HINDU FEMALE INTESTATE SUCCESSION LAWS AND THEIR IMPACT

ON FUNDAMENTAL RIGHTS OF THE ELDERLY

Authors: Bidisha Das, Shivangi Banerjee

Contents

Introduction ............................................................................................................................................. 2
The Hindu Succession Act and its patriarchal roots ........................................................................... 3
Recent amendments and the areas overlooked.................................................................................... 3
What is Section 15(1).............................................................................................................................. 5
The problem with section 15(1)(b) of the Hindu Succession Act ....................................................... 6
Constitutional Implications ................................................................................................................. 7
The violation of Fundamental rights ( 14,15 21) ................................................................................ 8
Article 14 ............................................................................................................................................ 8
DPSPs ................................................................................................................................................. 9
Art 21 and the elderly ....................................................................................................................... 10
Conclusion ............................................................................................................................................ 11

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Introduction

The Sanskrit phrase “Na stree swatantram arhati” which directly translates to “Woman does
not deserve freedom” is one among the various patriarchal phrases present in the codified
Hindu law of ancient India, Manusmriti. As reflected through the many regressive practices in
the religion, it is no secret that ever since earlier times, Hindu women were at a constant
struggle with getting socio-cultural recognition of their basic rights. Unfortunately, the
legislative means given to them through codified Hindu personal law only added onto their
struggle, all thanks to its archaic provisions.

In the recent years, the Judiciary has taken various strides towards building a progressive and
socially-inclusive India. Repealing discriminatory provisions such as section 377 of the Indian
Penal code1 and the Triple Talaq rule2 are few among the many steps taken to ensure gender
inclusivity and equality. However, it can be made out from our current state that one of the
biggest reasons behind gender disparity still being present in both our legislation and people,
is yet left to be addressed. The actual cause of this perpetual prejudice can be traced all the way
back to our customs, traditions and the personal laws drafted accordingly. It was time and time
asserted in the constituent assembly that one of the features that made Independent India
different from colonial India was our religious diversity. The reason behind this multi-religious
phenomenon are our diverse personal laws and it should be noted that these pieces of legislation
were passed with the sole vision of ensuring religious freedom.

As time passed, numerous amendments were made to the Constitution and statutory laws to
fully adapt to the new economic and social changes. A wave of tremendous liberal change in
the form of protests, petitions and debates to uphold equality and justice is being observed to
be slowly taking over for good. It is therefore truly unfortunate that in these progressive times,
most personal laws are not only behind the times but have discriminatory and patriarchal roots
to it. Since these laws are still not repealed or entirely replaced by a uniform civil code in order,
to keep the country truly secular it is important for such sections to be amended with the view
to ensure social welfare. One of such obsolete personal laws is the Hindu Succession Act, 1956
(later amended in 2005).

1
Section 377, IPC
2
Shayara Bano v. Union of India AIR 2017 9 SCC 1 (SC

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The Hindu Succession Act and its patriarchal roots

It is ironic how in a religion where most goddesses portray the image of married women, the
codified legislation of Hinduism is laced with misogyny, especially with regard to married
women. Females in Hindu law have long been blatantly discriminated against in terms of both
inheritance and succession. For the duration of forty-nine years, man and woman had different
schemes with regard to inheritance where the woman was refused the right to parental property
on the basis of her marital status. In 1985, after numerous reports on the field of succession
rights given to Hindu wives as under the Hindu Succession Act,1956, the states of Andhra
Pradesh, Tamil Nadu, Maharashtra and Kerala came to be the first few states that recognized
the problems that were being faced by Hindu women. Taking notice of the violation of Article
14 because of the poorly framed inheritance laws under the act, these states went to the extent
of amending the law eventually making women legal coparceners. Despite the much-needed
recognition by the south Indian states, India as a whole failed to adopt these changes and the
amendments failed to do justice to all the inequalities present in the act. Fortunately, in 2005
the amendment to the Hindu Succession Act dealt with most of the inheritance-based
discriminatory provisions. Despite these few changes, the amendment act missed a lot of areas
that required attention.

