This article has been written by Ashutosh Singh, a student of BA.LLB(Hons) at Amity Law School, Amity University, Kolkata. The article analyses the ambiguity, and gender bias around the intestate succession of a deceased Hindu female in India.

Introduction

A civilization’s worthiness can be judged from the standing that women have in that period. From the Vedic times, the status of women in Indian society has always been considered secondary to that of the men of the society or family. Hindu women have suffered inequality in terms of rights related to their inheritance throughout history. Justice Sujata V. Manohar has said that several legal reforms have been implemented since independence in India, regarding women’s rights which include an equal share of daughters to property, however, the equal status still remains elusive.

In India, the subject of inheritance is governed by the personal laws which govern how the property of a person is inherited. In addition, there are state laws that govern the inheritance of certain assets such as land. It can be seen that many societal issues develop from personal religious laws along with gender inequality. This presence of various religious laws is being described increasingly as legal pluralism. In this context, matters of inheritance of property amongst Hindus, Sikhs, Jains, and Buddhists, are governed by the Hindu Succession Act, 1956(HSA). The confusing and vague status of religious personal laws operates to legitimize the continued denial of equality to women in matters of family law as it generates a space for rules or laws to operate that are not compliant with the constitutional requirements and yet are enforced by the state. Religious personal laws with their ambiguous status serve to legitimize the continued denial by the state of gender equality to women in family law matters, such as in succession rules. This article will throw light on the present status of Hindu women with respect to their inheritance of property and whether Section 15 of the HSA, 1956 needs to be amended to grant gender equality to Hindu women.

Hindu succession laws

The Hindu Succession Act has provisions for property rights and inheritance. The classical law period in India was from 1860-1937 and it brought about one of the first significant changes concerning the laws for females in a Hindu undivided family (HUF). In Hindu Women’s Right to Property Act, 1937, a new law was passed regarding widows stating that no widow could ask for partition, but the widowed mother could receive a part of the share when there was a partition between brothers in the family. This was a huge development regarding the rights for widows in a HUF and it was stated that the right to partition would be given to widowed mothers. This gave the widows the right to step into the shoes of the deceased coparcener, but this right was limited and didn’t give them the right to alienate whenever they wanted to.

Strangely, this move was not accepted by the majority of the population of India, it even received a backlash from certain parts of the community. However, this was the first step towards women getting equal rights as regards properties. In the state laws, the inheritance of farmland by women is not allowed to keep from the fragmentation of land. Also, there is an option such as the first right of refusal, which means that if a legal heir wants to sell their piece of land then the siblings get the first right to purchase that land at the market value.

Moving onto the Hindu Succession Act, 1956, when the amendment was made in the Hindu Women’s Right to Property Act. This was one of the most significant developments concerning female rights to property in a HUF. In the amended Act of 1956, in the class 1 heirs, widow, mother, and daughter were also included which meant that the widow, daughter, and mother would also be first in line to get property in case a partition takes place in a HUF. After the amendment, Section 14 of the 1956 Act would have a retrospective effect on females including widows. The Section states that any property owned by a female Hindu, whether acquired before or after the commencement of the 1956 Act shall be held by her as a full owner. This means that the ownership was not just in a limited capacity. This was a prodigious step that enabled women in getting equal rights with respect to property in India. Section 2 of the Hindu Succession Act 1956 says that this Act applies to anyone who is a Hindu, Jain, Buddhist, Sikh by religion. 

This Section does not apply to the Scheduled tribes covered under the meaning of Article 366(25) of the Indian Constitution. The Hindu Succession (Amendment) Act, 2005 has gone further to grant equal rights and liabilities to women, yet many disputes have arisen about the nature of the amended Act, 2005. The confusion arises whether this law is retrospective in nature or if it has a retrospective effect or not. The other ambiguity is whether the living status of the fathers of the women at the time of the amendment affected the rights of the women. The Hindu Succession (Amendment) Act, 2005 was introduced in India with the aim of amending the previously existing Hindu Succession Act, 1956 to get in compliance with the Constitution of India.

