EVOLUTION OF HINDU SUCCESSION LAW
Traditionally there have been two major Schools of thought with respect to Hindu succession in India, namely the Mitakshara and the Dayabhaga school. The Mitakshara school has divided property ownership into Obstructed (apratibandha daya) and Unobstructed Heritage (saptratibandha daya). Ownership based on Unobstructed Heritage was collective or coparcenary, and this ownership is gained or lost through birth and death in the family of the coparcenors (principle of survivorship). To elaborate, the general rule of succession is that ownership of a property doesn’t pass to the next generation unless the present is dead. But in case of coparcenary property, because the right in the property is gained through birth, existence of a prior owner doesn’t obstruct a newborn from gaining ownership over the property by birth in the family. The property, being collectively owned by the family members, cannot be alienated individually by any member. Every such member shall have the right to request partition of the property to gain separate ownership. This collective ownership was standardly carried between four successive generations.
The patriarchal norms of this school of thought can be clearly seen from the fact that the said collective ownership was limited to the male members of the family. The ratio behind this arbitrary norm was rooted in the idea of considering the women to be a part of their Husband’s family. This way, female members of the family only have the right to maintenance in their family and no right of ownership over an unobstructed heritage, except for certain legislative exceptions1. Obstructed heritage is essentially separate property owned by individuals. Herein, any interest in the property shall be vested only by inheriting the said property after the demise of the previous owner. In other words, the existence of the owner obstructs another from accruing right in the said property. Such property can be inherited by female counterparts in the family.
Similarly, the Dayabhaga school was based on the spiritual benefit. That is, the person who gives the highest level of spiritual benefit to a dead person has the eligibility to inherit the latter’s property. The collective ownership over the property only shifts to the next generation upon the death of the last person of a prior generation. Even this ownership is limited to the male members of the family. But, Dayabhaga law recognised female interest in the property by providing life interest to the widow upon the death of the respective male member.
Post-independence, the first legislative interference to strike gender inequality in inheritance laws was initiated through the Hindu Code Bill of 1948 which tried to abolish the concepts of Hindu joint family and coparcenary and provided for a uniform scheme of inheritance of the property. This bill was not enacted due to the heavy opposition of conservationist Hindu wings, claiming the disintegration of Hindu family units in India.
Hindu Succession Act Of 1956
This led to Hindu Succession Act of 1956 which was intended to strike a balance between the reformist and the conservationists by taking a piecemeal approach towards eliminating the patriarchal concept of Coparcenary property. Section 6 of this act created and mandated the fictional practice of Notional Partition which is triggered only in the presence of a first class female member of the family of the deceased. In Notional partition, the law presumes the deceased member to have requested a partition right before his death, thereby making his share in the coparcenary property as his separate property which is subject to inheritance by his heirs including his first class female heirs (thereby, converting of a part of the property from unobstructed to obstructed heritage, which can be inherited by female heir).
With respect to Separate property, the act, through Section 14(1), transformed any limited interest/share possessed by a female in furtherance of pre-existed right prior to 1956 to an absolute interest /share in the property.
Hindu Succession Amendment Act of 2005
Though, this Amendment was a delayed move following several State Legislations which abolished Joint Hindu Family System2, it has been the most progressive Central Legislative interference enacted in the history of Hindu Succession Laws. This amendment, through Section 6 placed the daughters on the same pedestal as the sons in a Hindu Family by making them a coparcener by birth and thus, making them entitled to a share equal to the son’s share in the coparcenary property for all the partitions that happen on or after 20th December 2004. Additionally, it also mandated the practice of notional partition irrespective of the presence of a first class female heir.
JUDICIAL INTERFERENCE THROUGH LANDMARK JUDGEMENTS
Gurupad Khandappa Magdum vs Hirabai Khandappa Magdum And Ors3
Justice Y Chandrachud, in this Supreme Court judgement held that, in furthering the Legislative Intent of the Act to provide women with the share in coparcenory property to be the primary consideration while interpreting the provisions of the Hindu Succession Act of 1956.
“Interpretation furthers the legislative intent in regard to the enlargement of the share of female heirs, qualitatively and quantitatively. Even assuming that two interpretations of Explanation 1 are reasonably possible, Courts must prefer that interpretation which will further the intention of the legislature and remedy the injustice from which the Hindu women have suffered over the years. By restricting the operation of the fiction created by Explanation I in the manner suggested by the appellant, Courts, shall be taking a retrograde step, putting back as it were the clock of social reform which has enabled the Hindu women to acquire an equal status with males in matters of property.”
Vineeta Sharma vs Rakesh Sharma4
This case overruled the ratios upheld by the Supreme Court in several cases5 including Prakash & Others v Phulavati & Others6 . In the latter judgement, the court upheld the two basic conditions to be fulfilled for the daughters to be eligible to claim under the 2005 amendment. Firstly, the partition ought not to have taken place before 20th December 2004. Secondly, the amended section would be applicable to the daughter only if her father was alive on the date when the amendment came into force, that is, September 9, 2005.
The apex court, in Vineeta Sharma vs Rakesh Sharma, held the second condition as void thereby overruling the previous judgement. Additionally the court observed the amendment to be retroactive in nature.
FURTHER STEPS
Though Judicial and Legislative Interferences have been progressive steps in bringing gender equality in the Hindu Succession Act, there is further scope for improvement. The Act is still regressive in several ways such as,
- The 2005 amendment is limited to providing the daughters with coparcenary rights while leaving out other female members of the family.
- The act provides different Schemes of intestate succession for men and women. Under section 15, the separate property of a women flows to different heirs with respective to the roots of such property which is not the case for men. Men, under section 8, have a standardised classes of hierarchy through which all of their separate property shall flow irrespective of its roots. This differentiation stems from the patriarchal norm of considering women to a part of the husband’s family. That is, the Husband’s heirs have an upper status over her natal family in inheriting any her separate properties (except for the property she inherits from her parents) after her death.
- The act prefers Agnates (relations connected whole through males) over cognates (relation not connected wholly through males) even if the former is remoter in relationship to the deceased.
These are few apparent areas that are explicitly gender discriminatory and require reformation.
1 Hindu Women’s Right to Property act of 1937 – on the death of the husband intestate, the act created a right to widow to a limited share in the property equal to that of a son.
2 Kerala abolished the Hindu joint family system in 1975 through a state legislation due to its inherent unequal nature. Andhra Pradesh (in 1985), Tamil Nadu (in 1989), Karnataka (in 1994) and Maharashtra (in 1994) adopted a reformist approach. They enacted state amendments to the HSA to give daughters coparcenary rights equal to that of sons, and to eradicate the dowry system through positive measures of empowerment. However, this benefit was exclusively for daughters who were unmarried when the amendment came into force; future marriage of the daughter did not divest her of the property rights that had already been vested in her. The 2005 amendment, which was applicable to the entire country, went one step further than the state amendments at infusing gender equality, and enlarged the rights of daughters. It gave equal coparcenary rights to all daughters, irrespective of their marital status – V V, “Interview: 'the Project of Reforming the Hindu Succession Act Is Far from over': Dr Saumya Uma” (The Wire) https://thewire.in/law/hindu-succession-act-women-supreme-court accessed November 29, 2021
3 1978 AIR 1239; 1978 SCR (3) 761; 1978 SCC (3) 383
4 (2020) 9 SCC 1
5 Danamma@Suman Surpur & Anr. v. Amar & Ors. [(2018) 3 SCC 343]
6 (2016) 2 SCC 36