CONTINUOUS INTERNAL ASSESSMENT

SEMESTER – III

SUBJECT: FAMILY LAW - II

‘HINDU FEMALE INTESTATE SUCCESSION’

LAKSHYATA DAGA
SEC C / ROLL NO.96
INTRODUCTION
Around the world, across cultures, many distinctions between the people residing there can
be made. But a common denominator throughout is the importance of material possessions or
property. Whether newly acquired or inherited, every individual wants to live a comfortable
life. but more than material comforts, property and assets give a sense of security to one from
the perils of a world where the only constant is change. To deny someone their rightful
property, is to deny them the opportunity to live a better life in whatever limited time
available on this planet.

In Hindu Law, the traditional set up is patriarchal. The position of women, who form around
half of the world population, was of a subordinate status. “A woman is not entitled to
independence; her father protects her in her childhood, her husband in her youth, and her son
her old age” was the general position of scriptures like Manusmriti and other shastras. 1 These
texts propagated a system, such as the Mitakshara School of Joint family, where gender
inequality was the norm, reserving the powerful positions in the family for men in a
coparcenary consisting of four generations, including the head male or the Karta.2

RULES OF SUCCESSION

Even after marriage, as per the doctrine of survivorship, a female had no right to inherit
property after the death of a male head and it distributed between other male relatives. The
consequence of such laws only worsened with time as women were considered as chattel and
eventually a burden, as they were not allowed to contribute to the family but had to be
protected from men themselves and married off with a dowry. Resulting in domestic abuse
and even infanticides. In order to reform the society in this respect, new laws had to be made.
One of the first of these was The Hindu Women’s Right to Property Act, 1937, allowing
widows to claim property of the deceased husband in a coparcenary. 3

1
The Laws of Manu, verse 3. Retrieved from https://www.sacred-texts.com/hin/manu/manu03.htm
2
https://thelawbrigade.com/wp-content/uploads/2020/07/Rebecca-APLPR.pdf
3
v The Hindu Women’s Right to Property Act, 1937.
India now has moved on much ahead with respect to women’s rights and various reforms
have been made so far, but much more has to be done. In the case of Om Prakash v.
Radhacharan, Narayani Devi, a 15 year old Hindu, was thrown out of her matrimonial home
by her in-laws after the death of her husband from a snake-bite. They did not keep in contact
and Narayani got an education and a job. She passed away at the age of 56 years without a
will. She had, in her name, various bank accounts along with provident funds and other
property which are ‘self acquired’.

When her property was claimed by her brother and mother after her death, it was also
claimed by the heirs of her deceased husband. And as a rude shock to her family, the
Supreme Court decided in favour of her in-laws. It was laid down by the court that as per
the provisions of the Hindu Succession Act (1956), the heirs of the husband have an existing
legal right on an issueless married Hindu woman’s property preceding that of her own blood
relations. This decision was made irrespective of the fact that the law does not explicitly
mention the ‘self acquired’ property of a Hindu female and does not make any distinction
from ‘general property’ with the exception of Section 15(2).

The territorial asset of a Hindu Female Hindu dying intestate shall devolve 4 in the way of:

1. Upon her husband and children (including grandchildren from any pre-deceased
children);
2. Upon her husband’s heirs;
3. Upon her mother and her father;
4. Upon her father’s heirs; and
5. Lastly, upon her mother’s heirs.

those falling under the same above-mentioned class shall have the right over the property
simultaneously, while, will be as laid down above the order of succession.

