In India, the Hindu Succession Act, of 1956 is the inheritance law of Hindus. This act provides a different scheme in the case of males and females. Due to the provisions of this act, if a Hindu female dies intestate, the husband’s family members enjoy a much bigger claim than the female’s family members over her property. In a landmark case, Mamta Dinesh Vakil vs Bansi Wadhwa, the Bombay High Court held that such discrimination are solely based on sex and are violative of Article 15(1). In this article, these differential provisions shall be discussed in detail and a comprehensive plan to amend the Act shall be provided, in order to ensure gender neutrality
Sections 8 and 15 of the Hindu Succession Act provide rules for the devolution of self-acquired property of males and females dying intestate respectively. An instance of discrimination is seen in the case of Om Prakash v. Radhacharan. In this case, Narayani Devi’s husband died three months after their marriage, and she went back to her matrimonial home. Over 40 years passed and with the initial support of her parents, she raised significant property. However, after her death, based on a plain reading of the Hindu Succession Act, the Court held that her personal property shall be inherited by distant relatives of the husband, and not by closest relatives of Narayani. In the schemes of devolution of property belonging to a woman, the husband’s relatives have a higher priority than the woman’s parents and siblings. However, no relatives of the wife find a mention in the scheme relating to the devolution of property belonging to a man. This lack of reciprocity is explicitly against Articles 14 and 15(1) of the Constitution which prohibit discrimination based on sex. Further, even when a woman’s family stands to inherit the property, her father’s relatives are preferred over her mother’s relatives. Thus, clearly, discrimination is present. This provision is based on the notion of joint ownership of property in a Hindu family and thus is from a patriarchal viewpoint. A woman’s natal family does not get to inherit any property after his death.
Section 15(2) however provides for two situations, in case of any property the woman inherited intestate from her father or mother, the property devolves upon heirs of father, and in case of any property inherited intestate from husband or father-in-law, the property devolves upon heirs of the father. What happens here is that a property inherited by a male continues to flow through his family line, but it does not involve it flowing to the natal heirs of his wife after his death. This is unlike the case for a Hindu female (who dies childless), whose property is inherited from her husband or husband’s family would devolve to the husband’s heirs. This fundamental differentiation is criticised by the 174th of the Law Commission as well as by various judgements. In effect, this reduces a woman’s access to property inherited in her lifetime.
Constitutionality of Discriminatory Provisions
Under this heading, two cases are of importance that need to be discussed. In the case of Sonubhai Yeshwant Jadhav v. Bala Govind Yadav, it was held that this discrimination is constitutional, while in the case of Mamta Dinesh Vakil v. Bansi S. Wadhwa, this discrimination was held to be unconstitutional. In the latter case, before the Bombay High Court, the validity of sections 8 and 15 of the Hindu Succession Act was challenged on the grounds of preference given to the father’s relatives over the mother’s relatives under Section 8. In addition, Section 15 was challenged as the wife’s siblings claimed a share in her property against brother in-law’s claim. The principal argument for the discriminatory provisions is that the institutional integrity of the family is based on patriarchy and that continuous succession to property in favour of the family must be maintained. However, the Court found that in sub-classes V to IX under Class II, gender discrimination persisted. It further held that the codification of old Hindu Law has not kept in pace with gender equality. Section 15 reduces females’ right to property to a mere life interest, and this goes against the legislative intent of Section 14.
It is a common understanding that property must not devolve upon an individual whom justice demands it should not pass. This is the principle of Equity and Good Conscience. Devolution of property to heirs of the husband even if the wife was thrown out of the matrimonial household immediately after the husband’s death (Om Prakash v. Radhacharan) clearly goes against principles of equity and good conscience. Such individuals must be disqualified from inheriting property. Further, continuing with the discriminatory provisions leads to violation of Articles 2, 5, 15 and 16 of CEDAW.
