THE SAGA OF CONTINUOUS DISCRIMINATION: FEMALE INTESTATE SUCCESSION UNDER HINDU SUCCESSION ACT
This article is written by Vishesh Gupta and Prerna Mayea, fourth-year law student at Institute of Law, Nirma University.
The enactment of the Hindu Succession Act in 1956 made a revolution as it gave Hindu females the right of absolute ownership in the property. However, the Act still had the remains of patriarchal notions which were reflected in the fact that daughters were not treated as coparceners under Section 6 and their rights in the dwelling house under Section 23, depended upon the discretion of the Hindu male heir. In 2005, the Act was amended to provide coparcenary rights to daughters and Section 23 stood repealed. However, Section 15 which continues to discriminate between men and women solely based on sex is still in force. Through the article, the authors have highlighted the inherent bias against women in Section 15 and analysed the constitutionality of this provision, urging the need for reform.
BACKGROUND OF SECTION 15
Section 15 of the Hindu Succession Act, 1956 (hereinafter referred to as The Act) describes the mode and manner of succession in the case of female Hindus who die intestate. Section 15(1) states that the deceased’s intestate property devolves firstly upon the deceased’s children and her husband, secondly upon the husband’s heirs, thirdly upon the deceased’s parents, thereafter upon the father heirs, and lastly upon the mother’s heirs.
Section 15(2) is an exception to this general scheme which states that in case the property has devolved upon the female from her parent’s side, it will go back to her father’s heir and if the property has devolved from her husband or her father-in-law, it will go back to the heirs of husband. However, this subsection only applies when the wife has no children. This sub-section is also referred to as source-based succession as the property devolves back to its source.
The Supreme Court (SC) has done a literal interpretation of this provision in most cases which have led to injustice for Hindu women. An example of this is the judgment of Om Prakash v. Radhacharan. In this case, the self-acquired property of a deceased widow was in dispute who was subjected to cruelty by her in-laws and driven out of the matrimonial house. The court ruled that the property being self-acquired and not inherited from her parents will go to her husband’s heirs as per Section 15. The court further stated that even though no support had been ever extended to the widow by her in-laws, but only by her own parents, it is a well-settled principle that a different interpretation of the legislation cannot be done on sentimental grounds.
Considering that Section 15 of the Act is discriminatory on the grounds of sex, the court should have adopted a beneficial interpretation rather than a strict interpretation.
SOURCES OF DISCRIMINATION IN SECTION 15
Section 8, which describes the manner of succession in cases of Hindu males dying intestate, when compared with Section 15 of the Act, shows inherent discrimination in devolution schemes of Hindu male and female dying intestate. In the case of the wife’s property, the husband’s heirs have priority over the wife’s parents and siblings.
However, in contrast to this, the manner of devolution u/s 8 of the Act, does not even give a share to the wife’s relative when the husband dies. This is in contradiction to the justification for the discriminatory manner of devolution under the Act which was to ensure that the property went back to its source. This reciprocity is unfair for a woman.
Further, Section 15(2) has also been termed discriminatory in the fact that a wife’s inherited property only devolves to her father’s heir even when the property was inherited by the wife from her mother. This apparent discrimination has been acknowledged in the 174th Report of Law Commission of India, where it is stated that Section 15(2) of the Act reflects a bias towards male Hindus.
(UN) CONSTITUTIONALITY OF SECTION 15
The constitutionality of this section has been challenged on the ground of violating Article 14 and 15 of the Indian Constitution which guarantees the right to equality and prohibition of discrimination based on sex respectively.
In Sonubhai Yeshwant Jadhav v. Bala Govinda Yadav, section 15(2) of the Act was under scrutiny. The single-judge bench of Bombay High Court ruled that Section 15 of the Act was constitutional because such discrimination was well reasoned and justified. The court stated that such provision ensured that the property is traced back to its source and kept within the family thus, saving its institutional integrity. Furthermore, the court reasoned that after marriage, a female merges with her husband’s family, and therefore the interest devolves upon the heirs of the husband. Such a scheme of succession ensures the strengthening of family ties.
In contrast, the single-judge bench of Bombay High Court in Mamta Dinesh Vakil v. Bansi S. Wadhwa, acknowledged the presence of gender discrimination in u/s 15(1) and declared it to be unconstitutional. The judge observed that the codification of the old Hindu law has not kept pace with the constitutional mandate of gender equality. It compared the Act to different succession laws and observed that the Indian Succession Act, 1925 (ISA) which was enacted prior to the Act, was more gender-neutral because the manner of devolution of interest laid in the ISA is identical for man and woman.
AMENDMENTS PROPOSED UNDER 207th LAW COMMISSION REPORT, 2008
The law commission report proposed to amend Section 15 of the Act considering the changed socio-economic circumstances where more and more women are acquiring property through their own efforts. The report suggested that the self-acquired property of a Hindu female dying intestate must devolve upon both her husband’s and father’s heirs equally and simultaneously. It opined that this would strike a balance between the competing interests of her families.
Although the recommendations of the Law Commission are well-intentioned, they fail to address the issue at hand. They have concluded that the social ethos if excluded completely will lead to social and family tensions. Thus, the possible disruption of the family unit has been given more weight than fundamental rights guaranteed under Article 14 and 15(1) of the Indian Constitution. The report continues to state that a married woman becomes a member of her husband’s family and is expected to treat her father’s and husband’s heirs equally whereas no such parallel obligations have been placed on a married man towards his wife’s family.
FALLACIES IN OM PRAKASH’S JUDGMENT
It has been stated that the judgement of Om Prakash’s case illustrates the worst-case scenario from the interpretation of Section 15. The court opted for a strict interpretation rather than opting for a beneficial interpretation.
The people who were involved in committing cruelty against the wife and who didn’t contribute to her self-acquired property were the ones who received her property just because they were heirs of the husband. This is in direct contradiction to the reasoning of the Joint Committee behind enacting such a provision which stated that “property should not devolve to a person to whom justice demand it should not pass.” Further, it also contradicts the assumption that the deceased would never intend their wrongdoer to inherit any of their property.
When a strict interpretation of law leads to gross injustice, liberal and purposive interpretation becomes essential. The Supreme Court under Article 142 of the Indian Constitution has the power to do complete justice. SC in Om Prakash’s case failed to do complete justice which led to violation of fundamental rights under Article 14 and 15(1).
Further, in cases where parents of the married woman are maintained out of her self-acquired property during her lifetime, the same parents would suddenly be left destitute upon her daughter's death, as the property will be taken up by the husband's heirs.
Also, this provision violates the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) which directs that the state parties have the responsibility to take measures to eliminate discrimination from the existing legislation and customs. India being a signatory to CEDAW must honour these obligations.
Section 15 was drafted without taking into consideration that women can acquire their own property. It was argued that most women did not have a paid job at the time of the drafting of this law and therefore, the notion of women acquiring property on their own skills was considered a rarity. The law needs to evolve with the societal evolution and bring a parity between devolution rules for male and female. Section 14 of the Act gave females absolute ownership of property for the first time. The Act was amended in 2005 to give daughters a status equal to that of sons in matters of coparcenary rights by birth. These amendments have, therefore, addressed the gender equality aspect. With an improvement in gender equality now, the legislature must consider making necessary amendments as early as possible or else we will possibly witness more judgements of the likes of Om Prakash’s case.