INTRODUCTION
The Hindu Succession Act of 1956 (hereinafter, referred to as “the Act), one of the five codifications of Hindu law, was passed after a decade of debate and deliberations on the erstwhile Hindu Code Bill. Due to various social and political factors, the lawmakers made a law with some revolutionary changes while continuing to appease the conservatives through the retention of some of the more patriarchal features of the older uncodified Hindu laws, such as the concept of the Hindu Joint family. The 2005 Amendment Act, mainly removed two of the major hindrances to the right to equality for women, by abolishing the concept of devolution of property by survivorship and introducing daughters as coparceners. Section 15 of the Act gives the general rules of succession in case of female Hindus. In this article, I point out how Section 15 of this Act has hugely disadvantaged Hindu women and their family members. I argue that this provision violates Articles 14 and 15 of the Indian Constitution and also goes against the principles of equity, justice and good conscience, thus giving rise to a need for further amendment. Finally, I propose a new scheme of inheritance which can apply to Section 15.
UNCONSTITUTIONALITY OF SECTION 15
Based on proximity of relationships, the Act has provisions for the inheritance of property of the male and female intestate. While Sections 8 to 13 deal with the inheritance of property of a male intestate, Sections 15 and 16 deal with that of a female intestate. In the case of a male intestate, the mother is a primary heir (members upon whom the property shall devolve in the first instance) falling under the Class I category of heirs (refer to Schedule of Act) and would thus receive property in shares equal to the other primary heirs, as mentioned in the Schedule of the Act. The father, however, either gets no property, or gets all the property of the male intestate, and therefore, has a unique position. In case any of the Class I heirs is present, the father does not receive the property, but in the absence of all the Class I heirs, the father inherits the entire property to the exclusion of all other Class II heirs. In conclusion, both the parents have equal, if not more, chance than the heirs of the wife, for inheriting the property of the male intestate.
Compared to this provision, when one checks the scheme of inheritance of a Hindu female intestate, the property of the female has been divided into 3 categories – (i) property inherited from her parents, (ii) inherited from her husband or father-in-law or (iii) general property (received through gift, will, consideration or self-acquisition or inheritance from other relations). Parents are in Entry 3 of Section 15(1), which as per Section 16 means, that they would inherit the property only if Entries 1 and 2 are absent. Assuming Entry 1 (son, daughter and husband) is absent, Entry 2 (heirs of the husband) will be preferred and once again, the scheme of inheritance of Section 8 will be applicable to determine the order in which they would receive the property. Only if all the 4 categories of heirs given in the Schedule (Class I, Class II, agnates, and cognates) are absent, the property of the female intestate shall be inherited by her parents who are in Entry 3 of Section 15. Practically, it is next to impossible for the parents of the female intestate to receive the property of their daughter who died intestate. This provision, thus, goes against the right to equality, as there is a different order of inheritance for Hindu male and female intestate.
This scheme of inheritance also violates Article 15 of the Constitution, as it discriminates the order of inheritance of a female intestate, solely based on her sex. One can only assume that the reason behind this difference between Sections 8 and 15 was to preserve the traditional laws of the conservatives, where women were inferior to men, and accordingly not supposed to own property, let alone, bequeath them by inheritance. However, it is still unclear why the 2005 Amendment Act, which aimed to eliminate survivorship, did not attempt to amend and bring Section 15 in line with Section 8. The same issue has been raised in the case of Kamal Anant Khopkar v. UOI, where the Apex Court gave three months to the Central Government to give a response. The response came in more than three years later, backing the constitutionality of Section 15 using a 2009 case of the Supreme Court of India, which shall be discussed hereafter.
In the 2009 case of Omprakash v. Radhacharan, a widow was forced to leave her matrimonial home just three months after her marriage, following the death of her husband. For 42 years, she lived with her parents and cut ties with her in-laws. When she died intestate, her husband’s heirs were given the right to inherit all her assets. The Court’s reasoning was that sentiment or sympathy alone cannot be the guiding factor in determining the rights of the parties which otherwise appear to be clear. A strict interpretation of Section 15 of the Act, like this, violated the rights of equality and against discrimination, of the female intestate.
