The article “Hindu female intestate succession laws in relation to Fundamental Rights” is written by Gaurav Meena, a student of a lovely professional university.
Table of Contents
The Hindu Succession Act, 1956, was enacted to provide equal inheritance rights to Hindu women and men. However, the Act also introduced some provisions that discriminated against women in certain cases, such as when they inherited property from their parents or husband. These provisions were challenged in several court cases and were amended by the Hindu Succession (Amendment) Act, 2005, which gave equal coparcenary rights to daughters and sons in joint family property. This paper aims to examine the implications of these legal changes on the fundamental rights of elderly women, who are often vulnerable to neglect, abuse and exploitation by their relatives. The paper will analyze the constitutional provisions that safeguard the rights of senior citizens, such as Article 41, which guarantees the right to work, education and public assistance in cases of old age, sickness and disability¹. The paper will also review the various laws and schemes that protect the interests of elderly women, such as the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, which provides for maintenance and welfare of parents and senior citizens by their children and relatives². The paper will highlight the challenges and gaps in the implementation and enforcement of these laws and schemes and suggest some measures to improve the situation of elderly women in India. The paper will conclude that while the Hindu succession laws have been reformed to grant equal inheritance rights to women, there is still a need to ensure that these rights are respected and exercised by elderly women without any discrimination or coercion.
Hindu Succession Act, Hindu female Interstate succession
Here is a brief literature review of research papers on Hindu female intestate succession:
- “Hindu Female Intestate Succession Laws and Their Impact on Fundamental Rights of the Elderly” by Bidisha Das and Shivangi Banerjee: This paper discusses the discrimination faced by females in Hindu families in terms of inheritance and succession. It highlights that for forty-nine years, men and women had different schemes with regard to inheritance where the woman was refused the right to marital property on the basis of her marital status¹. The paper recognizes the constitutional implications of such provisions and their effect on the elderly.
- “CURRENT POSITION OF HINDU WOMEN IN INDIA: WITH SPECIAL REFERENCE TO SUCCESSION LAWS” by Jahnvi Choudhary: This paper discusses the position of Hindu women in India with respect to succession laws. It mentions that Hindu women did not hold any rights in the coparcenary property until 2005. Even after the 2005 amendment in the Hindu Succession Act, 1956, only 2% women hold agricultural land in India. The paper aims at studying the interpretation of the 2005 amendment and current position of women in India.
- “Female Intestate Succession under Hindu Law Finally, Hope”: This article examines the scheme of succession for Hindu males and females, its wider implications, the policy of non-interference by the courts, the recommendations of the Law Commission of India and the National Commission for Women and makes suggestions for removing the disparity between Hindu males and females in respect to devolution of property.
- “Succession to the Property of a Hindu Female”: This article also examines the scheme of succession for Hindu males and females, its wider implications, the policy of non-interference by the courts, the recommendations of the Law Commission of India and the National Commission for Women and makes suggestions for removing the disparity between Hindu males and females in respect to devolution of property.
These papers provide a comprehensive overview of Hindu female intestate succession laws, their historical context, current status, and potential areas for reform.
The ancient Hindu law, Manu smriti, contains the Sanskrit phrase “Na stree Swatantra arhati,” which translates to “Woman does not deserve freedom.” This is just one of many patriarchal phrases in the text. It’s no secret that Hindu women have long struggled for socio-cultural recognition of their basic rights, and the codified Hindu personal law has only added to this struggle due to its outdated provisions.
In recent years, the Judiciary has made strides towards a more progressive and socially inclusive India. They’ve repealed discriminatory laws like section 377 of the Indian Penal Code and the Triple Talaq rule, among others, to promote gender inclusivity and equality. However, gender disparity still exists in our legislation and society, largely due to our customs, traditions, and personal laws.
Our religious diversity is one of the things that sets Independent India apart from colonial India. This diversity is reflected in our personal laws, which were created to ensure religious freedom. Over time, amendments have been made to adapt to economic and social changes. There’s been a wave of liberal change in the form of protests, petitions, and debates advocating for equality and justice.
Unfortunately, most personal laws are outdated and have discriminatory and patriarchal roots. The Hindu Succession Act of 1956 (amended in 2005) is one such law. Despite Hinduism’s portrayal of goddesses as married women, the religion’s codified legislation is rife with misogyny, particularly towards married women. Women have long been discriminated against in terms of inheritance and succession.
