FEMALE INTESTATE SUCCESSION UNDER THE HSA, 1956

INTRODUCTION

India is a religiously diverse nation, owing to which, besides providing a uniform legal system, the country also accords to its people the prerogative to be governed under their own religious personal laws insofar as matters related to marriage, inheritance, succession, guardianship, etc. are concerned. For instance, the Hindus, those who are covered under Section 2 of the Hindu Marriage Act, 1955, are governed under the Hindu Succession Act, 1956 (hereinafter referred to as HSA) in matters of inheritance and succession.

The old uncodified Hindu law on succession bestowed negligible rights on females. Women were considered subservient to men and were viewed as akin to property and until the codification of the Succession Laws in the form of the HSA, they could not even claim absolute ownership over the property.[1] HSA, 1956, through its original text as well as the subsequent amendments,  has made concerted efforts to elevate the position of women. While the HSA must be appreciated for the substantial changes it has brought in the Hindu succession laws, to say that there has been a downright success in conferring equal standing to men and women would be factually incorrect. The statutory rules guiding female intestate succession are a case in point.

THE LAW ON FEMALE INTESTATE SUCCESSION

Sections 15 and 16 of the HSA become relevant while discussing the rules of female intestate succession. A reading of Section 15 indicates that the property of a Hindu female can be categorized into three types, namely, property inherited from her father or mother; property inherited from her husband or father-in-law; and the last type, the female’s self-acquired property or any other property not falling under the former two. In all the categories of property, the female’s children (including the children of a predeceased issue) and husband are given first preference in the matter of intestate inheritance. Then, the heirs of her father in the first category and that of her husband in the second category follow next in the line of inheritance, respectively.

For the third category, the general rule of succession is as follows-

“(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband ;

(c) thirdly, upon the mother and father ;

(d) fourthly, upon the heirs of the father; and

(c) lastly, upon the heirs of the mother.”[2]

Section 16 of the HSA then elaborates upon the general rule of succession given in Section 15 and establishes the order and manner distribution of the property of a female who died intestate by stating, among other things, that, “Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously.”[3]

THE DRAWBACKS OF THE LAW

The aforementioned line of order applicable to women dying intestate is different than the one followed in the case of a male and is thus blatantly discriminatory, against the fundamental right against discrimination guaranteed under Article 15 of the Indian Constitution. What further augments the unhappy state of affairs is the fact that even remote heirs of the husband precede the intestate’s parents and other blood relations in the line of succession. The latter is in anomaly with other major personal succession laws followed in India, where the blood relatives of the women inherit even in the presence of her husband or her husband’s relatives.[4]

The reason for the existence of separate schemes of succession in the Hindu personal law is the disturbing patriarchal notion that the family of a woman changes after marriage and as the man and woman become one institution, everything she owns becomes her husband’s.[5]  In line with the same, the provisions of Section 15(1) attempt at ensuring that the property that is self-acquired, inherited or received by the female intestate (except for the property inherited from parents, husband, and father-in-law) remains in her marital home.[6] 

Reflective of the arbitrariness of the scheme of female succession is the Supreme Court case of Om Prakash v. Radha Charan[7]. In this dispiriting case, the deceased was thrown out of her marital home following her husband’s death, compelling her to take her parent’s shelter. In their attempt to make the deceased independent, her parents bore the expense of her education. Owing to the aforestated, she secured a decent job and in the remaining forty-odd years of her life, before dying intestate, she went on to acquire a large amount of property, both movable and immovable. Her death, however, ensued a legal battle between her mother and brothers-in-law with respect to the succession of her property. The Supreme Court decreed in favour of the deceased’s brothers-in-law, who had once thrown her out of their house, observing that sentiments and emotions cannot be let to blur the vision of judges while interpreting any law as per the intent of the legislature.

The aforementioned judgment shakes the very sense of justice, ethics and equity that rational minds possess. Further, the Court did not even correctly interpret what the legislature envisaged while framing the provision of intestate succession. It must be taken into consideration that the basic objective of intestate succession law is that “in the absence of any express … instructions of the deceased such a distribution should be effected of her property that she in the normal course as a reasonable person would make of her own property.”[8] The current order of succession, wherein the blood relatives of a female intestate could not inherit a share in her property in the presence of even the remote heirs of her husband, does not in any rational sense seem to be the normal course a reasonable woman would take in the distribution of her property. At least not in the aforementioned case.

CONCLUSION

The foregoing analysis reveals that the current scheme of female intestate succession enshrined under section 15(1) of the HSA, 1956, is discriminatory, arbitrary, and against the basic purpose behind the synthesis of the intestate succession law, and therefore, at any cost must be declared ultra vires the Constitution.

The concerning matter witnessed a ray of hope with the case of Mamta Dinesh Vakil v. Bansi S. Wadhwa[9] by the Bombay High Court. The Court held the Scheme of female intestate succession enlisted under Section 15(1) to be discriminatory in nature and declared it unconstitutional. The case is now pending before a division bench of the High Court of Bombay. However, even if the Wadhwa case is upheld by the division bench, the Om Prakash case, being a judgment given by the higher authority (the Supreme Court), would remain the precedent. It thus seems that the law under Section 15(1) would not be amended anytime soon.

Author(s) Name: Sakshi Srivastav (Rajiv Gandhi National University of Law, Punjab)

References:

[1] DR. POONAM PRADHAN SAXENA, FAMILY LAW II 347 (4th ed., LexisNexis).

[2] The Hindu Succession Act, 1956, No. 30 of 1956, § 15.

[3] Id, § 16.

[4] SAXENA, Supra note 1 at 379

[5] Id.

[6] Sonubai Yeshwant Jadhav v Bala Govinda Yadav AIR 1983 Bom. 156.

[7] 2009 (7) S.C.A.L.E. 5: (2009) 15 S.C.C. 66.

[8] DR. POONAM PRADHAN SAXENA, SUCCESSION LAWS AND GENDER JUSTICE IN REDEFINING FAMILY LAW IN INDIA 290 (Archana Parashar and Amita Dhandha, ed., 2008).

[9] TS.86/2000-TP.917/2000 & TS.48/2005-P.104/2005.

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