“There is no tool for development as powerful as the empowerment of women” – Kofi Annan
Through this paper, we want to analyse the constitutional validity of various provisions of the Hindu Succession Act, 1956, which is a personal law applicable to the Hindu citizens of India. We have attempted to briefly explain how the flaws in the said Act pose a constitutional challenge, and have also tried arriving at a solution for the same.
Personal laws are laws that are governed by the religious beliefs of India, which are applicable to citizens following that particular religion. The Supreme Court has agreed that these personal laws come within the term of ‘laws’.
In the case of Narsingh Pratap Deo v. State of Orissa, the Supreme Court stated that although the law is not easily defined by scholars, the main characters and features are well known, and that in a broad sense, ‘laws usually include a set of rules which have been enacted for ascertaining legal rights and legal obligations which are accepted by the courts of India’. Personal laws possess the above mentioned characteristics; hence they should come under the definition of the term ‘law’.
In the case of Sant Ram v. Labh Singh, a Constitutional Bench of the Supreme Court observed that because a custom is also declared void for the same reasons as a statute is, it gets affected by Part III of the Constitution. Since these customs have legal enforceability, the definition of ‘laws in force’ would include these customs.
‘Personal laws’ include both codified and uncodified laws. It therefore cannot be disputed that personal laws come under the definition of laws as mentioned in Articles 13 and 372 of the Constitution. These laws will continue to be functioning as long as they are stuck unconstitutional or treated as void under Article 13.
As per Articles 13 and 372 of the Constitution of India, if there is any law which is found to be in contravention of Part III of the Constitution, then such law will be struck down. Based on this principle and a catena of judgments, it can be ideally inferred that when a personal law contravenes Part III of the Constitution, that law will be struck down. However, the Supreme Court has held differently in many judgments.
In Krishna Singh v Mathura Ahir, the Supreme Court clearly stated that Part III of the Constitution did not affect personal laws, as they were different from general laws and derived from ancient customs. The court held that Part III of the Constitution does not affect the personal laws of either of the parties. Judges cannot introduce their own concepts of modern times while applying the personal laws of the parties, but should instead interpret the law to be enforced in accordance with recognised and authoritative sources of Hindu law (like smritis and other commentaries), as interpreted by the various high courts in their varied judgments, unless such law has been amended by any operation, custom or revoked by statute.
In Masilamani Mudaiar v Idol of Sri Swaminatha swami Thirukoil, the Supreme Court held that personal laws, when they contravene the Constitution, should be held void to the extent of that contravention. The three judge bench stated that the basic structure of the Constitution propagates notions of equality of status and opportunity. The personal laws discriminating against women are repugnant to the ideas of equality. Personal laws derive their validity from the relevant religious scriptures and not from the Constitution. The laws thus derived must be consistent with the Constitution lest they become void under Article 13 if they violate fundamental rights.
Hence, it is unclear on whether courts can interfere in matters related to the constitutionality of provisions of personal laws.
Separate property of an individual devolves in two ways:
When a person dies without leaving a will, the court then manages the deceased’s estate through the intestate succession statute of the state. The assets belonging to the deceased then devolve onto his heirs. The state has predetermined rules on who the heirs of a person are, and those heirs are the only people qualified to receive these assets.
Testamentary succession refers to succession resulting from a legally executed testament. In simple words, it relates to persons leaving behind a will, when they die. This kind of succession grants the right of inheritance to the people mentioned by the testator. Succession by means of testamentary succession is determined and fixed at the time of the testators death.
In India, succession is governed according to the religion the decadent professes and is guided by the personal laws applicable to that religion – Hindus, of course, follow the Hindu Succession Act, 1956.
Though there is no legal definition of who a Hindu is, Section 2(1)(a) of the Hindu Succession Act, 1956, states whom the Hindu Succession Act applies to. However, the courts have, on various occasions tried to interpret who a Hindu is.
In the case of Bramchari Sidheshwar Bhai v State of West Bengal, the Supreme Court laid down the criteria for Hinduism. The court relied on its earlier decisions in enlisting the features of the Hindu religion as follows:
(i) Acceptance of the Vedas with reverence as the highest authority in religious and philosophic matter and acceptance with reverence of Vedas by Hindu thinkers and philosophers as the sole foundation of Hindu philosophy.
