COMMENTARY
or from any other source, which is under
Female Intestate Succession
under Hindu Law
Finally, Hope!
Ayushi Singhal
Gender equality often stands
compromised in various
personal laws in India, with the
legislature’s history of having
a non-interfering attitude in
amending discriminatory
personal laws—in order to avoid
compromising on their political
vote bank—unless rebuked by the
judiciary. This article discusses
one such admonishment by
the courts, a rather progressive
development, declaring a
part of the female intestate
succession scheme under the
Hindu Succession Act, 1956 as
unconstitutional.
Ayushi Singhal (ayushisinghal@nujs.edu) is a
student at the West Bengal National University
of Juridical Sciences, Kolkata.
Economic & Political Weekly EPW MARCH 12, 2016
U
nder the present legal system of
India, people are governed by the
personal laws of their religion in
matters of inheritance, marriage, sepa-
ration, guardianship, etc. Succession in
Hindus is governed by the Hindu Succes-
sion Act (HSA), 1956. A peculiar fact about
this act is that it differentiates between
men and women in matters of intestate
succession. Female intestate succession
is dependent on the source from which the
deceased female received the property.
This article, after critiquing the act as it
stands (it being discriminatory and, there-
fore, unconstitutional), discusses the de-
velopment in the law brought in by a
Bombay High Court decision, which will
hopefully be affirmed by the larger bench,
putting an end to the present manner of
female intestate succession among Hindus.
The HSA slots property of a Hindu
female under three categories: namely,
property inherited by a female from her
father or mother, property inherited
from her husband or father-in-law, and
properties that are not governed by the
first two categories. No other personal
law makes such discrimination. Section
15, along with Section 16, of the HSA stip-
ulates the general rule for succession of
all kinds of properties and states that
property will pass on to the children (or
if children predeceased the female, to
the predeceased children’s children) and
the husband. However, in case there is
no such successor, the first kind of prop-
erty will be inherited by the heirs of her
father, while the second kind will be
bequeathed to the husband’s heirs.
Perhaps, the intention behind the
legislation was that property should go
back to the source from which it was
received. It is the succession procedure
of the third kind of property, which
includes self-acquired properties or
properties received in any other manner
vol lI no 11
question in this article. Section 15(1)
of the act provides that such property
in intestate succession should go to:
(a) first, upon the sons and daughters
(including the children of any prede-
ceased son or daughter) and the hus-
band; (b) second, upon the heirs of the
husband; (c) third, upon the mother
and father; (d) fourth, upon the heirs of
the father; and (e) last, upon the heirs
of the mother.
Self-acquired Properties
The discriminatory nature of this law
can be understood using the case of
Omprakash and Others v Radhacharan
and Others (2009). The case pertains to
Narayani Devi, after whose death there
was a dispute regarding the succession
of her properties. Ramkishori, Narayani’s
mother, filed an application for grant of
succession certificate under Section 372
of the Indian Succession Act, 1925. The
respondents, who were the brothers of
Narayani’s husband, also filed a similar
application to get the succession of Naray-
ani’s self-acquired properties. To under-
stand the complication in the situation,
it is important to know the background
of the way the properties were acquired.
Narayani’s husband died of a snake
bite soon after their marriage. She was
then thrown out of her matrimonial
place by her in-laws, who were the
respondents here. They never enquired
about her for the 42 years she stayed in
her parent’s place after the husband’s
death. She was educated by her parents
and subsequently gained a well-paid job.
She left behind substantial assets, includ-
ing bank accounts, provident funds and
land; Narayani died without leaving a
will. The judges held that sentiments
and sympathy cannot be a guiding prin-
ciple to determine the interpretation of
law and it should not be interpreted in a
manner that was not envisaged by the
legislature. The Supreme Court ruled that
the HSA specifically mentioned that the
self-acquired properties will pass on to
the husband’s heirs if the deceased did
not have any children and husband.
