India: Thought Leadership Paper: Shortcomings And Evolution Of Hindu Succession Act, 1956

At the time when Indian society is moving towards gender equality, the laws have been quite slow in catching up with the transforming Indian society. A prime example is the Hindu Succession Act, 1956 (hereinafter referred to as the "HSA") which governs the succession of property in Hindu families. The 1956 Act notoriously reflected patriarchal notions majorly by treating Hindu women as second-class citizens, subordinate to men and by not placing them on an equal footing as men.

The provisions of Hindu Succession Act before the 2005 amendment to the HSA, were discriminatory in majorly two ways; first, women were not being accorded the status of coparceners in the property of a joint hindu family governed by Mitakshara Law under Section 6 of HSA; and second, HSA was discriminatory against women in matters of devolution of self-acquired property under Section 15 of HSA. The Hindu Succession (Amendment) Act, 2005 (hereinafter referred to as "2005 Amendment") addressed the first major discriminatory practice after 5 (five) decades of the enactment of HSA. However, the discrimination towards women in devolution of self-acquired property still persists.

This article identifies the lacunae in the HAS which are discriminatory towards women, traces and critically analyses various steps that have been taken by the parliament and judiciary to address these gaps. This article also provides potential solutions to eliminate inequalities and to enhance the rights of the women with regards to succession.

Analysis Of The Social Impact Of The Amendments In The Hindu Succession Amendment Act, 2005

The Hindu personal law moved one step towards becoming gender neutral when the HSAA was passed by the parliament. With HSAA, Section 6 was amended to make daughters coparceners by birth.¹ Daughters now have an independent right in the joint family property. Additionally, daughters now also have the same rights as sons over agricultural land² and the right to claim partition of and reside in the dwelling house of the parents.³ Another monumental shift that was brought about was giving widows the right to inherit even after remarriage.⁴

After HSAA, there has been constant advancement in the women's rights as regards their involvement in the property of a joint Hindu family governed by Mitakshara Law.

In 2015, the Delhi High Court in Sujata Sharma v. Manu Gupta held that a Hindu woman is legally entitled to be the Karta of a Hindu Undivided Family ("HUF").⁵ The court held that prior to HSAA, the only impediment that prevented a female member of a HUF from becoming its Karta was that she did not possess the necessary qualification of being a co-parcener. The court noted that this disqualification has been removed by the HSAA and therefore there is no reason why a Hindu woman should be disentitled from being appointed as a Karta. The objects and reasons to the HSAA noted that the amendment was brought in to remove the discrimination as contained in Section 6 of HSA by giving equal rights to daughters as to sons. In this case, the court declared Mrs. Sujata Sharma as the Karta of the HUF, which extended the rights of the women.

The HSA advanced more step towards improving the condition of women in 2020 in the case of Vineeta Sharma v. Rakesh Sharma.⁶ The Supreme Court held that daughters have a right to receive a share in coparcenary property irrespective of the date on which the father died. The three-judge bench resolved the controversy of contradicting Supreme Court decisions in the cases of Prakash v. Phulvati⁷ and Danamma v. Amar.⁸ These two judgements were decisions by the division bench of the Supreme Court which disagreed on whether it was necessary for the father to have been alive when HSAA was enacted. This issue finally was resolved by a three-judge bench of the Hon'ble Supreme Court in the Vineeta Sharma case. Though the decision in Vineeta Sharma case is praiseworthy, it is a mere reform in the traditional structure of the Hindu law and attempts must be directed to overhaul this structure itself.

With this, it was quite clear that the framework itself of the HAS is biased in favour of men and inherently gender discriminatory. Though HSAA and Vineeta Sharma's case do constitute as a successful attempt at making the coparcenary provisions gender neutral, one must not lose focus of other biased provisions such as Section 15 of the Act which discriminates against the natal family of women and the method of devolution it states is heavily patriarchal.

Further Changes Required In The Hindu Succession Act For Making It Gender-Neutral

Sections 8 and 15 of the HSA provide different schemes through which the property devolves after the death of men and women in the family, respectively. This difference is the main bone of contention as it is to the detriment of and disadvantageous to women. To elaborate, HSA gives priority to husband's heirs over the natal family of the deceased wife, in the absence of her husband and children. Even the self-acquired property of women doesn't devolve upon her natal family.

Under Article 15 of the Constitution of India, the state cannot discriminate between citizens solely on the basis of religion, race, caste, sex, or place of birth. Despite this explicit prohibition under Article 15, the HSA discriminates between men and women solely on the basis of gender. In 2012, Bombay High Court in Mamta Dinesh Vakil v. Bansi S. Wadhwa dealt with the issue whether Section 8 and Section 15 of the HSA read together show that either of these sections are discriminatory and unreasonable and hence unconstitutional.⁹ The court declared that this was unconstitutional as being violative of Article 15(1) of the Constitution of India. However, this decision conflicts with a previous single-judge bench's ruling in Sonubhai Yeshwant Jadhav v. Bala Govinda Yadav,¹⁰ and the matter since then has been referred to a division bench. The division bench has not resolved this matter as on date.

Attempts have been made in the past to root out the unfair provisions under the HSA but to no avail. The Hindu Succession Amendment Bill, 2013 merely proposed to change the scheme of devolution of self-acquired property by introducing Section 15(3) but doesn't address the discriminatory provisions under Section 15(1).¹¹ Also, this proposed amendment didn't provide any mechanism for situations when the marital family abandons the woman but claims for the right in her property post her death. Another failed attempt was the Amendment Bill of 2015.¹² Though it sought to improve the situation of women even further by amending Section 15(1), the discriminatory structure was intact where there were differing methods of devolution of property for men and women.

The scheme of devolution of property is far more gender-equitable under The Indian Succession Act, 1925 which could possibly be adopted under the HSA. Alternatively, Section 15 could be abolished and the scheme of devolution under Section 8 of the HSA, which was applicable for men, could be expanded to include all persons which would ensure that the scheme of devolution is equal for all. This could solve the issue where the heirs of the husband get priority in the self-acquired property of a woman over her natal family.

Conclusion

Since 1956 to 2021, the status of women has significantly changed in India. Thus, there is an urgent need to adapt the laws with the pace society is moving. Laudable efforts have been made in 2005 when amendment to the HSA was passed and daughters were put on equal footing with the sons after the decisions in Sujata Sharma and Vineeta Sharma. Though this was praiseworthy, it was a mere reform in the Hindu succession law whose framework itself is biased in favour of men and inherently gender-discriminatory. More steps on the part of parliament are needed to make the HSA gender neutral.

Footnotes

1. Hindu Succession Amendment Act, No. 39 of 2005, clause 3, Amended Section 6.

2. ibid, clause 2, Amended Section 4.

3. ibid, clause 4 which omitted Section 23 of 1956 Act.

4. ibid, clause 5, which omitted Section 24 of 1956 Act.

5. Sujata Sharma v. Manu Gupta (2015) SCC OnLine Del 14424.

6. Vineeta Sharma v. Rakesh Sharma (2020) 9 SCC 1.

7. Prakash v. Phulvati (2016) 2 SCC 36.

8. Danamma v. Amar (2018) 3 SCC 343.

9. Mamta Dinesh Vakil v. Bansi S. Wadhwa LNIND 2012 BOM 748.

10. Sonubhai Yeshwant Jadhav v. Bala Govinda Yadav AIR 1983 Bom 156.

11. Hindu Succession Amendment Bill, 2013, No. 17 of 2013.

12. Hindu Succession Amendment Bill, 2015, No. 319 of 2015.

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