(ii) Spirit of tolerance and willingness to understand and appreciate the opponent’s point of view based on the realisation that truth was many-sided.
(iii) Acceptance of great world rhythm, vast period of creation, maintenance and dissolution follow each other in endless succession, by all six systems of Hindu philosophy.
(iv) Acceptance by all systems of Hindu philosophy the belief in rebirth and pre-existence.
(v) Recognition of the fact that the means or ways to salvation are many.
(vi) Realisation of the truth that Gods to be worshipped may be large, yet there be Hindus who do not believe in the worshipping of idols.
(vii) Unlike other religions or religious creeds, Hindu religion not being tied-down to any definite set of philosophic concepts, as such.
Bal Gangadhar Tilak defined the Hindu religion as “acceptance of Vedas with reverence; recognition of the fact that the means or ways to salvation are diverse; and realization of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of the Hindu religion”. The above definition has also been accepted by some of the Indian courts.
Clarifying the position of the status of Hindus with regards to conversion and re-conversion, the Supreme Court in a recent judgement, K.P Manu v Chairman, Scrutiny committee for verification of community certificate, has held that a person who was born as a Hindu, converted to another religion, then reconverts to Hinduism again, will be treated as a Hindu and avail all benefits available to his caste. The court laid down the main parameters for deciding whether or not a person who has converted from and reconverted back to Hinduism will be eligible to get the benefits a Hindu Dalit is entitled to:
1. First, there must be “absolutely clear-cut proof that he belongs to the caste that has been recognised by the Constitution (Scheduled Castes) Order, 1950.”
2. Second, it has to be established that there has been “re-conversion to the original religion to which the (person’s) parents and earlier generations had belonged.”
3. And third, there has to be “evidence establishing the acceptance by the community.”
Prior to the Hindu Succession Act, Hindus were governed by the various shastric and custom laws that varied in different regions.These laws would vary from region to region, and would differ even in the same region due to different castes. The ancient texts of dharmasthras and commentaries and legal treaties influenced the traditional Hindu inheritance laws. Amongst the Hindus, the inheritance practices are mostly governed by the Mitakshara and Dayabhaga legal doctorines. Dayabhaga and Mitakshara schools, which are both schools of medieval Hindu law, are built on the scriptures of the learned sage Manu, and though the approach adopted by both schools is wholly different, they are essentially different connotations of the same idea.
Mitakshara law is predominantly prevalent in most of northern and parts of western India. Under the Mitakshara law, on birth, the son acquires a right and interest in the family property. According to this school, coparceners would include a son, grandson and a great grandson born in the family. Mitakshara law does not recognise female members as a part of the coparcenery. Mitakshara law promulgates the concept of survivorship for the devolution of joint Hindu property . This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. The Mitakshara law does however allow inheritance by succession. This only applies to the property separately owned by an individual male or female. Women are allowed to inherit separate property under Mitakshara law.
Mitakshara and Dayabhaga schools of law only differ on the point of who a sapinda is.While both schools agree that the property should be inherited only by sapindas, they differ on their understanding of who a sapinda is. In the Dayabhaga school, any person who can offer pindas (balls of rice) during the funeral of the deceased would constitute a sapinda and hence can inherit the property. This definition of sapinda would also include cognates and female relatives, therefore allowing them to inherit coparcenery property.
The Mitakshara law also recognises the rights of succession of separately owned property under which even females were legal heirs of the property. However, the Dayabhaga School of law has only one mode of succession, irrespective of the kind of property.
The Parliament of India enacted the Hindu Succession Act in 1956. The object of the Act states that it was enacted to amend and codify the law relating to intestate succession among Hindus. The Act tries to bring an end the discrimination between sons and daughters followed in inheritance laws. It aims to integrate the Mitakshara and Dayabhaga schools of Hindu laws.
The Act establishes a uniform and comprehensive system of devolution of property that applies to persons governed by the Mitakshara and Dayabhaga schools, as well as those people who have been guided by the Murumakkattayam, Aliyasantana and Nambudri systems previously.
