By Garima Agarwal
The Hindu Succession Act (hereinafter “HSA”) is an inheritance law that was passed in 2005 to give sons and daughters equal share towards their father’s acquired property and towards their ancestral share. Yet, there are many women who still do not assert their inheritance rights, resulting in the persistence of male control over family property. Through this article, the author will explore how HSA has not entirely been successful in granting property rights to Hindu women.
The conversation around women and property rights is not new, and neither are attempts at reform. But these attempts have seldom resulted in the actual provision of economic support for women.
Looking back at the early history of women’s property rights, it is reported that they were given their share of family resources before their marriage as “stridhan,” in the form of jewellery, cash, land etc. Their personal property consisted of whatever they had acquired through their skill and received from their family, in-laws, friends and other relatives at the time of their marriage. Though it was the woman’s personal property, the woman did not have the right to pass it on or sell it without her husband’s consent. A woman’s possessions were never considered hers in the sense of ownership.
The issue of inheritance has been even more fraught. A property in a Hindu joint family would delve into the male heirs or the next eldest male member leaving out women from its ambit. This practice was often sanctioned by the patriarchal belief that if women were entitled to property rights, it would give them financial independence, make them less reliant on men, and lead to fragmentation of the family unit. Another reason for depriving women of property rights was the widespread notion that, eventually. they would be married and giving them access to property would mean relinquishing it to their husband’s family. They were therefore subjected to inequality and adverse living conditions in their parents’ home as well as marital home.
The Hindu Succession Act
To ensure that women were also equally entitled to their family’s property as the sons, The Hindu Succession Act was enacted in 1956. HSA emerged as the first law that promoted gender equality with respect to inheritance rights. The 1956 law had converted the limited right possessed by women to an absolute one. Although in the past women had some sort of independent property, they could not dispose of it without their husbands’ consent, this was changed by Section 14 of the Act. Under this Act, the woman was restricted to be a part of the coparcenary property. This means though she could acquire the share of her father’s individual property, she did not have a right over any ancestral property.
This Act was later amended by the HSA Act of 2005 (“The Act”) which introduced certain changes to some widely-criticised sections of the earlier 1956 Act. Sections 4, 6, 23, 24 and 30 were amended to grant daughters the same rights and liabilities as those of a son, furthering equal treatment to both the genders. In the recent 2020 case of Vineeta Sharma, it was held by the court that the ancestral property is inherited by the daughter at birth in the same way as it is acquired by the son, irrespective of whether the father is living or dead.
Yet, despite incremental progress, there still exists evident discrimination between a man and woman in the legislative framework of the law. For example, the HSA continues to discriminate between the devolution of intestate property of a male (Section 8 of the Act) and a female (Section 15 of the Act). [for the reader’s convenience: intestate property refers to when a person dies without leaving a will]. Section 15(1) of the HSA describes how the property of a female dying intestate is to be devolved. This section gives first preference to her children, children of a predeceased child and her husband. In case none of them are available, the next in line of inheritance are the husband’s heirs rather than the heirs or family of the woman. In case the woman dies without having any children; instead of her parents, it is her in-laws who are in line to inherit her property.
This most recently came to the fore in the case of Om Prakash v Radha Charan. In this case, Narayani Devi had only been married for three months when her husband died. Post her husband’s death, she was driven out of her matrimonial home. She then started living with her parents and became the sole earner. During the course of her work, she had built a substantial estate and died leaving all that behind without a will. When her family claimed the succession certificate, to their surprise, it was Narayai Devi’s in-laws, the very people who had been thrown out of their home who became rightful heirs to her estate.
Hindu laws have undergone several changes to be accommodative towards women. Yet, they have not quite achieved their intended social outcome; families of women in many parts of the country continue to be completely neglected and given an inferior status vis-a-vis relatives from the husband’s side of the family. Consequently, they are unable to acquire any share of their daughter’s property if the husband has an heir even if it is a remote/very distant relative. Further, since, the HSA mandates law limited to intestate succession, the Hindu father still has unfettered discretion to bequeath his self-acquired properties to whoever he wishes and there is still scope for discrimination between sons and daughters. It is fair to say that though the law has given some relief to women, the ‘will’ still lies with the father who can transfer the entire property rights to his sons through a will.
Even after legislative reforms, we see discriminatory practices towards women that restrain them from having equal rights over property. There is a dire need for reforms in the personal laws to ensure gender-just inheritance laws which are in accordance with Part III of the Indian constitution ensuring equality to all its citizens and not discriminating on the grounds of religion, gender or sex. For the Hindus, the woman’s side of the family should be given equal importance to that of the male’s side, and they should be able to inherit their daughter’s estate if she dies. In the case of Muslims and Christians, the woman’s side of the family is not neglected, and they get a fair share of their deceased daughter’s property. There is no law for the testamentary disposition; this means that a father still has a way to dispose of his property to his son by way of will. Therefore, even such situations must be given a closer look to ensure that the daughter’s rights are not given away to the son. Often it is observed that women are compelled to relinquish their rights in the fear that they might lose the support of their family after marriage. There must be limitations on such relinquishment of rights, and it must be subject to judicial scrutiny. It is imperative that all women are aware of their inheritance rights, failure of which defeats the whole purpose of the law.
Garima Agarwal is a 4th-year undergraduate student pursuing BBA.LLB (Hons.) from O.P Jindal Global University.