Intestate Succession to the Property of a Hindu Female

This article was written by Sweta Pochiraju a student of National Law University, Delhi

Introduction

Women’s property right is a significant issue that has been brought in light in the past few decades. In India, property and succession are governed mostly by personal and religious laws, which mean that they tend to conform to older patriarchal norms and family structures. As a result, a number of personal laws inherently promote inequality between genders and are discriminatory towards women. Recently, many such personal laws are being re-evaluated from a feminist perspective and amended to become more gender-neutral and inclusive.

The Hindu Succession Act, 1956, is the statute which comprehensively covers all matters relating to the intestate and unwilled succession of Hindus. This act has undergone a number of amendments in recent years- including daughters to become coparceners, giving them a right to a share in the joint family property and abolition of a number of outdated doctrines. These are certainly indicative steps towards gender equality, but there still remain many aspects of Hindu succession law that are patriarchal and are in pressing need of amendment.

Section 15 of HSA, 1956

One such aspect is Section 15 and 16 of the Hindu Succession Act, 1956. These two sections cover the manner in which property of a Hindu female is to devolve upon her heirs, in case of her dying intestate. Section 15(1) lays down a clear list of heirs in order of preference. It reads as follows-

(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16 :

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

As evident, the section provides a clear and rigid hierarchy of who is entitled to inherit the property of the female. An heir higher on the list will always be preferred to those below. While rules governing intestate succession are admittedly often unable to take into account specific circumstances, due to being impersonal and generalized by nature, there are three inherent problems in this sequential list that will be dealt with presently.

1. Depriving Parents of Property

The first issue is obvious on the face of it; the heirs of the husband are placed higher in the hierarchical order than the mother and father of the deceased female. This is a painfully adept reflection of dominant patriarchal norms. The family into which the woman entered upon marriage is given more importance than the family of her birth. There is no flexibility in these rules. The parents are often forced to give in to the claim of the blood relations of the deceased husband. There are a number of cases which can help put this issue into even better perspective, and help us understand how problematic it is.

Omprakash v. Radhacharan (2009) was a case decided by the Supreme Court. The female in question lost her husband and was widowed within three months of her marriage. After her husband’s death, she was also driven out of the matrimonial home by her husband’s blood relations. She then returned to her parental home and her parents funded her education, following which she obtained employment and became self-sufficient. At the time of her death, the deceased female possessed a substantial sum of money which she had earned after leaving her husband’s home. However, upon her death, her husband’s sisters placed a claim to her property.

The Supreme Court considered Section 15 carefully. They accepted that the property of the female was entirely self-acquired and also that the family of the husband had neither contributed to her education, nor lent her any support during her lifetime. Yet, the judges refused to deviate from the established law. The Supreme Court stated that ‘only because a case appears to be hard would not lead us to invoke different interpretation of a statute which is otherwise impermissible.’ The heirs of the husband were granted the property.

There can be no question that both logic and sympathy dictated that the deceased’s parents should have had a right to the property of the daughter whose education they funded rather than the family who had evicted her once she became widow. The deceased’s intention could not have possibly been that the husband’s family would acquire her property, but the law forced the same upon her. One must also consider that in present society, an increasing number of elderly parents are entirely dependent upon their earning daughters. In contrast, it seems unlikely that the husband’s heirs are financially dependent on the female. Such a rigid and patriarchal rule clearly has the potential to blatantly violate the wishes of the deceased.

The 207^th Law Commission Report points out why this anomaly could have occurred- the statute simply does not contemplate self-acquired property. The legislators of 1956 merely never considered that females would be in possession of self-acquired property and that this property could devolve upon the heirs of the husband against the sentiments of the deceased. This outdated law based on patriarchal notions is clearly in need of change.

2. Source of Acquisition

We will now deal with Section 15(2) of the HSA. While 15(1) lays down a hierarchy, there are two exceptions put forth to the same, based on the source of acquisition of the property. Section 15(2) reads-

(2) Notwithstanding anything contained in sub-section (1)-

(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 heirs of the father; and

(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 predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.

The law laid down by this is quite simple; in the absence of any son or daughter, property inherited from the parents shall pass to the heirs of the father, and property inherited from the matrimonial relations will pass to the heirs of the husband. Therefore, the property reverts to the same line or family from which it came, to prevent it from passing into the hands of persons ‘whom justice would demand they should not pass’.

Hence, the first and foremost consideration for the devolution of a female’s property is the source from which she acquired it. It is irrelevant that she has the full and absolute right over the property; it must still pass to heirs in the same family from where she acquired it. The patriarchal norms in this are only made clear when the provisions of Section 15(2) are compared with Section 8.

Section 8 of the HSA is the male counterpart for Section 15. It provides for the same thing; the hierarchy of heirs in case of an intestate death, but in the case of deceased males. Section 8 reads as under-

The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased.

In this case, it was the 174^th Law Commission Report which pointed out that the law governing females is markedly different from that of males. Section 8 does not refer to the source of acquisition of the property. Whether the property was inherited from a particular side of the family or whether it was even inherited at all is completely irrelevant to its intestate devolution. The property belongs to the male, and it passes on to his heirs, as is normal.

The source of acquisition is not even remotely considered in the devolution of the property of a male, but is the very basis of the devolution of a female’s property. This, again, signifies the patriarchal assumption. Despite claiming that the property of a female is her absolute property, the law does not seem to reflect the same values. The property inherited by her is not free of its prior connections.

3. Father over Mother

The final issue with Section 15 is one which has received relatively less attention from the Law Commission and major cases; perhaps because patriarchy is so internalized in those making and following the law that it is rarely questioned. A closer look at this portion of Section 15(1) reveals the following-

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

The issue is evident. The heirs of the father are given priority over the heirs of the mother. There is no logical reason for this; just as in the issue of husband’s heirs being given priority over the parents, there are a number of circumstances where this could cause unpleasant situations. The father could have been absent or even abandoned the mother and the female to themselves, but his heirs would still have a claim over the deceased female’s property. The very notion that father’s heirs deserve priority over a mother’s stems from the same patriarchy that brought this troublesome section about.

Conclusion

Several Law Commission Reports and case laws have recognized that the present law relating to the devolution of the property of a female intestate is patriarchal and violates the very notion of gender equality. Hence, while we can celebrate recent decisions and amendments allowing daughters to be coparceners in joint family property and females to be kartas of the family, we must admit that Hindu property law has a long way to go before it can be considered to be truly gender-neutral and promote equality between sexes.