The Hindu Succession Act essentially codified Hindu personal laws because before this Act came into force, they were governed by shastric and customary laws which varied from region to region. Now, the Hindu Succession Act is a principal Act applicable to all Hindus in India.
In his introduction to 59th Law Commission of India Report, former Chief Justice of India Mr. P. B. Gajendragadkar observed: “It may sound platitudinous but is nevertheless true that revision of law is must in a dynamic society like ours, which is engaged on the adventure of creating a new social order founded on faith in the value system of socio – economic justice enshrined in our Constitution. With the changing times, notions of fairness and justice assume newer and wider dimensions and customs and beliefs of the people change. These in turn demand changes in the structure of law; every progressive must make a rational effort to meet these demands. Between the letter of the law and the prevailing customs and the dictates of the current value system accepted by the community, there should not be an unduly long gap.”
The Hindu Succession Act, 1956, originally didn’t give daughters equal rights to ancestral property. This disparity was removed by an amendment that came into force on September 9, 2005.
As discussed above, the Hindu Succession Act, 1956, was amended in 2005 by the Hindu Succession (Amendment) Act, 2005. This very Act was challenged in the Madras High Court, where the petitioner prayed to declare the Act ‘unconstitutional’ in the case of Mr. Dr. G. Krishnamurthy v Union of India.
The petitioner submitted that by the amendment made to Section 6, the entire concept of shastric and customary laws governing the Hindu law was sought to be overturned in one stroke. Upon the removal of Section 23, it is likely that a Hindu woman after remarriage would continue in the dwelling house wholly occupied by the members of a family of a Hindu intestate. Coming to Section 24, the petitioner submitted that by providing rights to the widows even after their remarriage to inherit the property of an intestate, the very fabric of the concept of a ‘Hindu joint family’ would be ‘destroyed’. The petitioner further submitted that there is a ‘discrepancy’ in Class-II of the Schedule as certain legal heirs of a male member have not been included.
The court held that there was no sufficient ground for declaring the Act ‘unconstitutional’ as argued by the respondent, and the enactment had been made to remove the discrimination against women. The amendment was therefore to ensure the protection of women under Articles 14, 15 and 16 of the Indian Constitution.
Coming to Section 23 of the Act, it had been omitted to remove the ‘disability on female heirs’. The said decision was made keeping the larger public purpose in mind. Since Section 23 of the Act was only a ‘disabling provision’, it had to be removed.
Section 24 of the Act once again created a ‘statutory discrimination’ against ‘widows remarrying qua inheritance’. This was rightly removed as a woman cannot be ‘non-suited’ to get a property on her remarriage.
The amendment to Class-I of the Schedule is only consequent upon the amendment made to Section 6. It only qualifies the heirs, who are entitled to a property as in Class-I in consonance with Section 6. Therefore, the challenge to the said inclusion made to Class-I of schedule was also rejected.
Whenever a statute is enacted promoting women’s rights, it is met with stiff resistance from the citizens of the country owing to the male-centric society. This case is one such instance. The Madras High Court has very strikingly, in a rare occurrence, overcome this obstacle.
The Madras High Court has rightly observed that each clause in the amending Act has been brought to bring about the protection and promotion of women’s rights, and has, in fact, been brought to destroy the discrimination present in the principal act.
Furthermore, even if the Act was worded in a manner prejudicial to men, that alone would not render the act unconstitutional as Article 15(3) allows the State to make provisions for the benefit of women.
Before the Hindu Succession (Amendment) Act, 2005 had been enacted, four states had introduced unmarried daughters as coparceners by amending the Hindu Succession Act, 1956; consequently, a conflict emerged between the principal Act and the Acts of the state governments.
One such example was the case of R. Kantha V Union of India.
In this case, the petitioner filed a suit for partition and separate possession of the joint Hindu family. Having regard to the proviso to Section 6(1) (c) of the Hindu Succession (Amendment) Act, the trial court dismissed the suit as ‘not maintainable’. It was at that stage that the writ petition was filed questioning the ‘constitutional validity’ of the above proviso.
