The Supreme Court, in a recent judgment, ruled that a daughter has the same rights as a son in ancestral property under the Hindu Succession (Amendment) Act, 2005, irrespective of whether the father was alive at the time of the amendment. Till its amendment in 2005, the principle law - the Hindu Succession Act, 1956 (HSA) - did not grant daughters rights in ancestral property. While the amendment in 2005 and the recent ruling by the Supreme Court are significant steps towards eliminating gender-based discrimination in inheritance in Hindu Personal Law, the law is not yet free of discrimination against women. In matters of devolution of property, the HSA still discriminates against women and their families.
The HSA governs intestate inheritance of property belonging to Hindus, Buddhists, Jains, and Sikhs in India (approx. 80% of the population). Section 8 of the HSA governs devolution of men's property, and Section 15 governs the devolution of women's property. Under Section 15(1) of the HSA, if a Hindu woman dies without creating a living will, her estate is divided in the following order: Firstly, to the husband of the deceased woman, and her children (and children of any of her children who may have died before her); If there is no surviving husband or children, then upon the heirs of the deceased's husband; If there are no heirs of the husband, then upon the husband's parents; If the husband's parents are not surviving, then upon the heirs of the deceased woman's father; and If there are no heirs of the father, then upon the heirs of the deceased woman's mother. This scheme of devolution applies to two categories of property. First, any property the woman acquires on her own. Second, any property which she inherits from people other than her husband or her parents. The husband's natal family, therefore, has a stronger claim to the woman's self-acquired property than her own natal family. The same rule also applies to any property she inherits from siblings and distant relatives. We do not see any reciprocal provision in Section 8 for property belonging to men.
Section 15(2) of the HSA dictates how the property she inherits from her husband and parents devolves. Under Section 15(2) of the HSA, if a widow dies childless, any property she inherits from her parents devolves to the heirs of her parents (viz her siblings). Any property she inherits from her husband devolves to her husband's heirs. Again, there is no reciprocal provision in the scheme of devolution for men's property. After his children and the wife, a man's natal family has a claim over all the property which belongs to him. The woman's family is not mentioned at all.
In both Section 8 and Section 15, the fathers (and their heirs) in either case have a stronger claim than the mother. In general, relatives through male lines are given a far higher priority than relatives through women.
The injustice of these provisions is showcased perfectly in a 2009 case heard by the Supreme Court of India - Omprakash v. Radhacharan and Ors. [(2009) 15 SCC 66]. The dispute was between the brothers-in-law and parents of one Narayani Devi. Narayani Devi's husband died within three months of their marriage in 1955. Her in-laws promptly threw her out of her marital home. Narayani Devi went back to live with her parents, who provided her with an education. She then got a job and eventually amassed a significant amount of property in the form of savings in a bank account and a provident fund. Narayani Devi died in 1976, without creating a living will. Her mother then sought to claim her property, but her brothers-in-law opposed her claim. The dispute eventually ended up in the Supreme Court. The Supreme Court ruled that since Narayani Devi did not have children and did not inherit the property in dispute from her parents, its devolution would be governed by Section 15(1). Under Section 15(1) the husband's heirs - i.e. her brothers-in-law - had a stronger claim than her parents. So it came to pass that the same marital family which had thrown Narayani Devi out after her husband died, ended up with the property she acquired through her effort and skill.
This would not have happened if Narayani Devi were a man. It also would not have happened if she were Christian or Parsi. The outcome under the Indian Succession Act, 1925 (ISA), which governs intestate succession for Christians and Parsis, would have been more equitable. Similarly, the outcome would have been far more equitable if she were domiciled in Goa, which has its own unique civil code, derived from the Portuguese Civil Code.
This problem has not gone unnoticed. The 174th Report of the Law Commission of India recognised that the scheme of devolution fails to account for the possibility that a woman might be capable of acquiring property on her own, through her own effort and skill. The 207th Report of the Law Commission also noted that the HSA does a disservice to women by not recognising their self-acquired property. It also recommended an amendment to govern women's self-acquired property.
The most potent criticism of the discriminatory provisions in Section 15, has come from the Bombay High Court in its judgment in Mamta Dinesh Vakil vs Bansi Wadhwa (2012). The court determined that the HSA - in matters of devolution of property - discriminates solely on the basis of gender, and therefore violates the right to equality guaranteed under Article 15(1) of the Indian Constitution. It also criticised the HSA for being out of touch with modern times. Ultimately, though the Bombay High Court, referred the question of constitutionality to a larger bench, which has so far not been constituted. So the question of whether the discrimation violates the Constitution, is not yet settled. Even if the Court rules these provisions to be ultra vires of the Constitution, it is the legislature's job to actually amend the law.
One of the solutions that is often proposed to mitigate this issue is for women to make living wills. There are two problems with this thinking. First, a recent survey found that 73% of urban Indians are unaware of the concept of a living will, and less than 6% reported to have actually made one. Second, there is a significant cost - in terms of both time and money - in creating and executing a living will, and for getting a probate (i.e. a certification from the Court that the will is valid). Furthermore, the existence of a mitigating mechanism (in this case the right to make a living will to govern devolution) cannot excuse retaining a discriminatory provision of a law. If a law or any part of it is discriminatory, the discrimination itself has to be removed.
The HSA fails to recognise women as economic actors. It treats women as entities without agency, and it devalues the familial ties a woman has with her natal family, while fully recognising such ties for a man. The need of the day is to amend the HSA to make the schemes of devolution gender-neutral. Examples of gender-neutral schemes of devolution are already present before us in the ISA and the Goa Civil Code. The Parliament needs to take this opportunity to complete the project which started with the amendment in 2005.
Views are personal only.
(Devendra Damle is a public policy researcher at the National Institute of Public Finance and Policy. This article is based on an NIPFP working paper, which can be found here.)