Recent amendments and the areas overlooked

The Hindu Succession (Amendment) Act, 2005 brought the gender-disparity of Hindu
succession into light and the changes introduced became a turning point for not only Hindu
women but also for women belonging to other religions with the amendment acting as a
landmark for bringing feminist changes in personal laws. These imperative changes were
brought by amending section 4(2), section 6, section 23, section 24 and section 30 of the act.

In the Hindu Succession (Amendment) Bill introduced in 2004, each of these sections and their
anomalies were discussed in detail and vast differences in the treatment of men and women
and the unfair advantage given to Hindu men based on ancient traditions showed how necessary
it was to update these laws with the flow of time. Elaborating on the amended sections, Section
4(2) of the act excluded women from getting tenancy rights to agriculture land, Section 23

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disentitled female heirs from seeking partition of their dwelling house until the male heirs
agreed to divide their shares in the house3. Apart from being directly in contrast with the
judgement in Bennett Coleman & Co. v. Union of India4, this section also serves as a prime
example of the discrimination between married and unmarried woman under Hindu law and
Section 24 which was discriminatory against widows also fell under a similar pretence. Section
30 made the terminology used in the act more gender neutral and finally, the most celebrated
amendment was of section 6 of the act which made women eligible to be coparceners in the
property of the Joint Hindu Family by birth, acquiring similar rights and liabilities to that of a
son, bringing an end to limitations imposed on their property rights as recognised under Article
31 of the constitution and The Hindu Women Rights to Property Act, 1937.

All these changes in the law made a significant contribution in upholding the rights guaranteed
to women as under constitution. Unfortunately, marital status continues to remain a major
hindrance towards obtaining absolute equality in the field of succession rights and the
provisions that dealt with rights of married women who die intestate, were completely left
untouched.

3
Eastern Book Company—Practical Lawyer. (n.d.). Www.Ebc-India.Com.
https://www.ebcindia.com/lawyer/articles/2005_5_19.html

4
Bennet Coleman & Co v. Union of India (1973) SCR (2) 757

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What is Section 15(1)

India has been a patriarchal society since time immemorial. Male preference has always
prevailed in India from the beginning. The biological distinction between men and women has
manifested as inequality and dominion, which has become the primary cause of Indian women's
oppression. According to a new survey conducted by the Thomson Reuters Foundation, India
ranks first among the world's most dangerous countries. During the ancient times an initiative
was taken to provide a separate identity to married women by calling them “Ardhangini". Many
abusive patterns emerged later in the Vedic period, including the Sati system, Pardha system,
child marriage, dasi pratha, Niyog Pratha, and so on. According to the Garuda Purana, women
were told to, "follow the rules of the Vedas or wrath in hell," and this time the ancient rules not
only oppressed them, but also punished them for disobedience. The punishments were a cycle
of torment, with the ending of one hellish practice and the beginning of the other. In a nutshell,
the Vedas created a hostile atmosphere for women in the society. The disturbing patterns in the
sex ratio and survival rates of the Indian society indicate a long-standing son preference. Sons
are expected to carry on the family name, earn money, help their parents in their old age, and
perform funeral rites, while girls are expected to marry into another family, taking her dowry
with her and thereby being a financial burden to their family. “Bringing up a daughter is like
watering a plant in someone else's courtyard,” as an Indian proverb goes.