The confusion continues to exist as different benches of the Supreme Court have given conflicting views about these questions in different cases. Relying on such conflicting views by considering them as ‘binding precedents’ is not a way forward and solution to the problem of gender bias. The Union Government brought forth the Hindu Succession (Amendment) Act, 2005 with the understanding of its obligation under the Constitution of India, as well as different international instruments which India has ratified. The amended Act provides for equal treatment of a daughter and a son regarding coparcenary rights. The Sections that were amended were mainly Section 4, Section 6, Section 23, and Section 24 of the HSA, 1956. The doctrine of survivorship was completely abolished and women were given the right to completely dispose of the inherited property at their will without the requirement of permission from their husband or father.

With the amendment of 1956 HSA, there have been progressive amendments in the HSA itself such as:

• Section 6 in the amended Act gives the daughters the right to coparcenary in the property of the Joint Hindu Family by birth, acquiring similar rights and liabilities to that of a son. This also gave the daughter the right to seek partition for her share in the Joint Hindu Property. 
• Deletion of Section 23 of the HSA, 1956 which deprived a female heir from seeking partition of a dwelling house unless she had a male heir to do so for her.
• Section 24 of the HSA, 1956 was rescinded by the amendment as it was based on a morally preposterous and egregious assumption that denied the rights of a widow to inherit her husband’s property upon her re-marriage.

Vineeta Sharma v. Rakesh Sharma (2020)

In August 2020, the Supreme Court of India passed a landmark judgment in this case. The Apex Court stated that the Hindu Succession (Amendment) Act, 2005 will now have a retroactive effect. The 2005 Amendment Act, modified Section 6 of the Act to align it with the Indian Constitution which has provisions for gender equality. 

Facts: In this case, the coparcener had died before the 2005 Amendment Act came into being, and hence, it was held that the daughter (Vineeta Sharma) was not entitled to a share in the coparcenary property as she was not the daughter of a living coparcener. This is irrespective of the father being alive before the Amendment. 

Issues: Whether the 2005 Amendment Act, had considered the daughter to have the same right as that of a son in the coparcenary property? Whether the amended Section 6 of the Act of 2005 is retrospective, prospective or retroactive? 

Judgment: Section 6 of the Act was given the correct interpretation by a 3-judge constitutional bench. The Court based on past judgments and authorities said that joint Hindu family property is unobstructed heritage and the right of partition is absolute which is given to a person by virtue of his/her birth. The Court went on to say that obstructed heritage rights are not by birth. It depends upon the death of the original owner of that separate property. The SC overruled its judgment given in the case of Phulavati vs Prakash (2015) and held that coparcenary rights are transferred from a father to a living daughter. They cannot be transferred from a living coparcener to a living daughter. The Court talking about the effects of the provisions of Section 6 said that these provisions are retroactive in nature. They are neither prospective nor retrospective in nature.

Section 6 being retroactive in nature means that on and after 9th November 2005 it is immaterial whether the father is dead or alive for granting equal rights to the daughter as same as the son. This judgment, one can say that it has ended years of uncertainty over the correct interpretation of Section 6 of the Hindu Succession Act 1956.

Kinds of property under HSA, 1956

According to theHSA Act, 1956 there are two kinds of property:

• Ancestral property– This kind of property should be undivided at the time it is passed down through four generations of the male lineage.
• Self-acquired property– This kind of property is acquired by a person with his earnings and without any assistance of the family funds. The property which is acquired through a ‘will’ is also a self-acquired property.

The Married Women Property Act, 1874

The Married Women Property Act, 1874, is an Act that clearly says that after the passing of this Act, the wages and earnings of any married woman acquired or gained by her shall be deemed to be her separated property if it is gained through:

• Employment 
• Some occupation
• By trade 
• Money or other property acquired by her through any artistic or scientific skill 
• All her savings shall be deemed to be her separated property

The property rights of Hindu women vary depending on their status in the family and her marital status whether she is a daughter who is married/unmarried/deserted, wife or widow, or mother. It also depends on the kind of property, whether the property is hereditary/ ancestral/self-acquired, land or dwelling house, or matrimonial property.