As a custom, in Hinduism, a married woman becomes a part of the new family but already
has existing ties with her natal family. Not only does her roles and responsibilities apply to
both the families as a daughter and daughter-in law, but she may also inherit property from
them. When a Hindu female dies without a will, her property, according to the Hindu
Succession Act (1956), can be divided into 3 types. Inheritance from her parents, in- laws and

4
Section 16 of the Hindu Succession Act, 1955
others. The devolution of this property will be done so that it goes back to its source or from
where it was inherited, as held in Sonubai Yeshwant Jadhav v. Bala Govinda Yadav -
“… the object of the legislation was to retain property with the joint family upon marriage
which brought males and females together forming one institution. It, therefore, accepted that
in recognition of that position when the wife’s succession opened, the class known as heirs of
the husband were permitted to succeed as a result of initial unity in marriage upon which the
female merged in the family of her husband”.5 This peculiar form of property law, does not
make any specific provision for the self acquired property of women due to their historically
subordinate position in society.

In the 21st century, the Indian Constitution, under Article 15(1) has granted its citizens right
to equality. Discrimination on the basis of gender or religion cannot me made. So while
Section 8 of the Act grants precedence to blood relatives of males over in – laws, it is
prejudicial to expect women not to give precedence to their own blood relatives as well. This
stems from the perception of women not having her own family independently and is a mere
extension of her husband’s family. No other religion has given such a peculiar position in
terms of women’s property, Parsi, Christian and Muslim women’s blood relatives can inherit
property even when the husband’s heirs exist.6

This sexism runs deeper in the Act, where property inherited by an issueless female from her
mother/father would devolve to the ‘heirs of the father’ before the mother’s. Perpetuating the
view that women have a restricted share in property even though Section 14(1) of the same
Act seeks to remove the same.7

The ‘Principles of Hindu Law (Mulla)’ also talks about how Section15(2) is on the principle
that property must not go to an individual “whom justice would require it should not pass.” 8
Drawing from Section 25 of the Act, where a murderer cannot inherit property of the
murdered as the deceased would not have wanted the same. 9 Hence, in the aforementioned
case, locus standi should have denied to the in-laws of the deceased, as they had no regard for
her throughout her life.

5
Sonubai Yeshwant Jadhav v. Bala Govinda Yadav -
6
https://indconlawphil.wordpress.com/2015/09/06/female-intestate-succession-under-hindu-law-analyzing-its-
constitutionality/
7
S 14 hsa
8
mulla
9
S 25 hsa
CURRENT SCENARIO AND CONCLUSION

The courts, more recently, have also adopted a similar attitude towards this statute. Bombay
High Court decision in Mamta Dinesh Vakil v. Bansi S. Wadhwa was one of the first to
recognise the same, arguing that keeping the property within the family was the not the
purpose of the statute, as daughters may inherit the property and get married off as per
custom. The statute was discriminatory solely based on gender and not familial ties. And such
stautes, even if they fall under personal laws, may be amended as in the case of the Indian
Divorce Act (in the cases of Ammini E. J. v. Union of India.

In Kamal Anant Khopkar v. UOI,10 the Supreme Court asked for the Centre’s opinion to the
Solicitor General, on the unequal provisions on the basis of gender under of division of
property in the Hindu Succession Act, which was also the subject matter of the case. After the
appointment of an “amicus curie”, for the resolution of the issue, it was accepted, inter alia,
that, “on the death of a childless Hindu married male, his properties would vest with his
parents; in case of the death of a childless widow, her properties, excluding those inherited by
her from her parents, will vest not with her parents, but with her husband's heirs.” The
Supreme Court opined that a judicial/legislative intervention to remedy the same is required.

In 2013, a bill was introduced to equalise the Section in terms of gender, by the way of
making an amendment in Section 3 and Section 15, however, the bill was not passed. 11The
207th Law Commission Report suggested two option to amend this. Firstly, the Act can be
brought to parity for females to the males. Secondly, to split the property equally among both
the homes – the natal and the marital home of the woman, as after marriage, as per custom,
she is supported by the in-laws.

Both of these suggestions are progressive in nature, and the application of any in accordance
with the needs of the majority, will be beneficial for the citizens.

10
Kamal Anant Khopkar v. UOI
11
Lok Sabha Debates, Part II (1955: 8107-212). See https://eparlib.nic.in/handle/123456789/7.