It is understandable that the Court
could not have gone beyond the intention
of the legislation. However, the Court did
15
COMMENTARY
not give full effect to what Parliament
intended. The argument of the advocate
for Narayani’s mother holds weight in this
regard. The lawyer argued that since the
intent1 of Parliament while introducing
the said section was to send the property
back to the source and not to a stranger,
it is logical that since, here, the property
was earned via the money spent by
Narayani’s parents, it should be returned
to them. The Court did not accept this
reasoning. It should be noticed that suc-
cession laws are about not only who
should be entitled to the property, but
also who should be disentitled. Principles
of Hindu Law (Mulla 2013: 1195) also
observes that Section 15(2) of the HSA is
based on the grounds that property should
not pass to the individual “whom justice
would require it should not pass.” Here,
the Court granted the property to the
very people who behaved cruelly with
the deceased and did not maintain the
relationship when she needed it the most.
As argued by Poonam Pradhan Saxena
(2011: 372), the Court should have denied
them the locus standi of asking for the
property of a person whom they had dis-
regarded for more than four decades.
Support for the above argument can be
drawn from Section 25 of the HSA, where
a murderer is disqualified from inherit-
ing the property of his/her victim .
On the other hand, Section 8 of the
act, which deals with succession in the
case of males, gives precedence to blood
relatives over the relationships arising
out of marriage. This prejudiced scheme
of the act is evidently ultra vires of the
Constitution since the rules for males
and females in the act are different and,
thus, they discriminate only on the basis
of gender, which is prohibited under
Article 15(1) of the Constitution.
In contrast to the Parsi, Muslim or
Christian personal laws, where a woman’s
blood relatives can claim precedence over
her husband or her husband’s relatives,
the HSA relegates blood relations of a
Hindu woman to an inferior position vis-
à-vis her husband’s heirs. This leads to a
situation where a woman’s relatives from
her parent’s side will never be able to
inherit her property when the husband
has an heir, however remotely related.
Marriage does not make a difference to
16
the way a man’s property is inherited.
This is a result of the thinking that a
woman has no family of her own; she
lives either in her husband’s family or
that of her father’s. The woman is treated
not as an independent individual capable
of transferring her property to her blood
relatives, but as an adjunct to her husband.
The law is also a carry-over of the dis-
carded view that the woman has a limited
stake in the property. This view, which
was sought to be removed by Section
14(1) of the HSA, still clearly lingers in
the scheme of succession.
Juridical Challenge to Constitution
However, the Bombay High Court deci-
sion in Mamta Dinesh Vakil v Bansi S
Wadhwa (2012) has tried to change the
position in this respect. The case, a regu-
lar female intestate succession issue, how-
ever, is one of the few to challenge the
constitutionality of the law as it stands
today. To understand the basis of the
judgment, one needs to understand the
principles on which affirmative discrim-
ination is made in the law.
Under Article 15(1) of the Constitution,
there cannot be discrimination “against
any citizen on grounds only of religion,
race, caste, sex, place of birth or any of
them.” This being the case, discrimina-
tion based only on the above grounds is
unconstitutional, but not the one which
is based on the above factors coupled
with some other criteria like social and
educational backwardness. Taking this
argument further, it was argued in the
Mamta Dinesh Vakil case that the
inequality which exists in Section 15(1) of
the act is not based on gender alone, but
also on family ties. Building it further, it
was said
that the woman, upon marriage, goes into the
family of her husband; the converse is not
true. A woman gives up her maternal/pater-
nal ties upon her marriage and assumes mari-
tal ties. Hence, intestate succession for Hindus
takes into account this ground reality.
It was argued that it is considering this
reality that the legislature has provided
for the heirs of the husband in the wom-
an’s property.
It needs to be noticed that the constitu-
tional validity of the section in question
was also brought to the judiciary in an
earlier case of Sonubai Yeshwant Jadhav
MARCH 12, 2016
v Bala Govinda Yadav (1983). It was held
there that
the object of the legislation was to retain
property with the joint family upon marriage
which brought males and females together
forming one institution. It, therefore, accepted
that in recognition of that position when the
wife’s succession opened, the class known as
heirs of the husband were permitted to suc-
ceed as a result of initial unity in marriage
upon which the female merged in the family
of her husband (Mamta Dinesh Vakil v Bansi
S Wadhwa 2012).
The court, in the Mamta Dinesh Vakil
case, rejected this argument and added
that the discrimination in the section is
only based on gender and not on family
ties. The court analysed the succession
scheme of the male intestates under the
HSA to check the viability of the argument.
It noticed that keeping the property with-
in the family was not being envisaged.