For 49 years, men and women had different inheritance schemes, with women being denied the right to parental property based on their marital status. In 1985, several states recognized these issues and amended the law to make women legal coparceners. However, these changes were not adopted nationwide, and many inequalities remained in the act.
The 2005 amendment to the Hindu Succession Act addressed most of the discriminatory inheritance provisions. However, there are still areas that need attention. To truly be a secular country, it’s crucial that these sections be amended for social welfare.
Recent amendments and the areas overlooked
The Hindu Succession (Amendment) Act of 2005 highlighted the gender disparity in Hindu succession and marked a turning point for women, not only in Hinduism but also in other religions. The amendment served as a landmark for introducing feminist changes in personal laws. These crucial changes were made by amending sections 4(2), 6, 23, 24, and 30 of the acts.
The Hindu Succession (Amendment) Bill of 2004 discussed each of these sections and their anomalies in detail. It highlighted the vast differences in the treatment of men and women and the unfair advantage given to Hindu men based on ancient traditions. This underscored the need to update these laws over time.
To elaborate on the amended sections:
- Section 4(2) previously excluded women from obtaining tenancy rights to agricultural land.
- Section 23 denied female heirs the right to seek partition of their dwelling house until male heirs agreed to divide their shares.
- Section 24, which was discriminatory against widows, fell under a similar pretense.
- Section 30 made the terminology used in the act more gender neutral.
- The most celebrated amendment was to section 6, which made women eligible to be coparceners in the property of the Joint Hindu Family by birth. This gave them similar rights and liabilities to that of a son, ending limitations on their property rights as recognized under Article 31 of the constitution and The Hindu Women Rights to Property Act, 1937.
These changes significantly contributed to upholding women’s rights as guaranteed by the constitution. However, marital status remains a major obstacle to achieving absolute equality in succession rights. Provisions dealing with the rights of married women who die intestate were left untouched.
What is Section 15(1)
India has been a male-dominated society for as long as history can remember. Men have always been preferred, and the biological differences between men and women have led to inequality and domination, resulting in the oppression of Indian women. A recent survey by the Thomson Reuters Foundation ranked India as the most dangerous country in the world.
In ancient times, an attempt was made to give married women a separate identity by referring to them as “Ardhangini”. However, several abusive practices emerged during the Vedic period, including the Sati system, Pardha system, child marriage, dasi Pratha, Niyog Pratha, and others. The Garuda Purana warned women to follow the rules of the Vedas or face punishment in hell. These ancient rules oppressed women and punished them for disobedience.
The disturbing trends in India’s sex ratio and survival rates indicate a long-standing preference for sons. Sons are expected to carry on the family name, earn money, support their parents in old age, and perform funeral rites. Daughters, on the other hand, are expected to marry into another family and take their dowry with them, thus being seen as a financial burden on their family. An Indian proverb says, “Bringing up a daughter is like watering a plant in someone else’s courtyard.”
From ancient times, male children were preferred over female children. It was widely believed that only males could be heads of households, bring food to the table, and deserve property. As a result, parents began to wish for male children and willingly handed over all property to them.
Against this backdrop, let’s discuss modern-day succession and the current impact of Section 15(a) of the Hindu Succession Act on married women. Succession is the process by which a person becomes entitled to the property or property interest of a deceased person. In cases of intestacy (when a person dies without a valid will), property is transferred according to statute rather than according to the deceased’s will.
The problem with section 15(1)(b) of the Hindu Succession Act
Section 15 of the Hindu Succession Act pertains to intestate succession and lays out the general rules for the inheritance of property by a female Hindu who dies without a will. The property is distributed as follows:
- First, it goes to the sons and daughters (including the children of any pre-deceased son or daughter) and the husband.
- Second, it goes to the husband’s heirs.
- Third, it goes to the mother and father.
- Fourth, it goes to the father’s heirs.
- Lastly, it goes to the mother’s heirs.
Section 15(2) further states that:
(a) Any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter), not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the father’s heirs.
(b) Any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter), not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the husband’s heirs.
Upon reading this section, it becomes apparent that section 15(1)(b) gives preference to in-laws over the deceased woman’s own parents as mentioned in section 15(1)©. The discriminatory nature of this section is also evident in section 15(2), as it clearly states that property inherited by a deceased Hindu woman is passed on to her husband’s heirs rather than her own parents.
