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Rights Of Women Under Hindu Succession Act 1956 : Justice A Task Ahead

Hindus have worshiped gods and goddesses with equal fervor since ancient times. However, the proprietary rights of females have always been suppressed to a large extent. Manavadharmasastra is the oldest constitution for the Hindu laws of ancient Indian society. Manu is mentioned in the Vedas itself and is described as the law-giver. However, the writings in Manu Smriti about women have been debated and criticized, as in reference to the status of the Hindu female, it states that:

"IX.3 Her father protects (her) in childhood, her husband protects (her) in youth, and her sons protect (her) in old age; a woman is never fit for independence."

According to Manu, women do not have property rights, and if they acquire any property by their own, then that property will belong to the male under whose protection they are living. But in Manu Smriti, Chapter III Verses 55 to 57 it is stated that:

"where women are honored and adorned, there Gods are pleased, but where women are not honored no sacred fire yields rewards"

Nevertheless, Manu recognized a legal obligation on the part of the husband to make arrangements for his wife's due maintenance even if he goes abroad for business purposes. The daughter's right to inherit was also disputed as she was entitled to inherit only in the absence of a male member.

Even Mayne's in "Hindu Law and Usage" observes as under

"The question in each case will be, who are the persons who have taken an interest in the property by birth. The answer will be, that they are the persons who offer the funeral cakes to the owner of the property, that is to say, the three generations next to the owner in unbroken male descent."

Thus, according to the passage, female members of the family are barred from possessing the right of survivorship. Females though have the right to maintenance. Only stridhan was treated as the proprietary wealth of the Hindu female.

The Constitution of India accords socio-economic and political justice, equality of status and of opportunity assuring the dignity of person with stated freedoms. Article 14 guarantees equality. Article 15(1) abolishes discrimination and removed disability, liability or restriction on grounds of sex and ensures equality of status. Article 29(2) gives equal right to education. Earlier it was only because of the efforts of social reformers that the Hindu Women's Right to Property Act, 1937 was enacted. Prior to 1937, there was no codified law governing the rights of the Hindu female, which were largely governed by customary practices. Under the said Act, the ideology of all the schools of Hindu Law was modified so as to give greater rights to the Hindu women by affecting not only the law of co-parcenery- but also the law of alienation, inheritance, partition and adoption. It entitled a widow to a share equal to her son, but disentitled her from becoming a co-parcener and therefore, widows only had a limited estate in the Joint Hindu Family property of their deceased husband, subject to partition. The obligations, under the Shastric Hindu Law, to maintain a Hindu widow out of the properties of her deceased husband received a statutory recognition with the coming into force of the Hindu Women's Right to Property Act, 1937. The position of daughters' right of inheritance as stood under customary law was still left untouched by the legislature. The Act of 1937, which was enacted to enlarge the property rights of all the Hindu women, was progressive and succeeded in strengthening the rights of widow to some extent, but much more was needed.

Grant of Absolute Ownership: Liberal Interpretation

After facing a lot of criticism on the Hindu Women's Right to Property Act, the Parliament decided to come up with an improved legislation dealing with the property rights of women and enacted the Hindu Succession Act, 1956. Section 14 of the Act brought much needed reforms towards the rights of the Hindu female, making them owners of the property in her possession in absolute terms. The Act also sought to remove the disability and discrimination in the right to possess and enjoy the property by a Hindu female, thus paving the way for removing the restrictions under Shastric Law. It was an effort to strike a balance between Shastric law and contemporary Hindu Law.

Section 14 of the Hindu Succession Act, 1956 reads as under:

"14.(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.-In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other Instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."

Now, a Hindu female could acquire absolute ownership in property by way of inheritance, maintenance, prescription, decree, agreement, gift, will or partition. Previously, a property acquired by a woman from her husband was not her `Stridhan', and on the death of that woman, such property would revert back to the heirs of her husband and not her heirs. The powers of the Hindu female to dispose off the property were also very limited. But after 1956, due to reformative judicial reasoning, the scope of section 14 came to be interpreted in the widest possible manner. Now, any property, movable or immovable, and in possession of the widow in lieu of her right to maintenance, gets converted into an absolute estate. Even the right to possess, as against actual possession, has been recognized as possession for grant of absolute estate. This is, however, subject to the provisions of Section 14(2).