Otherwise, the property of a male Hindu
would not be inherited by daughters,
sister’s sons and sister’s daughters. It was
thus observed that the only basis of this
classification was gender. It was further
concluded that the section is extremely
discriminatory inasmuch as the female’s
property, even if self-acquired, is not
inherited by her core heirs. Further, a
Hindu female, “who would otherwise
hope to succeed to an estate of another
Hindu female as an heir would receive
setback from the distant relatives of the
husband of the deceased not even known
to her or contemplated by her to be her
competitors.” Therefore, the section is
ultra vires of the scheme of the Constitu-
tion and hence invalid.
Towards Change
The issue that the judiciary should not
interfere in personal laws was also
brought up. The court considered that it
will be a blemish, even when Hindu society
was thriving towards gender equality,
that the succession laws discriminate. It
was said that a legislation that discrimi-
nates only on the basis of gender can be
questioned, as was done when Sections 10
and 34 of the Indian Divorce Act, 1869
were amended (in the cases of Ammini E J
And Etc v Union of India and Others [1995]
and N Sarada Mani v G Alexander and
Anr [1998]). Moreover, there have been
progressive changes in the Hindu law
vol lI no 11 EPW Economic & Political Weekly

itself, for example, the amendment2 in
Section 6 giving women equal coparce-
nary rights3 and deletion of Section 23,
which deprived women of sharing the
dwelling house. It was recognised that
although there can be different laws for
different religions, there cannot be dif-
ferent laws for different sexes and, thus,
the judiciary has a right to interfere in
the latter case.
Although a magnum opus, the judg-
ment of the Mamta Dinesh Vakil case has
been passed by a single bench of the
high court and needs to be affirmed by
the division bench. Once it is so done, it
will be a watershed judgment to bring in
equality in the Hindu law. Once declared
unconstitutional, the government can
use the recommendations of the 207th
Law Commission Report, 2008 to bring
reforms in the law. The report suggests
Economic & Political Weekly EPW MARCH 12, 2016
two options, one of bringing the inte-
state succession laws in parity with the
males, and the other of dividing the
property equally among the matrimonial
and natal heirs, taking into note the
ground reality that the woman ultimately
leaves her natal place and works under
the constant support of her in-laws.
Either of these options will be progressive
changes in the Hindu law.
notes
1 See paragraph 21 in S R Srinivasa and Others v
S Padmavathamma (2010).
2 The Hindu Succession (Amendment) Act, 2005,
available at http://www.hrln.org/admin/is-
sue/subpdf/HSA_Amendment_2005.pdf.
3 See Prakash and Others v Phulavati and Others
(2016), holding that the amendment is also
retrospectively applicable; and Sujata Sharma
v Manu Gupta (2015), reaffirming the amend-
ment’s spirit and ruling that the provision of
equal coparcenary rights to women in the
Hindu Undivided Family results in allowing
vol lI no 11
COMMENTARY
them to become the karta (manager) of the
Hindu Undivided Family as well.
References
Ammini E J and Etc v Union of India and Others
(1995): AIR, Kerala, p 252, http://indianka-
noon.org/doc/1591531/.
Mamta Dinesh Vakil v Bansi S Wadhwa (2012): Bom
CR, 6, p 767.
Mulla, Dinshaw Fardunji (2013): Principles of Hindu
Law, 21st edition, Satyajeet A Desai (ed), New
Delhi: LexisNexis.
N Sarada Mani v G Alexander and Anr (1998): AIR,
AP, p 157, http://indiankanoon.org/doc/850953/.
Omprakash and Others v Radhacharan and Others
(2009): SCC, SC, 15, p 66, http://indiankanoon.
org/doc/1651663/.http://indiankanoon.org/d-
oc/557892/.
Prakash and Others v Phulavati and Others (2016):
SCC, 2, p 36.
S R Srinivasa and Others v S Padmavathamma
(2010): SCC, SC, 5, p 274, http://indiankanoon.
org/doc/1271827/.
Saxena, Poonam Pradhan (2011): Family Law Lectures:
Family Law II, 3rd edition, New Delhi: LexisNexis.
Sonubai Yeshwant Jadhav v Bala Govinda Yadav
(1983): AIR, Bombay, p 156,
Sujata Sharma v Manu Gupta (2015): SCC OnLine,
Del, p 14424.
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