The petitioners contended that the Hindu Succession (Amendment) Act, 2005, was introduced to bring about constitutional equality, and no gender discrimination on the basis of sex should be allowed.
It is contended that the proviso lays down, notwithstanding the amendment, that any disposition or alienation which had taken place before 20th December 2004 would not be affected or invalidated. The proviso discriminates between a son and a daughter, for it is open to a son to question alienations and dispositions prior to the 20th December 2004, whereas a ‘restriction’ is placed on the daughter’s right to question the same.
The court held that if the objective of the proviso was to prevent the hardships of litigation, the ‘restriction’ should be placed on the sons too, and not only on the daughters.
The possibility of ‘lapse of time’ or other ‘intervening circumstances’, being such that the determination of the share of a daughter is ‘rendered obscure’ or ‘beyond redemption’ on account of any alienation or disposition prior to 20th December 2014 – is necessarily a question of fact depending on the circumstances of every case, and no cut-off date should be provided.
Hence, the proviso to Section 6(1)(c) of Act 39 of 2005 is irrational and has no nexus with the object of the Act. In fact, on the other hand, it would nullify its declared object, and hence, is in violation of Articles 14 and 16 of the Indian Constitution.
The object of the amending Act of 2005 was to remove the disparities between men and women in terms of inheritance rights and remove the discrimination against women, hence placing men and women on an equal footing.
By placing the proviso in question, the legislature has indirectly done what they wanted to eradicate initially, while also discriminating against women, curbing their rights which have been given to women.
Article 14 allows for discrimination on the basis of reasonable classification, if such classification has a close and direct nexus to the object of the Act. As the court has rightly found that the fact that a daughter cannot reopen a partition made prior to the passing of the Act – but a son can – has no rational nexus to the object of the Act, and hence is attacked by Article 14 of the Indian Constitution.
The High Court of Kerala was faced with the question of dealing with the ‘constitutional validity’ of Section 7 of the Hindu Succession Act in the case of Kunjunni Moopil Nayar V Union of India.
The question in this appeal was the ‘constitutional validity’ of Section 7 (3) of the Hindu Succession Act, 1956. The petitioner stated that the said section was ‘unconstitutional’. The only aspect of discrimination was that while the members of the tarwad are given shares along with the sthanee in the sthanam properties, the sthanee is not given a share along with the members of the tarwad in the tarwad properties. The court relied on the relationship between the tarwad and the sthanee which had been considered by the Supreme Court in Kochunni v. States of madras Kerala where it was stated that “it is true that whatever may be the origin of the sthanam, ordinarily the senior-most member of a tarwad succeeds to that position; but once he succeeds, he ceases to have any proprietary interest in the tarwad.”
The court said that the right described above was just a spes successionis and that the tarwad may supply future sthanees. The Hindu Succession Act is ‘prospective’ in nature. All that it does is to prescribe a line of heirs to a Hindu and avoid other spes successionis which may arise. Likewise, Section 7 (3) of the Act does away with the spes successionis of the heir-apparent to a sthanam. It enacts that on the death of a sthanee holding the sthanam at the commencement of the Act, the sthanam properties held by him shall devolve upon the members of the family to which the sthanee belonged, and the heirs of the sthanee. As the Act is not to affect vested rights, the tarwad properties vested in the tarwad are not affected by the section. No discrimination is involved in not providing for the sthanee a share in the properties of the tarwad and in allowing the members of the tarwad to share in the sthanam properties.
It follows that Section 7(3) of the Hindu Succession Act was not unconstitutional, and hence, not void.
Amongst other sections, Section 14 of the Hindu Succession Act was also challenged. This was taken up by the Supreme Court in the matter of Partap Singh V Union of India.
The petitioner filed a writ petition questioning the ‘constitutional validity’ of Section 14(1) of the Hindu Succession Act, 1956, contending that the provision contained in Section 14(1) was vague and uncertain, and in view of the observations made by this court in V. Tulasamma & Ors. v. V. Sesha Reddy, the section could not be relied upon any longer, and that it was in violation of Articles 14 and 15(1) as it attempted to favour only one section of the community, which was that of Hindu women, on the grounds of sex, therefore prejudicing male members.