As apparent from the lack of female appraisal as seen during the ancient times, the male child
was preferred over a female child. It was commonly thought that only males can be the head
of the house, males are the one who bring food to the house it is only the males who deserve
property. As a result, the parents started wishing for a male child as they saw a bright future
ahead of them and with addition to being treated like blessing in the household, the parents
willfully handed over all the property to their child. With that in the backdrop, let us discuss
modern day succession and the current impact of the long prevailing Section 15(a) of the Hindu
Succession Act on married women. Succession is the act or process by which a person becomes
entitled to the property or property interest of a deceased person and the transmission of the
estate can be from a decedent to his or her heirs, legatees, or devisees. In case of Intestacy, the
deceased dies without having in force a valid will or other binding declaration and if we look
further, we can see a well-defined meaning of intestate succession. It means that the
transmission of property or property interests of a decedent takes place with accordance to the
statute as distinguished from the transfer in accordance with the decedent's will.

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The problem with section 15(1)(b) of the Hindu Succession Act

Now let us first talk about Section 15 of Hindu Succession Act which deals with intestate
succession. General rules of succession in the case of female Hindus are laid down as,

“(1) The property of a female Hindu dying intestate shall devolve according to the rules set
out in section 16,-

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son
or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother

It is further stated in 15(2) that,

(a) any property inherited by a female Hindu from her father or mother shall devolve, in
the absence of any son or daughter of the deceased (including the children of any pre-
deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the
order specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father-in-law
shall devolve, in the absence of any son or daughter of the deceased (including the children
of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section
(1) in the order specified therein, but upon the heirs of the husband.”

When we read this section, it can be seen that in sec 15(1)(b) preference is given to the in-
laws rather than deceased’s own parents as mentioned in sec 15(1)(c). The discriminatory
factor of the section can also be found in the 15(2) as it can be clearly deducted from the
rules mentioned above, the property inherited by the deceased Hindu woman is also passed
on to the heirs of the husband and not to her own aggrieved parents.

So, what is specifically wrong with section 15(1)(b) of Hindu Succession Act? It can be
clearly seen in the section mentioned above that the property of female Hindu intestate is
given to the husband and then his parents and the parents of the deceased Hindu female is

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 not only not considered as a priority, they are given lesser importance than her in-laws.
This biased behaviour has is not only about the biological difference between a male and
a female, the biased approach can be seen to affect the elderly as well. If a Hindu female
dies, it is obvious that in most of the cases the female would prioritise her own parents
over her husband’s. Because of this section, the wife’s parents not only lose their child but
they are also put behind in the line to inherit her property that are most likely to not get a
chance to avail. Keeping this in mind, another issue which is of concern is that there are a
lot of parents with a single female child so when they marry off their only daughter and
she dies they not only they go through emotional trauma but also do not get what they very
rightfully deserve for growing up. Alongside they start facing financial problems. This is
a huge problem when we notice that the self acquired property of the female does not go
to her parents but goes to her in-laws just on the basis her not being a Hindu male i.e., on
the basis of her sex. This is how the elderly who are the parents of married Hindu females
are affected in huge numbers and are discriminated against for the biases misogyny and a
problematic statute made under those customs created. On a side note, the elderly being
pushed to their extreme financial worst sets an awful example for the society and it can
also be said that with every dejection an elderly parent of married woman, comes a huge
risk of increasing son preference. This also increases the chances of female infanticide
thus creating a huge difference in the sex ratio.

Constitutional Implications

Our constitution guarantees fundamental rights to every citizen without taking in any cultural
or biological differences into consideration. It is deeply disheartening that after 71 years of a
developed constitutional jurisprudence, sections like Art 15(1) of the HSA act as codified
means of promoting inequal treatment of married women. Understanding the importance given
to personal law in the country, these provisions are often protected under the freedom of
conscience, practice and propagation of religion as given to the communities under Article 25
and 26 of the constitution. Given the communal tension with regard to amendments made in
personal laws and the outrage that follows, various precedents show that both the judiciary and
executive have frequently been hesitant in making changes in these matters. It should be noted
that along with the right guaranteed to the people to freely profess their religion, the constitution

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also consists of provisions that limit the said freedom it when it can be seen as a threat to the
any other fundamental right or the social welfare of the citizens. These limitations are present
in the form of certain provisions of the constitution, namely Article 25(1), Article 25(2)(b) with
addition to the legislative intent behind the making of these laws. Under Article 25(1), all
religious practices are subjected to public order, morality and can be restricted if it is in
violation of part III of the constitution. Art 25(2)(b) takes one leap further and gives the State
the power to amend or introduce reforms with regard to any problem rooting from religious
grounds. Similar principle was laid down in the case of Sardar Syedna Taher Saifuddin v. The
State of Bombay5as it was said,

“laws providing for social welfare and reform are not intended to enable the legislature to
reform the religion out of existence or identity.”

