Author: Savio P Xavier, Student at NMIMS School of Law, Navi Mumbai, Maharashtra.
Co-Author: Lenna Joshy, Student at Government Law College Thrissur, Kerala.
INTRODUCTION
The problem of intestate succession to a hindu female got some importance before 1956 because in the majority of the cases only a limited interest in property was enjoyed by women back then. Even though few exceptions existed, mostly known as stridhana as described in Shatri texts, where in some circumstances she could enjoy an absolute interest, and succession developed to the female intestate’s heir. Intestate succession to a Hindu female was not codified until the Section 15 of Hindu Succession Act,1956 was enacted, even though earlier reforms gave widows enough rights with respect to her husband’s intestate properties.
Since long the rights of a woman have been curtailed in almost all aspects of her life. Right from the very basic right which is to possess a property was not enjoyed by a woman in the past. This article tries to explain how the succession laws gave women some rights in this aspects by diluting the existing Hindu laws in the country.
HINDU SUCCESSION ACT
Section 15 of Hindu Succession Act was the first ever effort taken for a statutory enactment which dealt with succession to the property of a Hindu female intestate. Even though prior to this efforts had been done, through the Hindu Law of Inheritance (Amendment) Act, 1929 and the Hindu Women’s Right to Property Act, 1937, its aim was to secure both their property as well as maintenance rights instead of providing a proper succession of her property. This is because the status of absolute ownership in the property was never given to a woman back then.
Thus from the introduction of sec. 15 in the Act, along with sec. 14, it gave absolute ownership to the female for the first time ever in accordance to her own property. This section applies to all the property held by a woman as an absolute owner, irrespective of the fact how it was acquired which includes immovable property as well. This is the first time that there was a deviation from Shastric law, according to which a woman cannot hold an immovable property absolutely. This is completely against the Mitakshara coparcenary as it considered women to be just a coparcener. With respect to sec.14(2) of the Act , a woman is not considered to be a limited owner as this section does not apply otherwise.
Depending upon the source of acquisition of the property of a female, this Act provides three different sets of heirs which are available for the succession. Basically, her property can be divided into three categories which a female Hindu inherited : “from her own parents, from her husband or her father-in-law and other property (general property)”.
Basically speaking general property are such properties which are inherited by a woman either from her husband, parents or her in-laws. This also covers such properties which she inherited from other devices like a will, gift and so on. If any property is acquired through her self-acquisitions and also from any other sources can be included in this term.
There are six separate categories of heirs provided under the original Hindu Succession Bill (Bill No. 13) of 1954 with respect to general property. According to his draft “the husband’s turn to inherit comes after the children and the grandchildren of the intestate and her parents were preferred to the heirs of the husband.” This bill decreased the importance of Shastric law which was the main reason for a lot of criticisms. This resulted in the emergence of our present day provision which makes sures that equal share of the property is given to all members of the family right from the children to the husband by giving importance to her husband’s heir over her parents. This makes sure that patriarchal aims to preserve the property within the family of the male Hindu is well maintained.
It is under sec. 16 that rules of devolution of property u/s 15 is further elaborated. It says that the rules specified in sec 15(1), those in one entry will be preferred to those in any succeeding entry, keeping in mind that equal shares of the property is given to such heirs. The two terms “daughter” and “son” include woman’s both biological and adopted, legitimate or even illegitimate children.
Under sec 16 rule 2 of the act clearly mentions that in circumstances when the mother predeceased her children, then he/she will be allotted a share. For such an inheritance to take place then two conditions should be satisfied, which is, the grandchildren should be born as a result of a valid marriage between the parents and also should be their legitimate offspring as well. The term “husband” under section 15 of this particular act is a person who represents the spouse in a valid marriage. This relationship comes to an end only after the death of the intestate. This section does not include a divorced husband but on the other hand “a widow of a predeceased son is considered to be class-I heirs”[1] under section 8 this act, even though this relation does not allow them to inherit the property of the female intestate they may inherit as per sub-section(1) clause(b), as they are considered to be the heirs to the husband.
It is with respect to the principle of propinquity in relationship and love and affection that the rules of inheritance in Hindu Succession Act is enacted. It is not enacted by keeping in mind the spiritual benefit nor even the religious efficacy of the intestate.