Relevant constitutional provisions ensuring gender equality

The proposition of gender equivalence is enshrined in the Indian Constitution in its Fundamental Rights and Duties, Directive Principles of State Policy, and the Preamble. The Constitution guarantees women equal rights, and it also authorizes the Union to take effective actions against inequality in support of women. The laws of our country, the various schemes, and initiatives have been aimed at benefiting women in various areas within the context of a democratic polity. The Union Government has also recognized many international treaties and agreements on human rights, to ensure equal protection for women. Although these provisions are in place they are in direct conflict with the personal laws in our country. Everyone must know their rights and remedies in case of violation of the same, especially women who have been exploited throughout the years. The Indian Constitution has steered Indian women into a new era. They no doubt enjoy the same rights as men do, get the same opportunities and openings as men have and are in no way inferior to them. Article 15 of the Indian Constitution provides in mandatory terms that no discrimination can be made based on sex, and special provisions can be made in favour of women as they are a vulnerable section of society. The modern Indian legislation also has helped in stabilizing the position of women and giving them economic independence on par with men. 

Article 14 of the Indian Constitution mandates the State to ensure to any individual, equality before the law, or an impartial safeguard of the laws within the country of India. The ‘equality before the law’ is to ensure universal rights that all people, immaterial of their place of birth in the country, ethnicity, gender/race, are alike before the law. On the other hand, ‘equal protection of laws’ guarantees an impartial safeguard of laws for every individual within India.

Article 15(1) mandates the State not to discriminate against any person on the basis of sex, ethnicity, race, caste, or any of them.

Section 15 of HSA, 1956

Rules of female succession are stated under Section 15 and Section 16 of the HSA, 1956. Section 15 of the Hindu Succession Act provides for intestate succession (when one dies without making a will) to a Hindu female intestate’s property. Before ascertaining the share that will go to which legal heirs, it is important to know the origin of the property to know which provisions will apply for the succession of the property. In case the Hindu female has succeeded property and she has children and grandchildren alive then Section 15(1) of the HSA,1956 will be applicable but Section 15(2) is applicable in case there are no children or grandchildren that are alive. If the said property is self-acquired, through will, a gift, stridhan, etc then Section 15(1) will be applicable. 

As per Section 15(1) of the HSA,1956, when a female Hindu dies without preparing a will then the devolution of her property is done to the following as per rules set out in Section 16: 

• Upon the sons and daughters which includes the children of any pre-deceased son or daughter and the husband.
• Upon the heirs who are of the husband.
• Upon the mother and father of the female.
• Also upon the heirs of the father.
• Upon the heirs of the mother of the female.

If the property is succeeded by the female from her father’s family then the devolution of the property is done to the heirs of the father. However, if the property is inherited from her husband’s family then the heirs to the property are the heirs of her father-in-law and this is only when the husband is predeceased already.

Omprakash and Others v. Radhacharan and Others (2009) 

In this case, Smt Narayani Devi was driven out of her matrimonial house once she got widowed just after 3 months of her marriage. She then returned to live in her parental house where she received education and found employment. In 1996, she died intestate and left behind various bank accounts and huge sums of money in her provident fund. Her mother, Ramkishori, had applied for the grant of a succession certificate. The respondents (sons of the sister of Narayani Devi’s deceased husband) also applied for the same.

The Apex Court here assumed that the contention of the husband’s family not lending any support to the deceased was correct but also opined that just because a case is tough, a different interpretation of a statutory provision would not be invoked which is otherwise impermissible. In this case, Narayani’s mother died, and her brothers became the appellants. The issue, in this case, was whether devolution of self-acquired property of the deceased fell within the applicability of Section 15 (1) and Section 15 (2) of the Hindu Marriage Act, 1956. Section 15(1) lays down the ordinary rules of succession. Section 15(2)(a) provides for a non-obstante clause, when the property is devolved upon the deceased from her parents’ side, on her death the same would relate to her parents’ family. The law is silent about the self-acquired property of a woman. Section 15(1) does not make a distinction between self-acquired property and the property which the woman had inherited. The self-acquired property of a female would be her absolute property and not the property which she had inherited from her parents.

