Why Rules for Female Succession Under Hindu Law Need to Change

A three-judge bench of the Supreme Court headed by Justice DY Chandrachud is hearing a petition challenging the provisions dealing with female succession under the Hindu Succession Act, 1956, particularly Sections 15 and 16. The petition challenges the constitutionality of the provisions for being “highly discriminatory and violating the scheme of the Constitution”. While the case was filed four years ago in 2018, an amendment bill suggesting changes rectifying the same had been already introduced in Parliament in 2015, but there was no discussion on it, leading to the consequent lapse of the bill.

The Hindu Succession Act provides the rules for the succession of property of a Hindu female who dies intestate. It provides a hierarchy according to which the property is to devolve. The highest and simultaneous preference is for the children of the woman, children of the predeceased children and her husband. It is followed by the heirs of the husband (in the second category), heirs of the father (third category) and lastly, the heirs of the mother (fourth-category heirs) as subsequent classes.

The hierarchy of succession makes it clear that the heirs of the father are preferred over the heirs of the mother. This hierarchy is the rule in the entire Hindu Succession Act. However, it is not the most problematic part of the provisions. The heirs of the husband also take precedence over a woman’s parents when it comes to inheritance. It means that if a choice is to be made between a woman’s brother and her husband’s sister’s son, the property shall devolve to the latter.

Such provisions reflect the inequity and gender discrimination rampant in the succession law for Hindus. It leads to inequity, which is seen, for example, in the Supreme Court’s 2009 judgment in Om Prakash v Radhacharan. In this case, a Hindu woman, Narayani Devi, was thrown out of her matrimonial house within three months of her marriage after her husband, Dindayal Sharma, died. She lived in her parental home, got educated and started working. After working for around thirty years, she died intestate, leaving behind sizeable savings, including a Provident Fund account and several bank accounts. The Supreme Court noted that when she died in 1976, she had self-acquired properties, not acquired from her parents. It was also clear the woman’s in-laws had not contributed to her education or other needs during her lifetime.

After Narayani Devi’s death, her mother, followed by her brothers after the mother died, claimed rights to her properties and assets. Her deceased husband’s nephews made the same claims. Unfortunately, the Supreme Court was bound to accept the nephew’s claim, for he had precedence in law over the woman’s family members. The court also observed that the succession law was silent on the self-acquired properties of a woman who dies intestate. Therefore, based on the order of precedence in the law, all the properties Narayani Devi owned would devolve to her husband’s heirs, not her brothers or other heirs.

While the Supreme Court could have used its inherent powers to do complete justice in this case under Article 142 of the Constitution, that would not have been a permanent solution to an inequity written into law. Amending the provisions is what is needed to do justice and ensure equity in all such instances.

In 2015, the current Deputy Chief Minister of Haryana, Dushyant Chautala, introduced the Hindu Succession (Amendment) Bill as a private member’s bill. The bill attempted to correct these wrongs by changing the hierarchy of heirs. Under it, the highest preference was to be given to only the children of the woman. The bill put the husband in the second category of heirs, along with the parents of the woman. Further, the third category was to be shared by the heirs of the father and the husband equally, followed by the mother’s heirs. While this was a fair attempt, it still keeps property within the male lineage.

Another rule of female succession is that if a woman inherits property from her father or mother, it shall go back to them in case the woman dies intestate and without issue. That is, if a woman dies without a will and does not have children, her properties return to “the source”. If she had inherited the property from either of her parents, it would return to the heirs of her father—but not her mother’s heirs. Else, her properties would go to her husband’s heirs if she dies issueless and does not leave behind a will. This provision reflects the patriarchy of succession laws as both—property inherited from the father and the mother—devolve to the heirs of only the father. The mother’s lineage is completely left out.

The bill sought to rectify this by providing that the property inherited from the father shall return to the heirs of the father, while the property inherited by the mother shall return to the heirs of the mother. The bill added a rule that property acquired by a woman deserted by her husband shall devolve not to heirs of the husband but of the father and the mother. But this provision was neither discussed nor passed.

India is one of the first countries to provide property rights to women. The scope of women’s rights to property has been expanding continually. Initially, women only had possessory rights, which grew to ownership rights and then equal rights in the Hindu Undivided Family properties. The 2005 amendment in the Hindu Succession Act giving women equal rights as men in joint Hindu family properties was groundbreaking in the battle for justice for women. However, there is a long way to go in achieving gender justice in property matters. Irrespective of the Supreme Court’s decision on the constitutionality of the provision, there is a dire need for the legislature to amend the Hindu Succession Act, 1956, in the interest of justice and equity. India can achieve gender equality only through substantive equality in every sphere, including the social, economic, political and legal.

The author is a student at National Law University, Jodhpur. The views are personal.