The Supreme Court held that Section 14(1) of the Hindu Succession Act, 1956, is not vague and is capable of implementation. The Supreme Court gave effect to that provision in Tulasamma’s case. The observations were made only with a view to bringing to the notice of Parliament that the provisions of Section 14 needed to be recast in order to avoid any possible litigation arising on account of the clumsy language used therein. The court, however, did not find any difficulty in construing and applying Section 14, and in declaring that the property also became the ‘absolute property’ of the female.
The court further stated that Section 14(1) of the Act was enacted to remedy to some extent the plight of a Hindu woman who could not claim absolute interest in the properties inherited by her from her husband, but who could only enjoy them with all the ‘restrictions’ attached to a widow’s estate under the Hindu law. There is no justification for the males belonging to the Hindu community to raise any objection to the beneficent provisions contained in Section 14(1) of the Act on the grounds of ‘hostile discrimination’. The provisions are further protected by the ‘express provision’ contained in Clause (3) of Article 15.
The court has once again, progressively construed a provision that promotes women’s rights as good law. This has been a refreshing change, especially when the concerned law is related to Hindu personal laws, given the patriarchal background of the customs on which such laws are based.
This amendment has in fact been brought about to rectify the gender inequalities that the principal Act had. The court, being mindful of the object of the amending act and the need of the hour – to protect and promote women’s rights, has aptly taken the view that the relevant section is constitutional.
As discussed earlier, the constitution allows the legislature to make express provisions for the empowerment and upliftment of women. Hence the provision of Article 15(3) of the Constitution safeguards the said provision.
Sections 15 and 16 of the Hindu Succession Act, 1956, are prima facie discriminatory and in violation of various provisions enshrined in the Constitution of India. The courts of law have, on several occasions, had to tackle the question of the validity of these sections, constitutionally.
The Bombay high court has dealt with this in Mamta Dinesh Vakil v Bansi S Wadhwa. The question before the court was, whether the devolution of a property of a female Hindu dying intestate under Section 15 of the Hindu Succession Act are ‘unconstitutional’, in violation of Section 15.
The court held that the rules relating to the succession of Hindu females for the items specified in Section 15 are wholly distinct and different from those relating to succession of Hindu males in Class I of the Schedule.
It is clear that there is gender discrimination when father’s parents would be preferred over mother’s parents, all being grandparents. Similarly, there would be gender discrimination when father’s siblings would be preferred over mother’s siblings. The discrimination exists, justified as ‘patriarchy’ at the Centre.
In this case, there is no ‘special’ class of segregation apart from the gender. Therefore, it is affected by Article 15 of the Constitution. It should be noted that the property inherited by a female Hindu from her husband or her father is legislated to remain within that family. The property of a male Hindu, under the Schedule to Section 8 of the Hindu Succession Act, is not legislated to remain in that line itself.
The court, therefore, found the above mentioned sections to be ‘unconstitutional’.
Section 15 of the Hindu Succession Act, 1956, when analysed in contrast to Section 8 of the Act is unconstitutional on the face of it, as it is completely discriminatory, and prejudicial to women. There is no reason for the differing rules of succession for men and women.
The rules of succession have a sense of patriarchy to them, with male relatives getting preference over female relatives. What is appalling to note is that a female’s property would first pass on to her husband’s heirs before going to her parents!
Though the section still exists in the statute book, the fact that a high court has found it unconstitutional is a ray of hope, and a step towards a larger goal of completely eliminating the section.
This was not the first time the Bombay High Court had to deal with the validity of these sections. Earlier, in the case of Sonubai Yeshwant Jadhav vs Bala Govinda Yadav, it was held that the classification of heirs for females, including the heirs of the husband, was under the assumption of unity of the female with the husband’s family.
The court disagreed and held that the discrimination was only along gender and not family lines. This was because of the concept of keeping the property within the family it came from, exists only in cases of succession for females, and not for the male community, otherwise the daughters would not be able to inherit a man’s property.