When a woman gets married to her husband then she can inherit only from the four relations of her husband which arises from that marriage, namely, husband’s father, the paternal grandfather, his brother and the step-son of the woman ( she inherits from him by virtue of being his father’s widow). In case the woman dies then the above mentioned “heirs of husband” will be deemed to succeed her property, with reference to her own parents as well. This section may not be practical as in majority of the cases a childless widow may decide to stay in her natal home as for her it may be safer place to live than her husband’s home. If we look at these provisions, emphasize that no other laws in the country relating to succession privilege relations through marriage over blood relatives of a woman.
Sec 15(2) of the act provides that when a hindu female inherits property does not come under sub-section(1) if she inherits either from her own father or mother, but upon hiers of her father.
If we view this from feminist perspective, we can see a gendered nature in this section and if the the legislature really wanted to conserve the property within the family from where it originated, then in that case the appropriate provisio should have been that where property is inherited from the mother, it should devolve upon the heirs of the mother.
In certain circumstances when a woman inherits a property it goes back to her husband’s heirs from whom or from whose father, she had inherited the property. This has been explained under section 15 (2) (b). It says that these circumstances occur when the woman inherits property either from her father-in-law or from her own husband itself and dies issueless. This issue has been dealt with in the Gauhati High Court in the case of Dhanistha Kalita Vs. Ramakanata Kalita[2]. In this case under section 15(2) of the act does not involve illegitimate child due to which he is excluded to inherit the property from the second husband.
It should be noted that only Hindu Succession law gives two separate schemes of succession for male and female intestates. This is because of the emphasis laid down in the Hindu law to conserve and protect the property within the male hindu family. When we examine both sec 15 and sec 16 together we can see that the underlying high patriarchal premise of stridhana still prevails. Sec 15(2) which talks about the reversion of a woman’s estate with respect to the property inherited from her parents, or husband, can be reflected on the principle that a woman has only a limited estate over non-stridhana property, where she was prevented to control the property which she inherited. Thus we can say that even though the Act seeks to follow the principle of nearness, we can still see that the husband’s heroes are preferred more than her own blood relations.
The act takes “a deviation from the principles of Shastric laws by considering daughters over sons thereby both having an equal footing on their mother’s intestate property. The Act was made with a patriarchal setup, where a woman is not having a permanent family of her own. The privileging of husband’s heirs is in part a function of the Shastric obsession with preserving the property of a male hindu within his family. The hindu society is a primitive society when preservation of property within the patrilineal house was a premium, keeping this in light, these provisions are in dire need of reform — being entirely repugnant to the constitutional goal of equality. Such a proposal was sought to be incorporated in 2005 Amendment, which instilled a modicum of gender equality by conferring coparcenary right to daughters, but for a host of political reasons, Parliament was wont to demure from reforming the provisions relating to intestate succession to a Hindu female.”
CONCLUSION
It is high time that equal status should be given to both the genders. Thus in the outlook of the patriarchal society which still exists in India it is the duty of the law keepers to elevate women to equal status of men without any discrimination which is envisaged in the Constitution of India. We can achieve this milestone only when we can see a differentiation between religion and laws. Religion is only a personal status of a person. The current provisions engender the past inconsistent principles of laws in various aspects relating to women hereby bringing way more serious impediments towards gender equality.
BIBLIOGRAPHY
Books
- Buhler. Max Mueller’s Sacred Books of the East. Vol. II.
- Ganganath Jha, Hindu Law in its Sources, Vol. II, (1933).
- Krishnaswamy lyer, Smritichandrika, 445. (Madras, 1867).
- Mayne’s Treatise on Hindu Law and Usage, ed. S. Srinivasa Iyengar. 10 Edition,
- Poonam Pradhan Saxena, Family Law Lectures, (3 Edition, 2011).
- PV Kane, History of Dharmasastram. Vol. 1 (1930).
- Rameshwar Dyal Aggarwal, Hindu Law, (ed. A.N Sen. 2002). SS Setlur. Subodhini and Balambhatti on Mitakshara (1912).
Statutes
- Hindu Law of Inheritance (Amendment) Act, 1929
- Hindu Succession Act, 1956.
- Hindu Women’s Right to Property Act, 1937.
FOOTNOTES
[1] Section 8 of Hindu Succession Act, 1956
[2] Dhanistha Kalita v. Ramakanta Kalita, AIR 2003 Gau 92.