Since the ancient period of time women are made to believe that how their status in society comes at the bottom and in that matter of man it comes at the rim of the glass. But if we look back foe not more than a two decades the idea of gender – neutrality has been given rise and through this development the society have seen a lot of changes for women in few years. But there are still some places where women need to fight for their rights and had a long way to go.
They’re always a time when every family at a point had to discuss about succession of property but women are not considered to be a part of this discussion. “The patriarchal arrangement of society makes a women believe she has no permanent family of her own, in contrast when it comes to man marriage there is no noticeable change in the husband’s family”.
The discrimination in Hindu Succession Act 1956 gives an idea how not only society but some where laws also systemically support male supremacy. The different rules for devolution of property for men and women gives priority to men family and women family gets least importance which makes it very unfair.
Professor Williams’ article says: “But to the extent the law of the public world must be reconstructed to reflect the needs and values of both sexes change must be sought from legislatures rather than courts. And women whose separate experience has not been adequately registered… are the ones who must seek the change.” It is time that this law is made gender-balanced.
Gender neutrality will not be enough if it merely maintains the status quo which is nothing but the perpetuation of gender discrimination. Women need and must have affirmation of equality in society and under law. Back in 2005 when women were given equal rights to inherit ancestral property brought a ray where women were made equal to men in scenario of property but was the amendment enough where other provision of same act make it discriminatory foe women who earn her own property but her own family had to stand at tale of line to inherit it.
India fails to have a uniform civil court because of which every religion follows its own personal law for their property devolution, not only different religious group but sub – groups have their own local custom and norms with their property rights, Hindu, Sikh, Buddhist, and Jain follow one code of property which is codified under Hindu Succession Act 1956, Christian follow another code and Muslims have not codified their property rights neither in Sunnis and Shias.
As per Indian constitution, both center and state have rights to make laws on succession of property and we have states which lay example in front Hindu Succession Act as they are more gender neutral, for example Indian legislation such the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 (GSSNIP) and Indian Succession Act, 1925 (ISA).
The provisions of Hindu Succession Act not only discriminatory but also unconstitutional as it clearly denies equality which is provided under article 14 and 15 which prohibits discrimination under every possible ground including sex.
FEMALE HINDU DYING INTESTATE
The word “INTESTATE” means person dies without writing a will for property he / she owned or inherited. the court then handles the deceased’s assets through the intestate succession statute of the state. The succession act determines the eligible heirs to inherit and provisions for how are they qualified to inherit the assets of the deceased person.
Section 15 and 16 of Hindu Succession Act lay down rules for absolute property of a female, the property which can be inherited and to which women had full power of disposal are mention in this section. Since section 16 basically mention only enabling provisions we will only try to understand section 15 and why is it not gender neutral.
The difference in rules for succession makes it clear that how old Hindu law believes man of the house should have major ownership in regards with property and female of the house has been considered not the right person to do so same as man of the house. this orthodox behaviour of old Hindu law is discriminatory for women who die without writing a will or was a widow.
The Hindu female property is divided into three parts, firstly the property inherited by her father or mother. secondly property inherited by her husband or father-in-law, thirdly the property obtained by other sources.
Section 15 has two sub section, Section 15(1) talks about the property which is not inherited by her parents or her in-laws or husband rather it should be gift, will, settlement, prescription, in form of consideration or it can purchase. According to judgement in case Meyappa v. Kannappa. the property which is gifted by her father will include under section 15(1) and not in section 15(2). Also, if the property inherited by from her bother or brother-in-law in the relation of being sister or sister-in-law or wife of deceased brother that property will also be included in section15 (1). Section 15(2) includes all the property which the female inherits from her parents or the property inherited by her husband or father in-law.
Section 15 (1) is divided into five clauses,
clause (a) sons and daughters, sons and daughters of a predeceased son or daughter ie. grandchildren, and the husband. In this clause it is mentioned that the property will be equally divided within the mentioned relation. The share of predeceased son or daughter will be exactly same as much their father or mother would have taken if were alive at the time of the death of the intestate. Under high court judgement it wase stated that an adoptive mother cannot be deprived of her right to dispose of her separate property by transfer or will that she possesses if she has adopted a son. Thus, such relief the widow or the adoptive mother of the suit property which vested in her by succession on the death of her husband.
Under clause (b) secondly, upon the heirs of the husband, if in the absence of children and husband then the property passes to the mentioned relation, the widow of predeceased son, widow of deceased brother-in-law, sister-in-law, or any remote cousin of husband would fall in the category of heirs of husband.