So, what’s specifically problematic with section 15(1)(b) of the Hindu Succession Act? It’s clear from this section that a female Hindu’s intestate property is given first to her husband and then his parents, while her own parents are Not only does Section 15 of the Hindu Succession Act show a bias based on gender, but it also impacts the elderly. In many cases, a Hindu woman would likely prioritize her own parents over her husbands in terms of inheritance. However, this section places the woman’s parents lower in the line of inheritance, often leaving them without any chance to inherit her property. This can be particularly distressing for parents who have only one daughter; when she passes away, they not only suffer emotional trauma but also miss out on what they rightfully deserve.
Furthermore, they may face financial difficulties. It’s a significant issue that a woman’s self-acquired property does not go to her parents but to her in-laws, simply because she is not a Hindu male. This discrimination affects a large number of elderly parents of married Hindu women and is rooted in biased misogyny and problematic customs.
Additionally, pushing elderly parents to financial extremes sets a negative precedent for society and increases the risk of son preference. This could potentially lead to an increase in female infanticide, further skewing the sex ratio.
Our constitution guarantees fundamental rights to every citizen, regardless of cultural or biological differences. It’s disheartening that, even after 71 years of constitutional jurisprudence, sections like Article 15(1) of the Hindu Succession Act (HSA) continue to promote unequal treatment of married women. Despite the importance of personal law in the country, these provisions are often protected under the freedom of conscience, practice, and propagation of religion as provided to communities under Articles 25 and 26 of the constitution.
Given the communal tension surrounding amendments to personal laws and the ensuing outrage, both the judiciary and executive have often been hesitant to make changes in these matters. However, it’s important to note that while the constitution guarantees people the right to freely profess their religion, it also limits this freedom when it threatens other fundamental rights or societal welfare. These limitations are present in certain provisions of the constitution, namely Article 25(1) and Article 25(2)(b), which reflect the legislative intent behind these laws.
Under Article 25(1), all religious practices are subject to public order and morality and can be restricted if they violate Part III of the constitution. Article 25(2)(b) goes a step further, giving the State the power to amend or introduce reforms related to any problem stemming from religious grounds. A similar principle was laid down in the case of Sardar Syedna Taher Saifuddin v. The State of Bombay, where it was stated that “laws providing for social welfare and reform are not intended to enable the legislature to reform the religion out of existence or identity.”
It’s clear that the constitution prioritizes social welfare and rights over religious customs carried out through personal laws. In this context, the 2005 amendment to the HSA failed to address the direct infringement of Part III of the constitution by Section 15 of the act. This section affects not just married women but also a large portion of vulnerable parents of these women. The provisions infringed by this section with respect to both women and elderly are discussed further below.
The violation of Fundamental rights (14,15 21) Article 14
In the case of Maneka Gandhi v. Union of India6 of India it was laid down that,
The rights granted to both men and women under Section 15(1) of the Hindu Succession Act directly contradict the guiding principle of the article. Considering the diverse demographics of our country, the principle of equality has been layered as needed. Special treatment is given to people living under unfortunate or unequal circumstances to ensure holistic welfare for every citizen, hence, classification was allowed under the broad definition of the article. To prevent misuse of classification, the principle of reasonableness was added, with intelligible differentia (a reasonable basis for classification) being mandatory for any form of classification in law. A similar principle was established in the case of State of West Bengal v. Anwar Ali Sarkar, where it was further added that there must be a rational nexus on which classification can be made in the application of a statute.
As previously mentioned, Section 15 distinguishes between the succession rights of a female and a male intestate, which not only violates the ethos of Article 14 but also leads to unequal treatment of the parents of the deceased. It’s strange to think that in the 21st century, a Hindu married intestate woman’s in-laws, who may or may not have been living with the deceased, are given priority over her own parents who raised her. One of the main reasons behind this unjust hierarchy can be traced back to the definition of marriage under Hindu law.
Under Hindu law, where marriage is considered a ‘union’ of two families, the laws applied to women turn it into more of an economic transaction with women being a financial addition to the family. Apart from blatant objectification of women under law, there is also inequality based on sex as a Hindu intestate male is not required to prioritize his wife’s parents over his own. It’s clear that classifications made under law are based on (a) sex of individual and (b) marital status of individual leading to unequal treatment of parents because they have a married daughter instead of a son. These classifications directly contravene tests laid down under reasonable classification with no rational nexus and are thus unconstitutional.
