SECTION 15 OF THE HINDU SUCCESSION ACT, 1956- JUSTIFIED OR NOT?

I) Introduction:

The Hindu Succession Act, 1956 (hereinafter referred as ‘the Act’)came into force on June 17th, 1956 with basic objective of providing rules of succession to property of Hindus. Prior to the enactment of this Act, within the Hindu community, there was a wide divergence with respect to the application of laws relating to inheritance. This act has been passed to meet the need of a progressive society.

The Act provides separate schemes of succession for male and female dying intestate. Section 8 of the Act provides general rules of succession in case of a Hindu male dying intestate and Section 15 of the Actlays down general rules of succession of property of a Hindu woman. This separate provision is a matter of debate and its various aspects are discussed as below.

II) Is the separate scheme justified?

A unique feature of the Act is that, it provides for two entirely different schemes of succession based on sex. No other succession law in India like laws applicable to the Parsis, Christians or Muslims, has a provision parallel to this and they all lay down one scheme and one set of heirs for succession of property of male or female dying intestate. The reason for providing such scheme under the Hindu law could be linked to give an emphasis on the conservation and the protection of the property in a family from where it came. A woman in a patriarchal setup is visualized as having no permanent family of her own. Similar setup has been followed in almost all the Indian families irrespective of their religion, yet no other succession law provides separate scheme of succession for a male and a female dying intestate.

It may be argued that the family unity can be maintained by providing different sets of heirs of a male and a female for succession of their property. It appears strange, are the communities that are governed by a single scheme of succession unable to secure the interest of the family, which the legislatures tried to protect through the Act?

III) Whether it is in accordance with the old Hindu Law?

The Act adheres to the old principles of having different rules of succession to the property of a woman, but irrespective of the schools of the Hindu law and irrespective of various aspects such as whether married or unmarried (if married, then whether in the approved or unapproved form), the kind of ‘Stridhana’ left by her and so on.

As per the old Hindu law a woman was not having any property of her own by way of absolute ownership except ‘Stridhana’ for succession of which the daughter was always preferred over the son and the husband. But this concept was abolished by the Act. Section 14 of the Act provides express right to a woman to have her own absolute property and the daughter and the son of a woman don’t exclude each other for the succession. It means that the Act has not adopted the principles of the Mitakshara school and rejected its rules of preference in favor of daughter, in the case of ‘Stridhana’ other than shulka2.

IV) Constitutional validity:

The framers of the Indian Constitution took note of the adverse and discriminated position of a woman in the society and took special care in order to give her equal status. Article 15 of the Indian Constitution, thus not only prohibit the discrimination against a woman, but also in the appropriate circumstances, empowers the State to frame discriminatory provisions favoring a woman through the Article 15 (3). The provision of the Article 15 (3) should be used only to provide any benefit to a woman3. By incorporating Section 15 in the Act, to which woman the legislatures wished to favor is unanswered as the object of benefiting a woman is not satisfactory. No woman is either expressly or impliedly benefited by this provision.

V) Anomalies in drafting and Suggestions for Amendment of Section 15 of the Act:

Presuming but not admitting to the provision of the Act, there is ample scope to amend the mistakes of drafting the Section 15 of the Act, which gives rise to many problems.

According to Section 15 (2) (a), when a Hindu woman dies intestate the property inherited by her from her father or mother, in absence of her children or grand-children, devolves only upon ‘the heirs of her father’. In Passamma v. Bhimadas4 a three judge Division Bench of the Andhra Pradesh High Court held that the father of a woman dying intestate would be excluded even if he would be alive. This judgment seems to be illogical as the father is excluded even if he is alive and thus gives absurd meaning to the section. Therefore, to avoid such absurd interpretation of the Section 15 (2) (a) it could be amended by substituting the words “father’s heirs” by the words “father and in default of father, upon the heirs of father”.

This Section 15 (2) (a) provides that the property inherited from the father will be reverted to the heirs of the father in case female dies issueless. It also provides that where she inherits the property from her mother, it should also be reverted to her father’s heirs and her mother’s heirs are not entitled. In the eyes of the Law, husband and the wife are two different persons. Therefore, the provision should have been that if the property was inherited from her father it must revert to the father’s heirs and that from mother to mother’s heirs, as both the categories are distinct from each other. This could be the other way of amending the section.

VI) Language of the Law:

When wife dies, husband is referred as ‘widower’ and when husband dies then wife is referred as ‘widow’. In this Act, the term ‘widow’ is used in sections, but ‘widower’ is not used. So wherever the term ‘husband’ is used in relation with his deceased wife, it should be substituted by the term ‘widower’. Also in Section 15 (2) (a) and (b) of the Act, the phrase ‘in the absence of’ is used, the meaning of which is not clear because, it can be interpreted as ‘the absence at that particular time or place or non –existence’. Therefore, it should be amended as ‘without any children or grandchildren’.

VII) Conclusion:

The whole scheme of Section 15 of the Act shows that the legislatures do not treat a woman as an independent individual and do not recognize her own heirs or her own relations, but ascertain them with respect to her father or husband or mother.

Therefore, even after amending Section 15 (2) of the Act as suggested above, discrimination on the basis of sex will still continue. In such a situation the only remedy available is to scrap Section 15 of the Act.

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1. Section 15: General rules of succession in the case of female Hindus:

(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. 

(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 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.

2. S.V. Gupte, Hindu Law, [Vol. 2,3rd ed, (1981), AIR Publications, Nagpur.] p. 514

3. M.P. Jain, Indian Constitutional Law, [5th ed, (2003), Wadhawa Publication, N.agpur.] p. 907

4. Pasamma v. Bhimadas, ILR 1977 AP 418

References:

– Mulla, Principles of Hindu Law, [Vol. II, 20th ed, (2007), LexisNexis Butterworths, New Delhi.]

– Paras Diwan, Hindu Law, [2nd ed, (2002), Orient Publication, New Delhi.]

– Paruck, The Indian Succession Act, 1925, [9th ed, (2002), LexisNexis Butterworths, New Delhi.]

– Archana Parashar and Amita Dhanda (Editors), Redefining Family Law in India, [1st published 2008, Routledge, New Delhi]

Originally written by Mr. Gulshan Kolte, Gadchiroli.