Tuesday, January 31, 2023
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Law on inheritance of issueless, heirless female Hindu dying intestate needs reframing

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Last week, the Supreme Court resolved a decades-long partition suit based on two legal principles relating to females’ inheritance rights under the Hindu Succession Act. The first principle was that under customary Hindu law, a daughter has the right to inherit the self-acquired property of her father dying intestate. The other one was regarding the inherited property of a Hindu female dying intestate and issueless always returning back to the source. News coverage of the dispute largely focused on the first principle, which represents a widely heralded reform recognising women’s right to own and inherit absolute property. The second principle, which represents the last bastion of gender inequality in Hindu succession laws, largely evaded public scrutiny.

India’s family laws pose a unique challenge since they are derived from religious scriptures, and have only recently been codified and apply based on faith of the individual. Post-independence, the responsibility fell upon Indian leaders of the time to codify uniform laws for marriage, adoption, and inheritance. Several compromises were made to resolve the contradictions between the fundamental right to equality under Articles 14 and 15 of the Constitution and the Hindu systems of joint family, marriage and succession.

Hindu Succession Act and rights of women

The Hindu Succession Act, 1956 brought a revolutionary change by recognising female Hindus as absolute owners of the property and equal inheritors with their male counterparts. In 2005, daughters were recognised as equal coparceners of the Hindu joint family, sharing the same rights and liabilities as their brothers. In 2020, Supreme Court gave this right the broadest interpretation by ruling that a daughter is coparcener by factum of birth, and would be entitled to her share regardless of when she was born or whether her father was alive at the time of the 2005 amendment.

However, Hindu law for female intestate succession remains a serious controversy. The law refuses to treat women as independent entities capable of begetting a lineage by defining her heirs not in relation to her own self, but rather in terms of the blood relation to the male head of the family. Section 15 of the Hindu Succession Act classifies eligible heirs as her father’s heirs or husband’s heirs. Moreover, the first preference for inheriting self-acquired property of women dying intestate, including gifts, settlement, sales etc., goes to her husband’s heirs, including distant relations of her husband such as agnates and cognates, over her own parents, siblings and other close relatives.

Her inherited property goes “back to the source”, i.e. the family from which the female Hindu inherited it. It is problematic since the law only seeks to conserve property in the family of the male Hindu. Its roots can be traced back to the old Hindu law where females were not coparceners in the joint Hindu family and also could not have absolute ownership inherited from males. They could enjoy the property in their lifetime and after that, it was to return back to where it came from.

The Hindu Succession Act was touted as a reform over old Hindu laws since it focused more on love, affection, nearness of the relationship and reciprocity. But for intestate succession of females, these considerations take a backseat. The law continues to expect a wife to adopt her husband’s relations as her own, does not give full purpose to actual ownership of property by women and allows the anachronistic view of seeing women as a limited and temporary holder of property to pervade.

The current state of laws on succession over an intestate female’s property violate the fundamental right to equality among genders, which is part of the Constitution’s basic structure. It is also incompatible with the current times where female literacy is on the rise, more women are creating wealth, and the marriageable age has been increased to empower. The law does not adequately protect the financial security of the girl’s parents and reduces the incentive for parents to spend on their daughter’s education and career development if they know that her self-acquired property will first devolve onto her marital relations.

The pandemic has led to several untimely deaths, and quite a few women are likely to have died intestate and without children. Currently, a challenge is pending before the Punjab & Haryana High Court by a mother against her deceased daughter’s property devolving to her in-laws. If women have been made equal inheritors, coparceners, and absolute owners, the reform in intestate succession will only be the next logical conclusion towards making these rights meaningful. There are several other communities around the world which follow a single law of succession for both sexes and still preserve family unity. Gender inequality is already a problem that our society is grappling with, and the law cannot abdicate its role to ensure equality and justice.

The author is a student at National Law University, New Delhi. Views are personal.

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