Articles 36-51 under Part-IV of the Indian Constitution pertain to the Directive Principles of State Policy (DPSPs). These principles, borrowed from the Constitution of Ireland (which in turn copied them from the Spanish Constitution), represent ideal policies and rights that the state should consider when formulating new policies and laws. DPSPs, often referred to as ‘instruments of instructions’, aim to establish economic and social democracy in the country.
Certain DPSPs are specifically designed for the elderly. However, it’s concerning that these policies and laws don’t affect all citizens equally, but rather a specific group – the elderly. Violations of these principles are often grossly overlooked.
Article 38 of the Indian Constitution states: “Promote the welfare of the people by securing a social order through justice—social, economic and political—and to minimize inequalities in income, status, facilities and opportunities”. This article emphasizes the welfare of people and securing a social order for them.
However, as per the Hindu Succession Act Sec 15, if a couple has only one daughter who is married and she passes away suddenly without leaving a will, all her property would go to her in-laws. This can be particularly challenging for elderly parents who don’t work after retirement or don’t receive a pension, as they lose their only child’s property and their primary means of financial support.
This raises questions about how justice and equality can be provided to all classes of elderly people. A real-life example of this issue can be seen in the case of Om Prakash v. Radha Charan. In this case, a widow was ejected from her in-laws’ house after being accused without proof of causing her husband’s death. The husband’s heirs did not inquire about the widow’s well-being until her death in 1966, when they requested that the property inherited by her be devolved to them. Unfortunately, due to this archaic provision, the court ruled in favor of the defendants.
Art 21 and the elderly
Having discussed the constitutional implications, let’s now examine how Article 21 impacts the elderly. Article 21 of the Indian Constitution primarily addresses the protection of life and personal liberty, stating, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
We’ve already established that this article affects the elderly, in addition to discriminating based on the marital status and gender of a female intestate. Recent studies in 2012 show that 87% of Indian families still believe in working after the legal retirement age due to a lack of a proper saving mechanism.
Consider a scenario where a family has only one daughter who is providing for them, and she suddenly passes away. The person dependent on her would lose not only the ongoing financial support that was their sole source of income (if the parents are not working after retirement or receiving a pension), but also any remaining property.
Current government schemes like Annapurna Yojna target vulnerable elderly individuals who are below the poverty line or abandoned by their children. However, middle-class elderly individuals, who make up a large portion of India’s elderly population and often depend solely on their children, do not receive any government assistance.
Legislation and laws are meant to benefit people and are not always restricted to existing mechanical laws. If, after judicial scrutiny, the court decides to maintain this discriminatory provision, we are not only taking away the last hope for financial stability from the intestate’s parents, but also their daily necessities, their healthcare, and their right to live.
As seen in various precedents, if this section is not amended or repealed, this portion of the elderly population will literally be unable to afford Article 21 of the Indian Constitution.
The longstanding Hindu customs and their existing rules have frequently acted as a significant barrier to absolute freedom for Hindu women. This paper utilized doctrinal research to explore the difficulties encountered by Hindu intestate women who pass away while married, and the subsequent impact on their elderly parents. It was discovered that, even after its amendment in 2005, the Hindu Succession Act continues to perpetuate injustice towards Hindu women and their parents, as all of her property is transferred to her in-laws, with distant relatives of the husband being prioritized over the deceased’s own family. It was revealed that Articles 14, 15, 21 and various Directive Principles of State Policy (DPSPs) related to the elderly are being openly violated, affecting a significant portion of Indian parents with married daughters. The paper highlights the implications of these severe violations and the potential threat this section poses not only to the elderly, but also to the country as a whole.
- Agarwal, B. (1994). A Field of One’s Own: Gender and Land Rights in South Asia. Cambridge University Press.
- Basu, S. (2014). Hindu Women and Marriage Law: From Sacrament to Contract. Oxford University Press.
- Choudhary, J. (2020). Current Position of Hindu Women in India: With Special Reference to Succession Laws. International Journal of Legal Research and Governance.
- Das, B., & Banerjee, S. (2018). Hindu Female Intestate Succession Laws and Their Impact on Fundamental Rights of the Elderly. Indian Journal of Gerontology.
- Dhanda, A. (2005). Property Rights of Hindu Women: A Feminist Review of Succession Laws in India. Hope India Publications.
- Jain, M.P. (2010). Outlines of Indian Legal and Constitutional History. LexisNexis Butterworths Wadhwa Nagpur.
- Menski, W. (2003). Modern Indian Family Law. Routledge.
- Singh, A.M., & Singh, S.P. (2011). Law Relating to Women and Children. Eastern Book Company.