Not only Section 15(1) but also 15(2)(a) violates Articles 14 and 15 of the Indian Constitution, as it prefers the heirs of the father over that of the mother. The same had been pointed out in the 174th Report of the Law Commission of India. In case, a property is inherited by the female intestate from her parents, it should (in the absence of her children), as per the doctrine of reversion, go back to both the mother and the father, and not just the heirs of the father. This doctrine was prevalent in older Hindu law, where the limited estate of the widow would go to the reversioners rather than the heir; Section 15(2)(a) demonstrates the same, but excludes the heirs of the mother. As per this provision, even if the female intestate inherits property from her mother, it is in turn inherited by her father or his heirs after her death. It is an arbitrary provision, with no sound logic behind its legislation. In Bhagat Ram v. Teja Singh, while deciding between the appellant heirs of the father and respondent heirs of the husband, the Court emphasised on the source of receiving the property by the female intestate. Logically going by this principle, if the intestate daughter inherits property from her mother, then 15(2)(a) would be applicable, and it should devolve upon the heirs of the mother, instead of the father.
JUDICIAL REASONING BEHIND ITS VALIDITY
In Anima Das v. Samaresh Majumdar, the Guwahati High Court followed the ratio of the Omprakash judgement and held that it cannot grant relief by going against the edict of the law. In Sonubai Yeshwant Jadhay v. Bala Govinda Yadav, the Bombay High Court while dealing with Section 15(2), upheld its constitutionality and reasoned that since laws are meant to achieve specific objectives, attaining absolute equality or uniformity is impossible. Further, the Court held that if persons of two groups are rationally classified, and such classification is evidence of the long-standing stance of the personal law, then such differential treatment would not result in discrimination. The reasoning used is fallacious, as the same can be used by any and every Court to prevent the reform or amendment of laws, by relying on the age-old prevailing customs of personal laws. The sole reason why the legislature or the judiciary intervenes is to ensure that prevailing laws do not unjustly enrich one category of person while disadvantaging the other category.
In the same case, the Court also reasoned why the heirs of the husband are preferred, by once again relying on the Shastric laws – to maintain the unity in the family which was formed due to the marriage, and to continue the succession in the family. The manner by which this reasoning goes against the principles of justice will be discussed in the next section.
VIOLATION OF JUSTICE, EQUITY AND GOOD CONSCIENCE
On a closer look at the uncodified Hindu laws, it is easily understandable that the concept of Saudayika (received from parents or husband) and non-Saudayika (received from non-relations), i.e., categories of Stridhan, and the concept of non-Stridhan (over which she had limited estate) were much more equitable than the current Section 15 of the Act. When the females inherited their property from her parents and relatives, she had absolute power of disposal, while she was a limited owner only in case of property which was non-Saudayika and non-Stridhan. Although, in the present Act as well, the female intestate has absolute power of disposal through testamentary succession, it is the intestate succession of the self-acquired property which is problematic. Moreover, with changing order of familial structures, modern-day Courts relying on older uncodified laws bring dangerous precedents.
Courts in India are supposed to settle disputes based on the principles of justice, equity, and good conscience, only in the absence of statutory or personal law. As the law is silent about the devolution of self-acquired property of the female intestate, Courts should apply the principles of equity, and ensure that they devolve along the same lines as Section 8 of the Act. The Courts must also ensure that these principles are followed in cases where the law, although present, is glaringly arbitrary and provides for inequality. In State of West Bengal v. Anwar Ali Sarkar, the Apex Court had held that the operation of Article 14 would not be excluded merely because the legislature had no intention to discriminate, although the consequence of the Act shows discrimination. The same principle can also be used to amend Section 15(2)(a) as well.
CONCLUSION
To avoid any further repetition of what happened in Omprakash, I propose a new scheme for the devolution of property by Section 15. The Act should be amended, and Section 15 can be made coterminous to Section 8, with the only difference being the sex of the intestate, and not the order or source of inheritance. Alternatively, Section 15 can be amended, such that in Section 15(1), the mother, father and the Class I heirs of the husband inherit the property in equal shares, under Entry 2, followed by the rest of the heirs of the husband (which as per Section 8, constitute class II heirs, agnates and cognates), and in Section 15(2)(a), depending on the source, the heirs of the mother and father receive the property of the female intestate. This would accordingly fulfil the doctrine of reversion as well. Having given complete ownership of the property to Hindu women as late as in 1956, the legislature or the judiciary for the matter, must not delay further in ensuring equality in disposing of the property of the female intestate either. It is hoped that the Supreme Court decides in favour of an amendment to Section 15 in the case of Kamal Anant.
The author is a student of NALSAR University of Law, Hyderabad
Image Credits: Housing.com
Constitutional Law Society 
Leave a comment