The Court relied on HSIDC v. Hari Om Enterprises (2008), Subha B. Nair v. State of Kerala (2008), and Ganga Devi v. District Judge, Nainital & Ors (2008) to express the well-settled principle of law that sympathy and sentiments will not be the only factor in determining the rights of parties which are clear and unambiguous. The Court held that Sub-section 15(1) of the Act would apply and not Sub-section 15(2) thereof. Sub-section 15(1) would apply only in a case where a female Hindu has died intestate. In such a situation, the normal rule of succession as provided for by the statute must prevail. The Court found no merit in the appeal and thereby, the appeal was dismissed.

Here, the Court granted the property to the very people who behaved cruelly with the deceased and did not maintain the relationship when she needed it the most.

Tarabai Dagdu Nitanware and Ors. v. Narayan Keru Nitanware & Anr.(2018)

In the case, the petitioners had challenged the order which the Trial Court had given contending that the respondent cannot have any share in the suit property because of provisions of Section 15(2) (a) of the Hindu Succession Act, 1956 which says that if a female Hindu has inherited any property from her father/mother, and if she doesn’t have any children of her own then it shall be devolved upon the heir of the father. Over here the deceased’s husband who is the respondent had filed a suit for declaration, partition, and injunction in the suit properties that belonged to the deceased. This suit of properties was received by the deceased from her parents.

The respondent had children (not born to the deceased but from the respondent’s second wife) who were claiming a share in the said property. According to the petitioners, the deceased Sundarabai had died without any issues, and the husband’s children had not been born to the deceased, but to the respondent’s second wife (which he admitted himself). So, these children would then have no share in the suit properties. Section 15(2) (a) of the Hindu Succession Act, 1956 is applicable over here as this provision excludes a husband from inheriting the property which was received by a female Hindu from her parents if she does not have any children of her own or has died issueless.

The Trial Court accepted that the suit property which was received by the deceased, from her parents and since the children were not hers, leads to the fact that Sundarabai had died issue-less or without any heirs and in a situation where a son or daughter is absent, her husband can’t inherit her property, but the property will devolve to the legal heirs of her father. Therefore, the husband had no reason to file a suit for partition of Sundarabai’s property. Lastly, the High Court of Bombay held that if a Female Hindu dies childless or without any heirs then the property which was given to her by her parents would be inherited by her parents and will devolve upon the legal heirs of her father and not the husband.

Gender bias and Section 15 of HSA, 1956

Generally, in India and the world over, the woman goes into the family of her husband after marriage and not otherwise. A woman gives up her natal family ties and assumes her husband’s name after marital ties. Hence, intestate succession for Hindus (females) has taken into consideration this ground reality.

In practice, considering the present Hindu Succession Act, the property of the female is not likely ever to devolve on a female Hindu’s parents, as the list of the husband’s heirs is so exhaustive. However, there is no such provision when it comes to the devolution of a Hindu Male’s property. Also, any property that devolved on a female through her husband would be reverted to the husband’s heirs on her demise. However, similar consideration is not given to a property that a woman acquires through the exercise of her skills. It’s so absurd that on the death of a Hindu female, intestate and childless and with no surviving husband the unrelated distant relatives of the husband’s family have a stronger claim to the Hindu female’s property than her own natal family.

It can be said that Section 15 is extremely discriminatory because the female’s property, even if self-acquired, is not inherited by her core heirs. Further, a Hindu female, who could succeed to an estate of another Hindu female as an heir, has a chance only after the distant relatives of the husband of the deceased female who is not even known to her. Therefore, Section 15 should be considered ultra vires of the scheme of the Constitution and hence invalid.