Let’s put some light on most underrated fact that heirs of husband are considered as the close relation of a widow rather than her own brother sister or blood relation family. The blood relation of female deceased is given the least priority and placed at the last even after remote cousin of husband.
thirdly, clause (c)upon the father and mother, after giving foremost preference to heir of husband than comes the parents of intestate female, step father or mother are not included in this but adoptive mother/father is included.
Under clause (d) upon the heirs of the father, in the absence of father than its time for heir of father, the category will include brothers and sisters including half-blood brothers/sisters and their descendants, grandparents and other natal relations.
Under clause (e) lastly comes the heir of the mother, Heirs of the mother do not mean ‘all persons who could have been the heirs of such mother.’ The category will include the uterine brother/sister and their descendants. Point to be noted even in the line of inheriting property from female intestate to her family the place of mother heir comes at last after the heir of father.
Omprakash and Others Vs. Radhacharan and Others this case will make you believe why and how section 15 of Hindu succession act 1956 made it difficult not possible for supreme court of to deliver justice to the mother of intestate female, and mother claim was not on sympathy or sentiments but purely on logic, facts and fairness. “When Narayani Devi got married in the year 1955 and moved into her matrimonial home. Her husband died within three months of marriage. The marital family banished Narayani Devi from the matrimonial home. She returned to her parents, who supported her and provided her an education in the succeeding years. So equipped, Narayani Devi, over 40 years, gradually amassed substantial property. She died childless in 1996, the sole owner of various bank accounts, provident funds and land. Her mother claimed the right to inherit her property, but the claim was challenged by the brothers of Narayani’s late husband”.
The SC considered the case as “HARD CASE” and stated Section 15(1) lays down the ordinary rule of succession; Section 15(2)(a) only carves out an exception to Section 15(1). It observed that the law is silent on a Hindu woman’s self-acquired property, and such property cannot be considered as property inherited from her parents. The court said: “This is a hard case… But then only because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision, which is otherwise impermissible. It is now a well settled principle in law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous.”
This injustice would have not taken place if our laws were gender-neutral and not gender biased. Justice Dalvi once said “The egalitarian bluestocking that the Hindu society may have become, in consonance with the constitutional mandate, it has still left untouched perhaps the last discriminatory corner of the Hindu Society which has otherwise come of age and which would have to be looked upon as wanting in an equal society.” this injustice was delivered just because narayani devi was Hindu female and not a Christian or Parsi or Jew under Indian succession act 1925.
Justice A.M. Bhattacharjee wrote thus in Modern Hindu Law Under Constitution: “Under the provision of Section 15(1) read with sub-section (2) in the absence of children, the order of succession in the case of a female Hindu would vary according to the source of acquisition of property.” He asked why the source of acquisition should be a determinant in the case of a Hindu woman when it is not so in the case of a Hindu man. “Unless we still want to perpetuate in a somewhat different form the old outmoded view that ownership of property cannot be full but must be somewhat limited.”
Biasedness of section 8
It’s quite evident from above explanation that section 15 of Hindu succession Act 1956 is discriminatory towards female intestate.
Under section 8 it talks about devolution of property of male intestate. The succession of property under this section classifies under classes, section 8 (a) talks about class I which consist of Broadly this includes the wife, mother, children, and children of pre-deceased children. Then under clause (b) sates class II if not class I than comes class II which include Class II heirs are further divided into nine sub-categories. The heirs at each level in this hierarchy exclude the heirs featuring below them from inheriting any property. The Class II heirs featuring at the top of the hierarchy include the father of the deceased, the deceased’s siblings, the sibling’s children, and the grandparents of the deceased. Provision of clause (b) clearly prioritize the family of man rather than his wife family. Clause (c) states if class I and class II are unavailable to inherit the property then agnates are valid candidate to inherit property. Clause (d) if there is no one to qualify as agnates then lastly it the turn for cognates of the deceased to inherit the property. Through the explanation of Provision in clause c and d made point black supports for hegemony of man and clearly shut eyes towards wife’s family.
Unabridged of already described above sections and provision mentioned under HINDU SUCCESSION ACT 1956 is prejudiced only toward the family of male hid blood relations their spouses and children without even considering his wife natal family which is never in position to inherit property of male under devolution of property of male but in case to female devolution of property of belonging to women is totally contradict because the husband heirs are given preference way before women’s parents or siblings.