It was therefore held that the section is unconstitutional, and therefore, void.
It is heart-warming to note that the court has gone ahead and disregarded stereotypes by considering the fact that it is possible for a woman to not be united with the family of the husband.
In a society like ours where it is assumed that a girl once married, severs all ties from her parents’ house and becomes a part of the husband’s family, it is a big step for the court to go ahead and state that the unity between the husbands family and the wife is not always present, and is just an assumption.
The mere fact that men and women do not have similar rules for succession, in my opinion, is discriminatory in nature and prejudicial to women.
Since times immemorial, the Hindu religion has been male-centric and patriarchal in nature. This can be seen in the age-old customs and traditions that have been followed over the years. Practices like ‘female infanticide’ and ‘sati‘ clearly show the mindset of the people and the ‘domination of the male gender’.
The Hindu Succession Act, 1956, has been derived from the Hindu customs and traditions as discussed earlier, and also apply to the Hindu citizens in India. Therefore, it is fairly obvious that there will be a sense of ‘male domination’ in the act.
It is reassuring to know that the legislature has recognised this ‘domination’, and is therefore trying to make amendments to bring about equality between men and women. The extension of property rights to women came as a great breakthrough in such a situation.
But this recognition, though acting as a ray of hope, is only a starting point for what is a long journey ahead. To achieve this objective, whatever steps are taken by the legislature are met with many impediments, varying from insecurities that men develop to people feeling like their religious customs and beliefs are being ‘interfered with’.
Specifically speaking, with regards to the Hindu Succession Act, 1956, the legislature came up with an amendment in 2005 with a view to progressively end all discrimination and bring total equality of sexes with respect to devolution of property. Unfortunately though, the amendment could only touch upon certain aspects of the discrimination. By not bringing in a modification to the devolution of property amongst females, they have stuck to the ancient concept of ‘a woman’s priority changing once she is married’.
By the very act of having separate rules of succession for men and women, the legislature has created a division, and has made all notions of equality a farce. If the family of a man gets a right in his property upon his death, why should the family of a woman not have equal rights in her property upon her death? Why should they be placed on a lower footing than the family of the woman’s husband? There is clearly no logical explanation to this. The reason I assume for this lies in the belief that the woman, once is married, becomes a part of the husband’s family. While this may be true, it does not follow that the woman has severed all ties from her previous family, or that they can be said to be less important than her new family. It therefore is not justified that the woman’s parents are of a lower standing in the ‘succession hierarchy’.
Another thing which is irrationally discriminatory is the preference of male relatives over female relatives and the preference of father’s relatives over mother’s relatives in the ‘succession hierarchy’. There appears to be no reasonable explanation for this ‘hierarchy’, and again, men have been given more rights than women in matters related to succession as well.
What else is astounding is that when a woman dies, the ‘source of the property’ she possesses has to be determined and the property goes back to that source, but that is not the case with men. So, if a man acquires the property on his own, or has it gifted to him from his parents or his wife’s parents, the manner in which such property is devolved would be the same.
These are some of the aspects that are fiercely discriminatory against women which the legislature seems to have missed out on. While we are certainly moving in the right direction, there is a long way to go before men and women will be put on an equal footing.
My suggestion to bring an end to such discrimination would be to lay down a single set of rules for the devolution of property which is applicable to both men and women, and these rules should not be general pre-determined rules but should regard interpersonal relationships between the holder of the property and the person in whose favour the property is going to be devolved.
There is no arguing that one would rather want to give his property to people he held close to his heart upon his death, rather than people he had sour relationships with who were a part of the classes of heirs determined by law. If the legislature could incorporate changes as suggested by me, a person, who has failed to make a will, will not have to face such problems.
While interacting with the locals of the village outside our college, we realised that the mindset of the people is slowly evolving. While the elders of the village still have a narrow outlook, the younger generations are more open to change and believe in the empowerment of women and the rights of women.
This is a positive sign that the society is slowly progressing towards a brighter future where men and women would both be seen and treated as equals, and once this change is bought about in the society, it would automatically be incorporated by our legislature.
As Mahatma Gandhi once said, “Be the change you want to see.”