they get divorced or widowed in the future, which is all situational and not under their control. This influences the woman’s content of thought, driving her to choose a secure option in terms of having family loyalty.

Furthermore, emotions play a very important role in interpersonal communication, especially within the family. Emotions can facilitate mutual understanding of each other’s beliefs, objectives, and behaviour. They can monitor by creating carrots or sticks for others’ behaviour. And they can generate mutually beneficial feelings (Keltner and Haidt, Reference Keltner and Haidt1999). These functions of emotions inform us about how the cooperative game outcome may turn out. When anger from the father or brother may act as a threat point whereby a sister or a daughter would be left to understand their emotion and aspire for a mutually beneficial outcome, they would then, in most likelihood, try to take compensation in terms of dowry or education rather than property.

The role of psychological costs in terms of perpetual uncertainty and social costs, manifesting in the form of ostracism, might be extremely higher than transactional costs, understood in a conventional manner. Emotional well-being, along with following social norms and culture, may result in lesser cognitive dissonance for women, and thus, they may themselves legitimise covert coercion, thereby requiring a rethink of the welfare criteria concerned with allocation. The provision of rights may be contrary to the utilitarianFootnote ¹⁷ Pareto Principle and may not lead to efficiency (Basu, Reference Basu2003, p. 222). However, this makes us question whether the Pareto Principle is the one we should be using to understand efficiency, or rather, think of another criterion, like the social welfare criterion (Sen, Reference Sen1970; Sen, Reference Sen1999).