The enactment of the Hindu Succession Act, 1956 is an epoch-making event in the history of Hindu law in this country under which absolute property rights, for the first time, were conferred on a female and also an equal share of inheritance was assured to her. However, since even the modern Hindu succession laws also came out of the rigid rules of male dominated succession rules of Manusmriti and adopted Vijnaneshwara's interpretation of the extended concept of Stridhan, they were essentially biased.
Even though the section 14 of the Hindu Succession Act, 1956 converted women's estate to Stridhan, it was not flawless. The issue of female inheritance has been several times questioned due to the clause 2’s limitation. The Act gave the rights to the unmarried daughters to claim inheritance from the property. Under section 15 of the Hindu Succession Act, 1956, the daughter-in-law inherits only in case she is a widow. The scheme of devolution of property of male and female dying intestate are very different. The earlier section 23 of the 1956 Act provided male heirs with the absolute right to seek partition, while making right of female heir contingent on the right of male heirs.
Now and then the question about the discriminatory nature of the succession laws has been raised but the judgements have been of much avail in the war for gender parity. In one of the cases where the constitutional validity of the provisions providing for two separate schemes of succession for male and female intestates was challenged as violative of article 14 and article 15, the court said that the constitution does not posit totally unguided non-classified equality, as equal protection under the laws is not an abstract proposition. Every now and then it has been held that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties, which are otherwise clear and unambiguous under the Hindu Succession Act.
As Justice K. Rama Swamy have noted, “Half of the Indian population too are woman. Women have always been discriminated against and have suffered and are suffering discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude, and yet they have been subjected to all equities indignities, inequality and discrimination.” The Hindu Succession (Amended) Act 2005 has brought a revolutionary change in the Hindu succession law by making the women Karta of the joint family property but still gender party can’t be said to be achieved in entirety. Though the legal position of women in India is better than that prevailing in many countries, still the law relating to women's property rights in India requires drastic alteration.
PROPERTY RIGHTS IN LIGHT OF GENDER DISCRIMINATIONS
With the Hindu Succession Act, 1956 the concept of women's estate was finally discarded and the meaning of Stridhan expanded by including landed property along with other movable and immovable properties. The definition of the property enumerated in subsection 1 of section 14 of the Act includes all the types of property that were enumerated in the ancient text of Vijnaneshwar which mentions about nine types of Stridhan. However, even this Act did not confer women any full ownership over property as subsection 2 of section 14 retained the power of any person or the court to give only a limited estate to a woman.
The section 14 has had a retrospective or backward-looking glance. It converts an existing women's estate into Stridhan or absolute estate only when two conditions are fulfilled: 1) ownership of the property must vest in her and it is not limited ownership; and 2) she must be in possession of the estate when the Act came into force. The act also keeps silence in cases of a woman's deceased husband's property. The Hindu succession Act, enacted in 1956 provides for two different schemes of succession for male and female Hindu intestates. While for men, his heirs and relatives came, in case of women, the husband’s heirs were given preference in respect with her own parents as per section 15. One discrimination against male is that the mother is kept in class I heirs but the father is kept in class II heirs.
In all the succession laws that apply to the disparate religious communities, it is only the Hindus and the Parsis that permit relations by marriage to inherit the property of the deceased, otherwise the general rule of inheritance goes in favour of blood relations only. Secondly, under Hindu law, even a very remote cousin or collateral would be preferred to her own blood relations like her parents and brothers and sisters. No other succession law in India including Muslim law gives statutory preference to the in-laws over her own blood relatives. This is devoid of any rationality and logic and the confirmation of the same by the judiciary is extremely unfortunate.
This notion that the law should preserve property in a Hindu joint family is based on two very extremely outdated assumptions. The first being that the joint family is the most relevant and important unit of societal organisation among Hindus and the second one being that women don’t have the capacity to acquire and manage their property. But if seen in context of the present time, both of these assumptions seen outdated with today’s reality. According to the Census, the median family size in urban areas has dropped below four. This is part of a larger trend of reduction in family size over the years and shows just how irrelevant joint families have become. Even the Hindu Code Bills committee have expressed a similar opinion in its 1944 report. BN Rau, the chair of the committee and who later played a pivotal role in drafting the Constitution of India noted that the institution of a Hindu joint family is outdated and should be abolished.
In the case of Om Prakash v. Radha Charan , the Supreme Court has held that the in-laws of a married woman have preference over her natal relations in succeeding to her hard earned property despite the fact that they had earlier kicked her out of the matrimonial home. Ironically the claim of her mother and then the brother was negativated by the Supreme Court on the ground that as per the provision of the Hindu Succession Act, 1956, it is the heirs of the husband who have a legal right to inherit the property of an issueless married Hindu woman and her parents cannot inherit in their presence.
