INTRODUCTION
Ever since section 377 of the Indian Penal Code was decriminalised by the Supreme Court of India and even before that there has been growing activism surrounding various rights of the LGBTQ+ community. There is also uncertainty regarding the rights accorded to the Couples in the community since their union is still not recognised by Indian Law. That being said, all their rights remain equivalent to any other citizen of the country as per article 14 of the constitution of India. Some areas where the rights are not accorded to them are in marriage and succession. Inheritance and succession laws in India are presided over by various statutory acts namely Indian Succession Act, 1925; Muslim Personal Law (Shariat) Application Act, 1937; Hindu Succession Act, 1956 and certain sections of other acts along with numerous judgements. The blog discusses the provisions relating to succession in the various acts and whether they accord rights to the LGBTQ+ community along with the various supporting judgements and specifying the ones that specifically disallow succession. Furthermore, the blog will discuss if there are many ways this community can work around these restrictions and the need for legislation to be inclusive of this community.
INHERITANCE AND SUCCESSION RIGHTS FOR THE “THIRD GENDER”
Every act whether, be it for any particular section of the population has defined the term heir and mentioned the people who can come within its scope and qualify for intestate succession. Beginning with the inheritance in Muslim Laws, which is guided by the Muslim Personal Law (Shariat) Application Act, 1937 and is strict in terms of naming heirs. It uses the word “wife” and “husband” and not spouse or partner and makes it impossible for a person of the third gender in a relationship to inherit through intestate succession. Speaking of Christian Law which is guided under the Indian Succession Act, 1925, as per Section 32 of the Indian Succession Act, “The property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules hereinafter contained in this Chapter.” This essentially means that upon the death of a spouse the heir can be either a husband or a wife. Upon examining section 33 of the same act its meaning can be interpreted to be only a husband or wife. The same can be seen in section 54 of the Indian succession Act in terms of Parsi Succession law. When it comes to the laws guiding succession in Hindus, section one of the Hindu Succession acts uses the word person while explaining the people who come under the ambit of the act, instead of specifying male or female. As per the General Clauses Act, 1897 the term ‘person’ has a huge scope as to who can be included in it. This can be interpreted to be inclusive of the third gender as well. Although section 3(f) of the act mentions the heir as ‘male’ or ‘female’ and does not talk about people of the third gender, Section 26 to section 28 of the Hindu Succession Act describes the grounds for disqualification and does not mention being a transgender as grounds for disqualification. Furthermore section 28 of the act states, “No person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity, or save as provided in this Act, on any other ground whatsoever” and disqualifying a person of the third gender goes against the essence of the section. Thus, a person of the third gender should be allowed to inherit property. It becomes necessary for these old statutes to be amended to include the third gender after the supreme court judgement in which it confirmed the legal right of recognition and the status of “Third Gender” Citizens of India in NALSA v. Union of India.[1]
SUCCESSION IN HOMOSEXUAL PARTNERS AND NEED FOR THEIR INCLUSIVITY IN VARIOUS STATUTES
Summarising all the definitions of the acts mentioned above, each of them only mentions two genders, and mention of the third gender is absent. But they do suggest that husband or wife could become an heir. The sections of the act are vague on the type of relationship for example, in a relationship that consists of two husbands, upon the death of a spouse the husband will still be the heir as per the wordings used in the act. But the fact that homosexual marriages are not recognised by law currently can hamper the right of inheritance of the spouse in such relationships. Since each act talks about how the partners should be legally married to qualify for intestate succession.[2] Legal recognition of such marriages could go a long way in restoring the inheritance rights and even other rights that they have been deprived of and make them eligible for intestate succession. Especially now since in Navtej Singh Johar v. Union of India[3] the Supreme court of India mentioned that an individual’s right to choice of partner is included in article 21. Therefore, one must be not deprived of a right, just because one chooses to exercise another fundamental right.
USE OF A ‘WILL’ FOR SUCCESSION
One way for a person of the third gender or a partner in a queer relationship to receive or give inheritance is through a will. A will can override intestate succession. For example, in Muslim Law(Shia and Sunni Law) one can bequeath one-third of their property to the person of their choice although more than that is void.[4] On the other hand in Hindu Succession law, a will can completely override intestate succession as per the Indian Succession Act,1925.
RIGHTS OF THE WARD OF AN LGBTQ+
Coming to the rights of a child of an LGBTQ+ person. The biological child of a queer person enjoys the same rights to the property and assets of parents that any other biological child is accorded in the Hindu Succession Act, 1956. The making of a will is not required in this case because not only biological but even adopted child has a share in parent’s assets. The sexuality of the Parents plays no role in determining whether a child has a right to the parent’s property.
CONCLUSION
There are many rights that the LGBTQ+ community is denied due to the rigidity of laws that are in place in the present. These laws make it difficult for the community to exercise their rights as fundamental as the right to equality. In many aspects of their life, these rigid laws limit their lifestyle and choices. One of them is in the aspect of inheritance laws. The acts that govern the inheritance laws are so old that they fail to account for the new developments in society and the increasing awareness about the queer community. Even the Supreme Court has ruled in the favour of providing them with the basic rights in cases like Navtej Singh Johar v. Union of India and National Legal Services Authority v. Union of India. These judgements and developments need to be noticed by the government and the Acts must be amended to accommodate the community with the rights that the rest of the citizens enjoy, upholding the essence of the Constitution of India and primarily articles 14 and 15.
Author(s) Name: Manann Bhoota (Government Law College, Mumbai)
References:
[1] National Legal Services Authority v. Union of India, (2014) 5 SCC 438
[2] Hindu Succession Act,1956 s10; Indian Succession Act, 1925 s34,54;
Muslim Personal Law (Shariat) Application Act, 1937 s2
[3] Navtej Singh Johar v. Union of India (2018) 10 SCC 1
[4] Husaini Begam v. Muhammad Mehdi, 1927 SCC OnLine All 20