A more elaborate discussion about the rights of a female Hindu before and after the coming into force of the Hindu Succession Act 1956, and particularly the provisions of Section 14 of the Act, is contained in a three Judge Bench judgment of Hon'ble Supreme Court Court in V. Tulasamma and others v. Sesha Reddy (Dead) by LRs reported as 1977(3) SCC 99. Dealing with the provisions of the Hindu Succession Act, 1956, the Court observed :-

"The Act is codifying enactment, and has made far-reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate............"

Fazl Ali, J., in his exhaustive discussion in the said judgment dealing with the question of the pre-existing right of a Hindu widow, opined that the provisions of the Section must be liberally construed in order to advance the object of the Act, which is "to enlarge the limited interest possessed by a Hindu widow" in "consonance with the changing temper of the times".

Thereafter, the provisions of Section 14(1) have been applied most liberally in favor of a Hindu widow. However, at times the courts have leaned towards giving effect to Section 14(2) over Section 14(1), particularly in case of wills executed after 1956 granting limited estate to a female. Reference can be made to the decisions rendered by the Hon'ble Supreme Court in Ranvir Dewan v. Rashmi Khanna, 2018 AIR 62 SC, Shivdev Kaur (D) By Lrs. v. R.S. Grewal, 2013(4) SCC 636. Such disposition of property in my opinion, is nothing but a conferment in deemed recognition of the pre- existing right of the Hindu female for a claim of maintenance. The reformative judicial interpretation of law should not be allowed to be diluted to give precedence to Section 14(2) and the same has to be read down so as to advance the object of the 1956 Act and promote the socio-economic ends sought to be achieved by this long-needed legislation by giving widest possible interpretation to section 14(1) of the Act.

Interest in co-parcenery: Prospective or Retrospective

The Hindu Succession Act, as noticed above, made a revolutionary change in the law for female Hindus. For the first time, a Hindu female could become an absolute owner of property. She could inherit equally with a male counterpart and a widow was also given importance regarding the succession of her husband's property as also to her father's property. But even after fifty years of Independence, a woman was still neglected in her own natal family as well as in the family she married into because of blatant disregard and unjustified violation of these provisions by some of the personal laws.

With these points in mind, the 174th report of the Law Commission, "Property Rights of Women: Proposed Reforms under the Hindu Law" recommended amendments, mainly in Section 4 and 6, which have been implemented through the Hindu Succession (Amendment) Act, 2005, to provide that the daughter of a co-parcener in a joint Hindu family, governed by the Mitakshara Law, shall, by birth, become a co-parcener in her own right in the same manner as the son, having the same rights and liabilities in respect of the property as that of a son. All women are now entitled to be treated at par with their male counterparts and daughters, whether married or unmarried, are co-parceners in the ancestral (joint) family property. They can inherit through intestate as well as testamentary succession. They are also allowed to hold property in all forms and by all means, at an equal standing as males. However, this comes with a specific rider that the amendment will not affect or invalidate any disposition or alienation, including partition or testamentary disposition, which has taken place before 20.12.2004.

Contentiously, some have argued that these reforms go beyond addressing the grievance of women and instead create reverse discrimination for male members. In fact out of 16 class 1 heirs, 11 are females and only 5 are males. This aspect has been sought to be addressed by the 204th report of the Law Commission, by recommending to include the `son's daughter's son' and the `daughter's son's son' within the `Class I' heirs. Still further 208th report of the Law Commission suggested to include family arrangement and oral partition in the expression "Partition" as mentioned in the explanation to section 6, understandably to avoid ignition of any dispute between the parties where there is none, and maintain harmony amongst family members.

Like any other amendment in a statute, the 2005 amendment also suffered from contradictory interpretations by courts. The Karnataka High Court interpreted the Amendment Act to have retrospective effect from the date of the coming into force of the Hindu Succession Act, 1956, whereas the Full Bench of the Bombay High Court interpreted the Amendment Act to have effect from the date of coming into force of the Amendment Act. The Hon'ble Supreme Court, in Parkash & others v. Phulavati others 2016(2) SCC 36 laid down that the provisions of the amendment are applicable prospectively to living daughters of living co-parceners as on 9.9.2005, irrespective of when such daughters are born.