Towards Gender Neutrality
The Bombay High Court opined that the rules relating to intestate succession in the Indian Succession Act should act as an inspiration in amending the HSA. Even the civil code of Goa- GSSNIP which is based on the Portuguese Civil Code contains a gender-equitable scheme of devolution. The ISA makes use of gender-neutral terms like “ascendents”, “descendants”, and “kindred”, instead of wife/ husband, father/ mother and agnates/ cognates. It has the effect of treating the lineage through male and female lines as equal. Thus, ISA acts as a perfect example of a gender-neutral law in this regard. The 174th Report of the Law Commission of India 000 analysed the property rights of women, commenting upon gender discrimination inherent in the provisions of the HSA. The report stated that legislation which discriminates between a male and a female must be made gender-neutral. The 207th Report of Law Commission of India proposed to amend Section 15 of HSA through the insertion of Section 15(2)(C) that states that if a female Hindu dies intestate, and in the absence of husband and children, the heirs of husband and natal family would inherit simultaneously.
However, a normative assessment of possible disruption in the family should not have been given preference over equality between men and women under Articles 14 and 15(1) of the Constitution. In addition, the report fails to give a definition of “self-acquired property” and the new framework propagates discrimination as it has only added a new order for devolution for self-acquired property under Section 15(2)(c) while continuing the discriminatory scheme under Section 15(1). While this allows for somewhat equal treatment to the heirs of the husband and father and those of the mother, the treatment is still not the same as the husband’s self-acquired property. Further, this clause suggested by LCI prefers the heirs of a woman’s father over the heirs of her mother.
The Hindu Succession (Amendment) Bill, 2013 proposed parental heirs be given preference with respect to inheritance of self-acquired property in case a woman dies intestate and is not survived by her husband or children. The following scheme was introduced:
- Firstly, upon the mother and father of the female;
- Secondly, upon the heirs of father of the female;
- Thirdly, upon the heirs of mother of the female
- And fourthly, upon the heirs of husband of the female.
It overcame some limitations of the LCI in the sense that it defined self-acquired property. Yet, it had some shortcomings like it did not cover situations like the abandonment of women and giving of primacy to the heirs of the father over those of the mother. This Bill lapsed with the end of the 15th Lok Sabha, without any discussions.
Next in line came the Hindu Succession (Amendment) Bill, 2015. It places the mother, father and husband in the same category. However, it still prefers the husband’s and father’s heirs over the mother’s heirs. There were some shortcomings as this bill again failed to provide the necessary definitions and there was a presence of second-order discrimination against the heirs of the mother. Another attempt was made in the Consultation Paper on Reform of Family Law, 2018. Herein, it was suggested that the “heirs of husband” be used to refer to the husband’s parents and the husband’s parents inherit the property along with the deceased’s parents. And if none of them survives, the property shall devolve upon heirs of mother and father. The scheme suggested by the National Commission for Women (NCW), in its Review of Laws and Legislative Measures Affecting Women, talks about the devolution of property upon Class 1 heirs, followed by Class II, Agnates and Cognates respectively.
How to Reform the HSA
There are various considerations that must be kept in mind while reforming the HSA. Firstly, the scheme for devolution for male and female intestates must be identical, with equality of treatment between the natal families of men and women. Nextly, there must be recognition of equality in lineage among males and females. The degree of closeness to the intestate must define the devolution irrespective of any gender bias. This should be the only differentiator between different classes of heirs. Minimal amendments must be used to achieve this ideal of gender neutrality.
In order to achieve this, Section 8 can be made applicable to both men and women. References to gender should entirely be removed from the Schedules that mentions different classes of heirs. Next, agnates and cognates must be treated equally eligible for succession. The sections like Sections 10 and 11 can be repealed entirely as Section 8 is made applicable to women as well.
It can be concluded that the scheme of devolution of property of female intestate violates articles 14 and 15(1) of the Constitution of India. It also goes against the principles of equity, justice and good conscience. Hence, there is a need to amend the HSA to make it compatible with the current socio-economic position of both the sexes. While attempts have been made to amend the HSA in the form of Bills, GSSNIP and ISA, a more comprehensive approach to amend the HSA has been presented by this article. This approach shall dissolve the differences between men and female about intestate succession of the property and lead to a gender – neutral law relating to succession laws.