CHANGES BROUGHT BY THE AMENDMENTS TO THE HINDU SUCCESSION ACT, 1956
The constant researches in the field of succession rights of Hindu women in India made some of the state governments develop unbiased succession rules. The Hindu Succession (Andhra Pradesh) Amendment Act made a remarkable development. The law postulated that the rights of a daughter are equal to that of a son in every circumstance. It was founded that the Mitakshara system is violative of the fundamental right of equality. The States of Tamil Nadu, Maharashtra and Kerala have also amended the law by including women as members of the coparceners. The main hurdle in achieving gender equalities in case of succession amongst the Hindus remains the difference in the two schools of law which govern different parts of the country. The 174th Law Commission took a revolutionary step by recommending changes in the ancient succession laws of Mitakhshara and Dayabhaga and thereby amending the existing act.
The Hindu Succession (Amended) Act, 2005 bestows the Hindu women right to become a coparcener in the ancestral property just like their male counterparts. Under Section 6 of the Hindu Succession (Amended) Act, 2005 daughters get equal rights and liabilities of the ancestral properties. The age-old tradition of investing the whole share of the property of a Hindu who died intestate to his male heirs only has come to an end ultimately. Thus, the effect of the 2005 amendment is two-fold:
Women became active members of the co-parcenary property and enjoyed the right of partition of the ancestral dwelling house. In other words, they became the Karta, which was limited to the male heirs only before the promulgation of the new Act.
Women became entitled to enjoy the right to property fully, no matter whether she inherits the property from her parents or her in laws.
Women therefore could now manage the property as the male heirs were doing since ages. But historically, such power of women is not new. The Dharma Shastra says that “alienation can be done by the wife of an absent, or the widow of a dead manager, of family property belonging to numerous minors, unable to enter into contractual relationships in their own persons, yet reasonable for maintaining dependants and carrying the various burdens of the family”. Women were considered as just managers in case of distress and never had the power to manage the property by themselves for their own purposes. By the virtue of this amended Act, women were now elevated to the position of full property owners.
Section 23 limited the right of a female in regards to the dwelling house to a right of residence only. Although female beneficiaries got ownership of the dwelling house left by the deceased in equality with the males, they weren’t allowed to have the house partitioned on their own. Such a right was not available to female, but only to the male beneficiaries. The purpose of section 23 was said to protect the rights of the sons of the deceased who will act as the providers in the joint family. It was believed that if a female had the right to claim partition of the dwelling house, it could be disruptive to the families living in it. Section 23 was repealed by the 2005 amendment and it is now possible for a female to claim partition of the dwelling house.
DISCREPANCIES PRESENT IN THE HINDU SUCCESSION ACT, 1956
The 2005 amendment to the Hindu Succession Act, 1956 elevated more descendants, especially females, to the class I heirs in respect of the property left behind by a Hindu male who dies intestate, i.e., without a will.
Earlier 12 heirs were mentioned the category of class I under the schedule to the act. However, by the 2005 amendment four more heirs were added to this list. They are:8
• Son of a predeceased daughter of a pre-deceased daughter
• Daughter of a predeceased daughter of a pre-deceased daughter
• Daughter of a predeceased son of a pre-deceased daughter
• Daughter of a predeceased daughter of a pre-deceased son
No changes were made to the list of class II heirs and Class II heirs under this schedule. The category II of the Class II heirs includes Son’s Daughter’s Daughter. The class III heirs include Daughter's son's son, Daughter's son's daughter and Daughter's daughter's daughter.
So, the discrepancy that arises is that four heirs from Class II and Class III are same as that of Class I. Thus, there is a confusion as to where these four heirs are to be counted. This discrepancy is probably so because these heirs were elevated to Class I after the amendment, but were not deleted from the list of Class II and class III heirs. These deletions are implied for practical implication. Thus the 2005 amendment brought certain discrepancies which haven’t been removed from the formal Act yet.
EXTENT TO WHICH PRESENT ACT WITH ALL ITS AMENDMENTS IS SUCCESSFUL IN BRINGING GENDER PARITY
Earlier, general rule of classic Hindu law was that the females were even excluded from inheriting the separate property of a deceased Hindu male. The first relief for women in India was through the provisions of the Hindu Women's Rights to Property Act, which added the respective widows of a son, predeceased son, and widow of the deceased himself, to the list of heirs who can inherit from the deceased. This Act was repealed by the Hindu Succession Act, 1956. Once forward looking things is that In terms of the Schedule to section 8 of the Hindu Succession Act, females are now included in the list of heirs.
Even though Section 14 of the Hindu Succession Act, 1956 converted women's estate to Stridhan, it wasn’t free from flaws. There were several other clauses which continued the age old discrimination of male and female heirs. The Act of 1956 is meant for unmarried daughters to claim inheritance of the property. Under Section 15 of the Hindu Succession Act (1956), the daughter-in-law inherits only when she is a widow. Hence, she can’t inherit her due share in her father-in-law's property when her husband is alive.
In the case of Kewal Krishan Mayor v. Kailash Chand Mayor the court thus decided that there is no flaw in the factual operation of the Section. For the purpose of the widow's heir in question, the inherited property from her father-in-law would be devolved upon the heirs of her husband after her death. In case she remarries and her second husband also dies and she inherits property from her father-in-law from the second marriage, the said inherited property from the second marriage would be devolved upon the heirs of the second husband and not on the heirs of the first marriage.
