The Indian Succession Act of 1925 was promulgated to adequately address the
undecided position of Indian Christians as Hindus and Muslims came under the
ambit of their personal laws. The Indian Succession Act of 1925 brought under
its ambit the Indian Succession Act of 1865, the Hindu Wills Act, the Probate
and Administration Act, as well as Parsi Intestate Succession Act and provided a
unified legislative framework which allowed for property to devolve either
through testamentary or intestate succession.
While no law sets out to be
discriminatory, the Indian Succession Act unknowingly reinforces patriarchal
socio-economic inequalities, a rigid understanding of the gender binary as well heteronormative ideals of marriage and family. Section 33 of the ISA deals with
the rights of widows which stipulates that 1/3rd of the property belongs to the
widow and 2/3rds of the property goes to the lineal descendants, and when there
are no lineal descendants, half goes to the widow and the other half to the
In case of an only surviving child, the devolution of property between
the widow and the child of the deceased would be disproportionate as the child
would get the majority share which is 2/3rd of the property while the mother of
said child would only be left with 1/3rd of the property. Men as the surviving
spouse do not have to undergo such disproportionate devolution of assets.
Supreme Court lawyer Sunil Fernandes highlights,  the Indian Christian
widow's right is not exclusive, and the widow of the intestate only gets the
whole property only if the intestate has none left who are kindred to him.
Section 33A of the ISA provides that if the net value of the property does not
exceed Rs 5,000/- the whole of the property goes to the widow of the deceased
but where the net value exceeds the sum of Rs 5,000/- , she is entitled to Rs
5,000/- with interest at the rate of Rs 4% per annum from the date of death of
husband until payment.
However, as clause 5 (b) of section 33A reveals, this
provision is not applicable in the case of Indian Christians depriving Indian
Christian widows of the benefit of this provision which violates the clause of
equality as there is no rational nexus for such discrimination between Parsi
widows and Christian widows. Furthermore, Section 42 of the ISA specifies that
in the absence of lineal descendants of the male intestate, the property
devolves only to the father of the intestate after the widow, and not the
According to Section 44 of the ISA, The mother of the male
intestate only gets a share in his property if her husband is deceased and even
then, gets an equal share as the brother and sisters of the deceased. In this
case, the position of the mother of the deceased is equated to that of the
siblings of the deceased which is not the case for the father of a deceased male
. In this way, the gender hierarchy is reproduced.
As Poonam Pradhan Saxena puts
To exclude the mother in the presence of the father ignores the role that
the mother plays in the upbringing and settlement of the child from the
beginning to the attainment of maturity.
Furthermore, Section 44's
insistence on the property of the deceased being transferred to the brothers or
sisters of the deceased equally, reinforces rigid characterizations of gender
into sanitized categories of male or female and disqualifies siblings who are
undergoing transition, identify as nonbinary or are intersex. This statutory
provision unwillingly is biologically essentialist as it deprives transgender
people of their fundamental right to identify as man, woman or neither and
identify as their birth assigned gender in order to become a beneficiary of the
order of succession.
The Supreme Court in National Legal Service Authority v.
Union of India & Others
, gave transgenders the right to identify as the third
gender granting them constitutional protection and cementing their right to
self-determination, education, property, employment, dignity, and equal
status. Therefore, there is an urgent requirement for the law to become
cognizant of the legal rights of people of the third gender or transgendered
The legal developments post Navtej Singh Johar v. Union of
, and the right to live in relationships being accorded to
non-heterosexual couples and the succession rights that emanate from such a
cohabitate relationship demand that the order of intestate succession widen its
ambit to include non-heterosexual relationships and put them at par with
Additionally, the ISA has no limit on the
testamentary disposition of property allowing for women to be completely written
out of the wills of parental figures as is customary in our patriarchal society
wherein the continuation of the family name through the male heir bequeaths them
with the entirety of the family property.
This will also allow for gay, lesbian,
transgender, non-binary, and intersex individuals to be written out of wills and
the entire property being transferred to the male heir or heteronormatively
The following amendments to the act will help to remove the discriminatory
infirmities from the ISA:
- Section 33 of the ISA be amended to limit the category of kindred kin of
the deceased male and the position of the surviving widow be elevated to be
at par with the position of a surviving husband. Furthermore, the special
provision under Section 33A should be made applicable to Christian widows as
well. Additionally, as was suggested in the 110th Law Commission report, the
amount should be increased to Rs 35,000/-, and the rate of interest be increased from
4% to 9% on account of the rising inflation rate and the depreciating value of
- As was highlighted in the 247th Law Commission Report, the status of the
mother and father of the deceased male intestate should be brought at par
with each other under Section 42 and 43 of the ISA which would have the
effect of both parents inheriting their shares equally at the same time as
opposed to just the father, in the absence of lineal descendants.
- Furthermore, to remove the biologically essentialist element of Section
44 of the ISA, the word brother and sister should be changed to include the
word sibling/siblings which would bypass the need for transgender to
identify with their gender assigned at birth. A similar recommendation
was made by the Delhi Minorities Commission for inclusion of the third
gender to section 44.
- Some reports suggest that the Indian Succession Act would benefit from
implementing a testamentary limit like the one under Muslim personal law
wherein testamentary succession is allowed only for 1/3rd of the total
property of the deceased.  This would have the effect of safeguarding
women as well as non-heterosexual, non-cisgender, non-binary, intersex individuals from being
completely excluded from the wills of parental figures.
- Another line of amendment would require the recognition of
non-heterosexual relationships in the colour of marriage to be placed at par
with heterosexual marital unions and according the same succession rights to
- Property Rights in India: Women Are Not Getting Their Due; Here Is How
The Financial Express. Retrieved 5 June 2021, from
- Kusum K and Saxena PP, Family Law Lectures (LexisNexis Butterworths
- (2014) 5 SCC 438.
- AIR (2018) SC 4321.
- 110th Report of Law Commission of India on the Indian Succession Act
- 247th Report of Law Commission of India on the Indian Succession Act
- Towards Equality: Report of the Committee on the Status of Women in
India, Ministry of Education & Social Welfare Department of Social Welfare,
Government of India. Retrieved 5 June, 2021, from https://www.worldcat.org/title/towards-equality-report/oclc/1801384