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The Hindu Succession Act was
passed in the year 1956. After Independence, the legislators
sought to give right over property to woman and consequent to it
the right to dispose of the property the way she chose and also
for her next of kin to inherit.
Unfortunately a distinction
was made in the way property of a woman and a man would devolve
when they would die intestate. Emphasis is placed on the
relationship by marriage and the source of the income. Though in
that age it was a prudent move as otherwise it would have been
widely protested against, by the Hindus. It was the first time
that women were being given the absolute right to own property, it
was a radical change from the past. Allowing the property to
devolve irrespective of the source or nature of tie-whether by
marriage or birth would have evoked widespread protest from the
Hindus who were already wary of the Act.
S. 15 of the Act, which is in
discussion, reads as follows:
(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 predeceased 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.
(2) Notwithstanding anything contained in sub-section (1),-
(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 predeceased 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 predeceased 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."
S. 16 provides that one clause excludes the other in subsection
(1) More than fifty years after independence and after the passing
of the Hindu Succession Act, the provisions have remained the
same. It is time to change the law regarding inheritance of
property of a Hindu female dying intestate. As we are moving
towards a society which is placing women at par with men, it is
unjust that their inheritance laws should differ.
The problem with the Act is that it maintains patriarchal values -
protects the source of income, and strength of marriage tie over
blood relationship, which need to be addressed. When a woman dies intestate,
the property must go to those near and dear to her. This is
certainly the principle followed when a man dies intestate. Then
why is it that heirs of the husband are given preference over the
deceased's parents?
Also, why must the source of
the property matter. Why cant all the property go according to
general rules of succession? Further when one seeks equality it
must be both ways. A widow gets the husbands property, inherited
from his parents, even if he dies issueless. But a widower would
not get a share of his wifes property, which she inherited from
her parents, if she died issueless. It is unfair to the husband.
Further assuming a situation
where the woman dies issueless, leaving behind property inherited
from her mother, and the father is alive, S.15(2)(a) grants the
property to the heirs of the father and not the father. This is
rather ludicrous. There is also no reason why the mother should
not inherit property in a similar situation where the father dies
leaving behind the property.
Thus, it can be seen that
there is a need to alter the provision. The same suggestion was
also made to the Government but it did not implement the same in
the 2005 Amendment, which was a great step towards the equal
rights for women. Women were made coparceners, which till then
comprised only of men. The suggestion by the Department Related
Parliamentary Standing Committee on Personnel, Public Grievances,
Law and Justice, to the Rajya Sabha is These sections should be
re-examined and reframed so that the provisions enunciated by
these do not run contrary to the Amendment Bill. The Ministry may
look into the matter and take appropriate steps accordingly.
I propose that rather than
reframing the section, the Legislature delete sections 15 and 16,
and make S. 8 applicable also to a woman dying intestate.
It is necessary for a truly
equitable society, which doesn't discriminate between sexes, that
such provisions are removed. They are rather insignificant as they
do not directly affect a woman's right, but these provisions need
to be removed, especially considering the progress women
have made in the past half century, and our struggle to become a
society which treats men and women on an equal footing.
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An
Urgent Need For Change In The Hindu Succession Act - Regarding
Inheritance Of Property Of Female Hindu Dying Intestate
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The
author can be reached at:
trayosha@legalserviceindia.com /
