Gender justice in hindu succession laws
Women since the vedic times were held in great regard and enjoyed various rights and privileges. She shared equal rights and obligations with her husband. However, the only discrimination they were subjected to was in matters of inheritance but they were never excluded completely from inheriting. Slowly this discrimination crept into other areas. Currently the presence of fewer rights of women than men in Indian Personal laws is generally attributed to the sanctity of religious law. Several changes effected over the decades indicate the selective application of sanctity argument.
Realising the importance of equal status of women the Law commission suo moto took note of the issue and made recommendations of an extreme nature in its 174th report, 2000 on “Property Rights of Women: Proposed Reforms on Hindu Law”.
Dominance of Males in succession i.e., male is the head of the joint family and therefore he holds the right to ancestral property.
Nature & Scope & Limitations:
This article critically examines the provisions of Hindu succession Act, 1956 including the latest amendment to the Act in the light of gender justice. Analysis of the current status of Hindu women vis-à-vis men will be done.
What kind of property we are concerned with?
Part I of this article lays down gender discriminatory provisions in HSA. Part II analyses the Hindu Succession Act in three stages; firstly prior to the 2005 amendment, secondly post the 2005 amendment and finally persistent discrimination in the current law. Part III draws a distinction between gender discrimination and injustice meted out.
Hindu Succession Act, 1956
Kinds of Property:
- Joint Family Property or coparcenery property
I. A. Hindu Women's Right To Property Act, 1937
This act was the outcome of the colonial rulers' attempt to bring about uniformity in Hindu succession laws and recognise women's right to fair and equitable treatment in such matters.
Recognition Widow's Interests:
This act recognised the right of the widow in intestate's property. With this widow of the intestate, his son's widow and his grandson's widow posses the right along with the son and grandson. However, this right as per Section 3(3) of the Act is limited. In addition, this act provides, at par with males, right of claiming partition. Further, widow of a coparcener is entitled to the same interest that her husband had at the time of his death. The Bombay High Court in Dagdu v. Namedo
The inheritance rights, however, are not at par with that of men's as it has excluded agricultural land and daughters from the ambit of the Act.
I. B. Prior To The Hindu Succession (Amendment) Act, 2005
I. C. Post The Hindu Succession (Amendment) Act, 2005
Inheritance of Agricultural Lands: Section 4(2) prior to the amendment exempted the application of this Act from affecting any provisions concerning tenurial laws. Inheritance of agricultural property before this amendment was subjected to Stae tenurial laws. Many of such laws were gender discriminatory. The rationale behind such bias was that grant of right over such land to women would result in further fragmentation of land holdings which would lead to agricultural lands becoming unprofitable. Considering that fragmentation takes place even with sons' inheritance this argument does not hold.
With the amendment it has overriding capacity over such laws.
Right to Partition of Dwelling House by A Female Heir: § 23 HSA which was omitted by the 2005 amendment has limited the scope right of female heirs with respect to dwelling house. Until male heirs choose to divide their respective shares class I female heirs cannot bring about partition of the dwelling house. At several instances the courts had to grapple with the question whether female can ask for partition in cases where there is only one male heir. In 1996 the Supreme Court in Narashimaha Murthy v. Susheelabai where the intestate died leaving behind three daughters and one son. The Court held this section applies to the present case and it prohibits partition even if there is only one surviving male heir and female right is kept in abeyance and deferred during the life of the male heir or till he partitions or ceases to occupy and enjoy it or lets it out or till at a partition action, equalities are worked out.
The Supreme Court observed:
It looks nebulous that if there are two males, partition at the instance of female heir could be resisted, but if there is one male, it would not. The emphasis on the section is to preserve a dwelling house as long as it is wholly occupied by some or all members of the intestate's family which includes male or males.
Daughter had right to residence in the dwelling house of the intestate provided she was unmarried or deserted or separated or was a widow. With the amendment daughters, married or unmarried, will have equal rights along with sons to reside in and claim partition in the dwelling house. This is a welcome move for women in general and especially for those who facing domestic violence in their matrimonial home.
Existing Discriminatory Provisions:
Different Rules of Succession: Sections 8 to 13 and 14 to 16 lay down rules regarding Hindu males and females respectively. The presence of different rules for succession is in itself a contradiction to equality. However, any injustice meted out as a consequence of separate rules is a different question. Due to the presence of different rules following are the provisions which are biased against women:
- Exclusion of Mother: According to § 15(1) of the Act property of a Hindu female intestate devolves firstly upon sons, daughters and husband. In case of males mother of the intestate categorised as Class I heir inherits equally with the children and husband wife of the deceased son. Presence of children and husband excludes mother from inheriting property of her daughter.
Source of Acquisition: According to § 15(2) in the absence of children or children of predeceased child, the property would devolve upon her father's heirs or husband's heirs based on the source of acquisition i.e. if the property is acquired from her parents then the father's heirs posses the right to inherit the property. Whereas in males source of acquisition is irrelevant. It is perceived that women have a limited ownership over her property.