However, in Danamma @ Suman Surpur v. Amar, 2018(3) SCC 343 the Court granted the same benefit to a daughter of a co-parcener who had died much before 9.9.2005. This created a divergence of legal approach and the matter has now been referred to a larger bench for resolution in the case titled Civil Appeal No. 32601/2018 Vineeta Sharma v. Rakesh Sharma. Although, if we glance at the well settled principles of Hindu law, a co-parcener has a share in the property by birth, and the date of death ought not to make any difference in the determination of entitlement of a share in the co-parcenary. The Amending Act makes the daughter a co-coparcener, having a birth right at par with the son. The interpretation cannot be restrictive so as to defeat the very object of the Act, which was to end the discrimination that existed for decades. Thus an expedient resolution through legal discourse is necessary on the issue to avoid uncertainty and delay in the implementation of the Amending Act in the right perspective. Additionally the question of grant of right in the joint family property of the in-laws also need to be further debated and deliberated to safe guard her interest in the matrimonial home.

Principles of Succession: Scope for Further Reforms

Advancing further, another provision of Hindu Succession which needs attention would be Section 15, which provides a definite and uniform scheme of succession to the property of a female Hindu who dies intestate. There are also rules set out in Section 16 of the Act which provides for the order of succession and the manner of distribution among heirs of a female Hindu. The property is inherited depending on the source of acquisition or manner of inheritance of property. But in case of the self-acquired property of a Hindu married female dying intestate her property devolves on her husband's heirs. This means that her paternal and maternal heirs do not inherit anything, but the distant relations of her husband would inherit shares as her husband's heirs.

Since subsequent to the enactment of the Hindu Succession Act, 1956, there have been sweeping changes in the social structure in the past few years. The consequences are that women are owning property out of their own earnings, have higher education enrollment, getting greater legislative representation and are socially and economically independent. That in the 207th report of the Law Commission it has been recommended that in the present scenario, when a woman is entitled to inherit property from her parental side as well as from her husband's side, it will be quite justified if equal right is given to her parental heirs along with her husband's heirs to inherit her property. Therefore, as a necessary consequence of changing times, Section 15 should be amended, so that in case a female Hindu dies intestate leaving her self-acquired property with no heirs, as mentioned in Clause `a' of Section 15, the property would devolve on her husband's heirs and also on the heirs of her paternal side, whomsoever is closer in degree of relationship.

The 174th Report of the Law Commission of India has also examined the subject of "Property Rights of Women:Proposed Reforms under the Hindu Law", and after eliciting views from the public, had noted that the rules of devolution of the property of a female who dies intestate reflects patriarchal assumptions. The 174th Report had explained the position thus:-

"2.5 Again, the patrilineal assumptions of a dominant male ideology are clearly reflected in the laws governing a Hindu female who dies intestate. The law in her case is markedly different from those governing Hindu males. The property is to devolve first to her children and husband; secondly, to her husband's heirs; thirdly to her father's heirs, and lastly to her mother's heirs. The provision of section 15(2) of HSA is indicative again of a tilt towards the male as it provides that any property she inherited from her father or mother should devolve, in the absence of any children, to her father's heirs and similarly, any property she inherited from her husband or father-in-law, to her husband's heirs. These provisions depict that property continues to be inherited through the male line from which it came either back to her father's family or to her husband's family."

Conclusion

Thus, despite radical changes having been brought about by various enactments, which have completely altered the position of the Hindu female in the present days cenario, various material recommendations are yet to find place in the statute.

In the male dominated society, women are discriminated against in all matters, much so in rural India on the pretext to plug the problem of fragmentation of land holdings into smaller parts, or the property going outside of the family. As per a study conducted by the World Bank Legal Research Group in 2010, 57 countries had made reforms that strengthened women's economic rights, including 28 countries that had eliminated all of the constraints. The law is definitely evolving but it is merely a tool and what is needed is social transformation. There has been tremendous progress made in closing many of the gender gaps in formal property rights and legal capacity. However, notwithstanding the constitutional guarantee of equality and fairness, much more is required to be done by raising awareness and bringing about a change in the social mindset. Change is possible, but it is a just a beginning as change is not complete.

(The author is a lawyer practicing in the High Court of Punjab and Haryana at Chandigarh and the views express are personal only)

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