In contrast, if a Hindu Male dies intestate and childless leaving behind no surviving wife, his wife’s relatives cannot stake any claim in her husband’s property. His mother has the highest priority of succession followed by his father and siblings, distant relatives, etc. however, his wife’s natal family has no claim to the property. This is highly discriminatory.

Mamta Dinesh Vakil v. Bansi S. Wadhwa (2012) 

It was argued in the Mamta Dinesh Vakil v. Bansi S. Wadhwa, (2012) case, that the inequality which exists in Section 15(1) of the Act is not based on gender alone, but also on the family ties, and considering this reality the legislature has provided for the heirs of the husband in the woman’s property. The Bombay High Court, in this case, overruled this reason and added that the discrimination in the Section is only based on gender and not on family ties. The Court analyzed the succession scheme/pattern of the male intestates under the HSA,1956 to check the possibility of the argument. It observed that keeping the property within the family was not being taken into the picture because the property of a male Hindu would not be then inherited by his daughters, sister’s sons, and daughters. It thus reasoned that the only basis of this classification was gender. 

Gender equality within other Indian succession laws

The two examples given in the Indian law scheme of devolution are more gender-equitable than Section 8 and 15 of the HSA, 1956. The first one is the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 (GSSNIP) and the second is the Indian Succession Act, 1925 (ISA). Goa had become a part of the Union of India in 1961 after the enactment of HSA. The state of Goa was earlier governed by the Portuguese Civil Code in matters related to personal law and the same statute continued to be applicable even after joining the Union of India. The Civil Code of Goa is based on the Portuguese Civil Code which contains the gender-equitable scheme of devolution. The ISA also governs the testamentary succession for citizens of all religions. This statute also governs the intestate succession for all religions other than Hindus, Muslims, Buddhists, Jains, and Sikhs. In the landmark judgment of Mamta Dinesh Vakil v. Bansi S. Wadhwa (2012), the Bombay High Court said that under the ISA the devolution scheme is more reasonable than the one which is prescribed by Section 8 and 15 of the HSA, 1956, this is in spite of the ISA being older. Over here, there are two pieces of legislation and they are compared to Section 8 and 15 of the HSA, this exercise has a two-fold purpose. The first being the comparison, which can produce very useful insights on how one can reform the HSA. Second, is that it acts as a demonstration for making the schemes of devolution in the HSA gender-neutral which would not be a novel idea. Precedents for these kinds of reforms already exist in India.

Constitutional validity of Section 15 of HSA, 1956

Article 15(1) of the Constitution mandates that there cannot be discrimination against any citizen based solely on religion, race, caste, sex, place of birth, or any of them since it is against the principles of the constitution. But not the one which is based on the mentioned grounds along with some other criteria like social and educational backwardness. There exist different laws for different religions but there cannot exist different laws for different sexes. 

When the Hindu Women’s Property Rights Act was enacted in 1937, the socio-economic conditions of women were different. But today women hold a good share of personal property many times self-acquired by her and her family ties with her in-laws are the same as with her own family owing to the developing concept of nuclear families. The adoption of a century-old law to modern times and its applicability to women today does not make any sense and presents the possibility of being discriminatory and vague.

The term ‘property is not specifically defined by the Hindu Succession Acts but for the purpose of Section 15 of the 1956 Act, it means the property of the deceased Hindu female heritable under the Act. The property here includes both movable and/or immovable properties owned and acquired by a Hindu female. This could be by inheritance, at partition, by gift, or by purchase.

This Section is unable to differentiate between the property inherited by a Hindu female and the self-acquired property of a Hindu female. It only advocates that if the property is inherited from the female’s husband or father-in-law, it would go to her husband’s heirs. In this situation, if the property is inherited from her father or mother, then in the absence of her children, the property should go to the heirs of her father and not go to her husband.