Preference to Husband's Heirs: In case of self acquired property as per § 15(1)(b)puts heirs of the husband ahead of her father's heirs as in (1)(d), mother's heirs as in (1)(e). There is a possibility that her in-laws might inherit over her own parents. In a recent judgement Om Prakash v. Radha Charanthe Supreme Court has supported this view. In this case the wife was thrown out of the matrimonial home after unfortunate death of her husband by her in-laws. She took up the job as a school teacher and acquired considerable wealth and stayed along with her parents. Latter she died intestate. Her mother and her in-laws filed for grant of a succession certificate under § 372 Indian Succession Act. The Supreme Court held that in case if the intestate women die issueless, the heirs of her husband are given preference over her parents.
Discrimination Against Men: Following are the provisions in the Act which discriminate males:
- Father is a Class II heir whereas his wife is a Class I heir.
Son of predeceased son of a predeceased daughter and son of a predeceased daughter of a predeceased son are in Class II whereas by virtue of the 2005 amendment daughter of a predeceased son of a predeceased daughter and daughter of a predeceased daughter of a predeceased son are elevated to Class I.
Regarding (a) the 204th law commission report recommended that father should be elevated to Class I as it natural and logical to expect that he should be given the right of inheritance like a mother.
Regarding (b) the law commission said that there is no rationale for not upgrading the decedents to Class I as their female counterparts being in the same degree of relationship to the intestate have been upgraded to Class I.
Married Daughter's Place of Residence: Women's residence after marriage is assumed to be husband's home thereby wives of deceased husband can inherit property. Whereas the husband cannot inherit property in such cases. This is discriminatory but not perceived as injustice.
Agnates are given preference over cognates is based on an ancient standards of propinquity.
It can be concluded that despite the tall promises of bringing about gender equality, the amendment has failed in achieving its objective.
(Nature of property? Is such discrimination justified?)
A glance at Section 10 of Hindu Succession Act, 1956 gives an impression that Class I heirs are entitled to the property equally.
HSA retains the age old shastric law that women ceases to be member of her parental family after the marriage and it is the role of the husband to support his wife. Following are few provisions in the HSA act which reflect this attitude.
This is true in most parts of India, however, it is no longer the reality as increasing number of women in the modern society get married very late or get divorced, work, manage business etc.
Which is, however, not the only reality.
Women As A Coparcener:
Further Complications: If a Hindu female coparcener dies intestate leaving behind her share in the coparcenary property, what would be the character given to such share?
Women As Karta Of A Joint Family Coparcenary Property:
- As we know that karta of a Hindu Joint Family is the senior most member of the family entitled to manage family affairs. He should be coparcener.
- Prior to the amendment some courts refused to recognise women to be karta's because the head has to be coparceners as women cannot be a coparcener hence they cannot be karta. However, they are conflicting judgements and opinions by scholars who referring to ancient Hindu texts demonstrated that women can become kartas of a joint family.
With the amendment, the next question for consideration is can women be the karta of a joint family property.
In Commissioner of Income Tax v. G. S. Mills, the SC held that widow could not be a karta of the family. This doesn't mean that women cannot be the karta of the joint family.
Source(s) FM II S11 & 13.
Q1. Can a woman be Karta in the presence of another male member (elder or younger)?
Q2. Can a woman alienate property in the absence of a male head?
Double inheritance by Wife and Husband:
Women inherits from her parents as well as from her husband. Even husband inherits from his parents and wife.
Discrimination Against Women:
- Stridhan - (Section 14)
Joint Hindu family concept breeding gender inequality.
Discrimination V. Injustice
Laws are based on the assumption that regardless of gender everyone is equal. However this equal treatment is only among equals i.e. no discrimination. Hence unequals should be treated unequally i.e. positive discrimination. Therefore laws might discriminate among people but with an objective of bringing about justice. Certain provisions in the Act discriminate Hindu women but this does not necessarily follow that injustice has been meted out on the basis of gender. This can be demonstrated by the following:
- Section 10 Rule 4 HMA allows widows predeceased son of the Karta to inherit whereas it excludes widower of predeceased daughter.
Wives have been given property share from her matrimonial side whereas this is not the case with husband.
In all the above instances women are get a preference which is not enjoyed by male counterparts. For any discrimination to be valid there should be a rational basis.
Vinay Reddy in his article argues that the discrimination in inheritance laws against women lack such rational basis on the following grounds:
- Daughter goes Away: As daughters ultimately have to live in their matrimonial homes and it becomes impracticable for her to guard the property. This he argues is faulty because firstly this is a possibility not just with women but men included, secondly in cases daughter remains single it would render her powerless.
- Uneasiness in Sibling Relationships: An absurd argument as this cannot be used to deny shares in material resources.