The 174th Report of Law Commission have also analysed the property rights of women, commenting upon the gender discrimination inherent in the provisions of the Act. The report focused primarily on ensuring equal coparcenary and succession rights for males and females. The report further states: “Legislation that on the face of it discriminates between a male and a female must be made gender neutral.” Subsequently, the commission itself pointed this out in 2018 in the Consultation Paper on Reform of Family Law, that the problem with the Act is that it attempts to bring gender-neutral coparcenary provisions within an inherently gender-discriminatory framework. However, the 174th Report of Law Commission of India did bring attention to the fact that gender discrimination still does exist in the act.
The 2005 amendment and the subsequent Supreme Court’s rulings are significant steps towards removing gender-based discrimination in the Act. However, the provisions of this which govern the devolution of property of a deceased woman are still firmly rooted in outdated assumptions. While the 2005 amendment granted equal rights and liabilities to women, many disputes arose pertaining to the Hindu Succession (Amendment) Act, 2005. There was a question raised as to whether this law is retrospective in nature or does it have a retrospective effect or not? And also, whether the rights of women are dependent on the living status of their fathers at the time of amendment or not? Different benches of the Supreme Court have given conflicting views upon these questions in various cases.
In the case of case of Prakash v. Phulavati it was held that if the coparcener, i.e. the father, has died prior to 9th September, 2005, the date on which the amendment came into force, his daughter will have no inheritance right to be entitled in the coparcenary property. So, the benefit of such amendment will only be given to “living daughters of living coparceners” on 9th September 2005. But in the case of Danamma @Suman Surpur v. Amar Singh it was observed that the father need not necessarily be alive on the enactment of the Hindu Succession (Amendment) Act, 2005 for daughters to become a coparcener. It was held that daughters could claim their coparcenary property even if their fathers were dead before the enactment of the Hindu Succession (Amendment) Act, 2005.
The 2020 landmark judgement of Vineeta Sharma v. Rakesh Sharma finally settled this issue. The Supreme Court disagreed with the Prakash v. Phulavati case and gave judgement in consonance with the Danamma v. Amar Singh case. The court observed that the father need not necessarily be alive on the enactment of the Hindu Succession (Amendment) Act, 2005 for daughters to become a coparcener. Daughters could claim their coparcenary property even if the father were dead before the enactment of the Hindu Succession (Amendment) Act, 2005. The daughters were held to have their right in the ancestral property since birth as they are a coparcener since birth in the same manner as a son.
The constitutional validity of the provisions providing for two separate schemes of succession for male and female intestates was challenged as violative of article 14 and article 15 and therefore ultra-vires of the guarantee of equal treatment before the Bombay High court where the court upholding the constitutional validity of the impugned provision, observed that the constitution does not posit totally unguided non-classified equality, as equal protection under the laws is not an abstract proposition. Thus, the present act still has certain flaws. In respect to discriminations in the act, it has been held that the classification is founded on intelligible differentia and has rational relation to the object the legislation.
Giving a death blow to the ancient practice of preventing women from inheriting landed property from male heirs. Based on the Hindu Code Bill, the Hindu Succession Law, 1956 was one the most radical step in the light of women empowerment and has indeed, with all its amendments, made huge step towards goal. However, being made out in the shadows of the patriarchal dictates, it is far from perfect. The act provides different schemes for the two genders and the present act also has certain discrepancies which hasn’t been removed so far.
Given the interpretation that the legislature intended the conservation of the property in the family from where it was received, it would be extremely difficult to take a stand in the cases where a Hindu female dies and leaves behind her share in the coparcenary property. The primary principle on which succession laws can also said to be its utilisation for the benefit of this by the family members. The Hindu Succession Act, 1956, takes note of the practical reality but only in case of Hindu male intestates. It is important that there not be merely amend the law but also implementation of laws and this is the duty of all the three organs collectively to ensure this. These discrepancies should also be removed to make it error free.
In all patriarchal societies and not merely Hindu society, upon marriage, husband and wife form an exclusive union and a woman is regarded as a member of the family of the husband, yet none of the family laws strip a married woman of her true identity and treat her as a foreigner for the parental family the way it is done under Hindu law. For all other religious communities where she inherits both from her father and from her husband, her property is never classified in light of the source of the acquisition of her property and there is also no interposition of her husband's heirs in preference to her own parents.
Though the legal position of women in India is comparatively better than that prevailing in many countries, still the law relating to women's property rights in India requires drastic alteration. The most important is that the process of regulation of law has to be strengthened. The law must be provided with sufficient teeth and there must be genuine apprehension in the mind of every Hindu that non-compliance of succession laws would be visited with exemplary punishments. The law-makers and judiciary are both working for this. If the gender parity in society is to be attained, it should start with recognising her rights in her own household.
By Swati Singh