It is thus apparent that the constitution clearly favors social welfare and rights over religious
customs that are being carried out through personal laws. In the given context, the HSA
amendment in 2005 failed to point out the direct infringement of the part III of the constitution
by Section 15 of the act where the rights of not just married women but a large portion of
vulnerable parents of these women were being affected by it. Provisions infringed by the
section with respect to both women and elderly are further discussed below.

The violation of Fundamental rights ( 14,15 21)

Article 14
In the case of Maneka Gandhi v. Union of India6 of India it was laid down that,

“Article 14 strikes at arbitrariness in State action and ensures fairness and equality of
treatment. The principle of reasonableness, which logically as well as philosophically, is an
essential element of equality or non-arbitrariness, pervades Article 14 like a brooding
omnipresence.”

One of the most important constitutional values guaranteed to the citizens is the right to fair
and equal treatment given to all leaving no scope for privilege or oppression between
individuals. Article 14 acts as the guarding provision for ensuring equal enjoyment of the rights

5
Sardar Syedna Taher Saifuddin v. The State of Bombay 1962 AIR 853

6 Maneka Gandhi v. Union of India (1978) SCR (2) 621

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conferred by both men and women and section 15(1) of the Hindu Succession act goes directly
against the guiding principle of the article.

Bearing in mind the diverse demographic of our country, the principle of equality has been
made with required layers to it. People living under unfortunate or unequal circumstances were
given separate treatment to ensure holistic welfare to each and every citizen and therefore,
classification was allowed under the expansive definition of the article. However, in order to
keep the classification from getting misused, the principle of reasonableness was added to it
with Intelligible differentia (a reasonable basis for classification) being mandatory for any form
of classification in the law. Similar principle was laid down in the case of State of West Bengal
v. Anwar Ali Sarkar7 where it was further added that there must be rational nexus on which
classification can be made in the application of a statute.

As mentioned above, Sec 15 draws a distinction between the succession rights of a female and
a male intestate which in turn not only violates the ethos of Article 14 but it also leads to the
unequal treatment of the parents of the deceased. It is bizarre to imagine that in the 21st century,
a Hindu married intestate woman’s In-laws who might or might not have been residing with
the deceased are given priority over her own parents who raised her. One of the main reasons
behind this unjust hierarchy can be traced back to the definition of marriage under Hindu law.
Under Hindu law, where the sacrosanct practice of marriage is considered to be a ‘union’ of
two families, the laws applied to the woman turns it into more of an economic transaction with
the woman being a financial addition to the family. Apart from the blatant objectification of
women under the law, there is also inequality on the basis of sex as the Hindu intestate male is
in no way required to prioritize his wife’s parents over his own. It can be easily made out that
the classifications made under the law are, (a.) Sex of the individual, (b.) Marital Status of the
individual leading to the unequal treatment of the parents because having a married daughter
instead of a son. Clearly, these classifications directly contravene the tests laid down under
reasonable classification with no rational nexus and are thus, unconstitutional.

DPSPs

Article 36-51 under Part-IV of Indian Constitution deal with Directive Principles of State
Policy (DPSPs). They are borrowed from the Constitution of Ireland, which had copied it from
the Spanish Constitution. DPSPs are ideal policies and rights that are needed to be kept in mind

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by the state when it formulates new policies and laws. There are various definitions to Directive
Principles of State such as ‘instrument of instructions’ and these seek to establish economic
and social democracy in the country. We are now going to discuss how there are certain DPSPs
that are tailored for the elderly. It is of a serious concern that these few policies and laws do
not only affect all the citizens but only certain group of people i.e. the elderly and their violation
is often grossly overlooked.