Sons Look After Old Parents: This is based on a false presumption that sons look after their parents and hence right to inheritance is a reward. This again fails as there are innumerable cases where men inherit despite not supporting their parents.
Dowry: It is argued that women's share in the property is given in the form of dower. But this does not hold because it is given to son-in-law's family and it is a social evil.
It has been demonstrated that the above arguments do not show any intelligible grounds for discrimination between men and women.
On treating men and women equally can we assume them to be just?
Not necessarily in all cases but what about succession laws?
Now to the question whether laws should favour women in succession laws so as to bring about justice is debatable.
Possibility Of Abuse Of Succession Laws By The Patriarchal Society
- Testamentary Succession: Section 30 HSA concerning testamentary succession, according to some scholars would be prejudicial against women's interest in succession. With this provision, it is still possible for males to alienate property which can prejudicially affect the right of women. Some scholars believe that this unrestricted right can alienate property in such a way to deprive women of their share considering the highly patriarchal mindset of the majority. With these amendments we might see increasing number of people dying testate so as to avoid property being inherited to female counterparts.
Conversion: Section 26 deals with right of succession of decedents of converts. There are increasing numbers of people who are having inter-religious marriages. Considering the male domination in women generally tend to convert their religion. This could prejudice the interests of her decedents.
State Amendments: As succession laws are under Entry 5, List III of 7th Schedule to the Constitution there have significant amendments to the Act. Among them the first significant change was brought by the Hindu Succession (Andhra Pradesh) Amendment Act, 1985 which sought to bring parity by placing the rights of daughters absolutely to those of the son. Similar changes were made few states such as Tamil Nadu, Maharashtra and Kerala. This is in way a good as it gives opportunity for progressive looking state to bring about change. Conversely, it could be a tool in the hands of States influenced by regressive thinking process.
Notes and comments jili... hard copy... marriage essential for a women.. page 1
Despite the gender harmonizing laws, women still not perceived as natural inheritors of property. Adding to it is the lack of awareness of their rights and financial resources women which are hindering their ability to make use of the advantages provided by such laws. The only solution for such problem is not by enacting fresh legislations instead effecting changes from within by the process of natural evolution as per the needs of the society.
It is important to be clear on our objectives i.e. do we need gender equality by creating gender neutral laws or gender justice which can be obtained only if consider the present status of women?
It is unsound to support the gender discriminatory provisions on the ground of religion because firstly Hindu law is not and has not been static and secondly many laws so far have digressed from the tenets of Hindu law.
Laws may provide for formal gender neutral provisions, however, this would necessarily ensure justice in effect.
In order to avoid injustice towards women considering the highly patriarchal society there should be limits on testamentary succession as in some western countries.
With an objective to achieve gender justice the laws should avoid reverse gender discrimination
Despite of the gender harmonizing amendment, there is further scope for changes in this direction. It is admitted by the Law commission in its latest report on HSA that there are certain discrepancies in the schedule to the Act.
The researcher believes that the recommendation of the 204th report by law commission should be accepted in totu.
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Nagal, Ramesh C., Modern Hindu Law (2nd ed., Eastern Book House: Nagpur, 2008) (1983).
Saxena, Poonam Pradhan, Succession Laws and Gender Justice (Parashar, Archana, & Dhanda, Amita., (ed.,) Redefining Family Law in India Routledge: 2008)
Agarwal, Bina., ‘Bargaining', Gender Equality and Legal Change: The Case of India's Inheritance Laws (Parashar, Archana, & Dhanda, Amita., (ed.,) Redefining Family Law in India Routledge: 2008)
Chadha, Purva., Hindu Family Property Law in India & Gender Inequality: An Analysis of Hindu Succession Act, 1956 Supreme Court Journal
Bhargava, Bal Krishna., Hindu Female & Hindu Succession Act Taxman 111(04), 2000; 168-174
Das, Amrito., National Partition: A Critque section 6 of HSA, 1956 All India Reporter (05) 2004; 149-160
Davda, C. R., A Study of the Amendments made in the HSA All India High Court Cases 01(02), 2008; 24-26
M Ramakoti, Section 6 & 29A of HSA - A Critque, AIR (10) 2003; 289-291
Suman Gupta, Status of women under HSA, 1956 AIR 94(05), 2007: 65-72
Reddy, Vinay., Women and Succession Laws In India - A Critical Analysis India Journal Of Socio-Legal Journal 26(1&2), 2000; 19-28
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Prakash Chand Jain, Women's Property Rights Under Traditional Hindu Law and HSA: Some Observations Adoption Some Unsolved Issues Journal of Indian Law Institute 45(03& 04), 2003; 506-536
FM II S5:
The article tries to look at gender inequality prevalent in Hindu Succession act and its impact on economic success. The author argues that in order to progress in the 21st century, it is inevitable that personal laws should provide equal rights.