There is a legislative partiality to a Hindu female intestate’s in-laws over her blood relations. The heirs of the husbands are considered more proximate in relation to an issueless Hindu widow when compared to her paternal and maternal heirs and are given preference in the order of succession to her property. The source of acquisition of property of a Hindu female is a deciding factor in the heirs but so is not in the case of a Hindu male. Gross discrimination can be seen as when a married Hindu male dies, his mother receives equal shares in the property along with his widow and children, while in the case of death of a Hindu female, heirs of the husband rank before even her mother.

Section 15 of the Act is unfair as it has failed to consider the equity of the fate of the self-acquired property of a Hindu female dying intestate. Absurdly, it appears that women would always be subjugated and never venture out to earn money because the legislators while framing the legislation did not envision, at that time, that Hindu females would hold self-acquired property.

Sonubai Yeshwant Jadhav v. Bala Govinda Yadav (1983)

The constitutional validity of Section 15 of the HSA, 1956, in question, was brought before the judiciary in this case. It was held that the object of the legislation was to retain property within the joint family upon marriage which brought males and females together, forming one institution. Therefore, it is obvious then that in recognition of that position when the wife’s succession opened, the heirs of the husband were permitted to succeed. This was as a result of the unity of the wife into the husband’s family upon marriage.

The succession laws are not about those who are entitled to the property only, but also about those who should be disentitled. The 21st edition of Principles of Hindu Law (Mulla) also observes that Section 15(2) is founded on the grounds that property must not pass to the individual to whom justice would not require to pass. 

It is ironic that even when the Hindu society is thriving towards gender equality, the succession laws in our country continue to be discriminating, and legislation that discriminates only based on gender should be questioned. 

Conclusion

The state cannot make laws that treat people differently on the basis of the distinctions mentioned in Article 15 of the Constitution of India. The HSA discriminates against Hindu women by advocating different rules for the devolution of property held by men and women. These provisions excessively and unfairly select the husband’s family in the structure of devolution as compared to the woman’s own family, even when the property belongs to the woman or is self-acquired by her. The legislation is a resultant of an era when it was implausible for Indian women to own and acquire property. However, these biases continue to be committed upon Hindu women in India even today. 

The laws of inheritance in countries like the US and France are written in a gender-neutral language. They do not use words like sons and daughters but instead use gender-neutral words like parents, children, and spouses. Using gender-neutral words can create a legal system where a person is entitled to inheritance irrespective of their gender. This way it is not gender-specific and the existing biases against women can be amended. A similar approach can be taken in India and the gender references in the inheritance laws can be excluded from the statutes and replaced with gender-neutral language. With these changes, an equal and unbiased legal system can be created for all people of the country regardless of their gender.

Silence and self-denial on the part of the Indian women of being subject to unequal property rights reinforce and further perpetuates injustice. Hindu women must be made aware of their property rights through legal literacy campaigns and social awareness programs. This is a necessary step so that they may fight for what is rightfully theirs. Collaborative efforts on the part of the government, non-governmental organizations, the public, and women themselves should be taken up to bring change in the mindset and attitude of people for promoting equal rights based on humanity for achieving gender equality. 

References

1. https://indiankanoon.org/doc/634161/
2. http://mospi.nic.in/sites/default/files/reports_and_publication/cso_social_statices_division/Constitutional&Legal_Rights.pdf
3. https://geographyandyou.com/legislations-for-enabling-gender-justice-in-india/
4. https://vikaspedia.in/social-welfare/women-and-child-development/women-development-1/meera-didi-se-poocho/property-richts-of-women-in-india-and-maintenance
5. https://citizenmatters.in/interview-on-womens-legal-share-in-property-21580
6. https://www.thehindu.com/opinion/editorial/right-by-birth-the-hindu-editorial-on-daughters-and-hindu-succession-act/article32347299.ece
7. http://www.womenlawsindia.com/legal-awareness/women-rights-in-india/
8. MULLA-HINDU LAW UPDATED 21ST ED 2013 HB 21st Edition (English, Hardcover, Mulla D F)

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