Article 38 of the Indian Constitution states,

“Promote the welfare of the people by securing a social order through justice—social,
economic and political—and to minimize inequalities in income, status, facilities and
opportunities”.

When we read this article we see how it talks about the welfare of the people and to get them
a secure social order. However, as mentioned earlier, if there is only one daughter of the parents
and she is married off and dies suddenly without making a will then all the property would go
to her in- laws as per Hindu Succession Act Sec 15. There are a lot of elders who don’t work
after the retirement age or don’t get pension and through this their only child’s property and
their only way to provide themselves financially is taken away from them. If this is the case
then how do we expect all the class of the elderly are provided with the justice and equality? A
real implication of this section can be seen in the case of Om Prakash v. Radhacharan 8. In this
case, the plaintiff’s daughter who was a widow, was ejected from her in-laws’ house after being
accused of being liable for her husband's death without proof. The heirs did not inquire about
the 15-year-old widow's well-being until her death in 1966, when the husband's heirs requested
that the property inherited by the lady be devolved to them. To the plaintiff’s greatest
misfortune, the court ruled in the defendant’s favor owing to this archaic provision.

Art 21 and the elderly

Now that we have discussed the constitutional impacts, let us talk about how article 21 is
affecting the elderly. Article 21 of the Indian Constitution mainly talks about protection of life
and personal liberty. “No person shall be deprived of his life or personal liberty except

8
Om Prakash v. Radhacharan 2009 (7) Scale 51

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according to procedure established by law.” Apart from discrimination on the basis of the
female intestate’s marital status and gender, we have already established that it also affects the
elderly. Recent studies in 2012 show that 87% of the Indian families still believe working after
the legal retirement age due to lack of a proper saving mechanism. As one can imagine family
is considered to be the ultimate source of economic and social needs. Imagine that there is only
one daughter in a family who is providing for the family and all of a sudden, she dies. Not only
the person who is dependent on her will not get the ongoing financial support that was the sole
basis of their financial income (if the parents not working after retirement or get pension) but
they also would not get the remaining property. On top of that, current government schemes
like the Annapurna Yojna and a few others target the vulnerable portion among the elderly who
are under Below Poverty Line or elders who are abandoned by their children, and only those
elderly persons come under the categories that are benefited by the scheme. However, the
middle-class elderly who fall under the vast majority of elderly citizens in India do not get any
kind of help from the government who solely depend on their children. Legislations and laws
are supposed to be made for the benefit of the people and it is not always restricted to the
mechanical law that are set in place. After judicial scrutiny if the court decides that this very
discriminatory provision is for there to stay, we are not only taking away the intestate’s parents’
last ray of hope that is their financial stability from them, we are also taking away their daily
necessities, their health care and their right to live. As it is seen in various precedents, if this
section is not amended or repealed this portion of the elderly quite literally cannot afford article
21 of the Indian Constitution anymore.

Conclusion

The ancient Hindu customs and their prevailing rules have often served as a major hindrance
between Hindu females and absolute liberty. In this paper, doctrinal research was applied to
the challenges faced by Hindu intestate females who die as married women and the fate their
elderly parents are left to face. It was found that the Hindu Succession act after its amendment
in 2005 still remains as an active catalyst of injustice served to Hindu women and her parents
as all of her property is given to her In-Laws and preference is given to distant heirs of the
husband over the deceased’s own blood. It was found that Art 14, 15, 21 and various DPSPs
regarding the elderly were being blatantly violated and a chunk of Indian parents who have
married daughters are having their livelihoods affected. The paper puts forward the

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implications of these serious violations and the impending threat that this section poses to not
just the elderly but the country altogether.

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