Discriminatory Nature Of Section 15, The Hindu Succession Act,1956

On 31 January 31, this year, the Supreme Court of India has finally ordered that the Writ Petition^[1] filed under Article 32 challenging the constitutional validity of Section 15 of the Hindu Succession Act, shall be heard by a three- judges bench of the Court.

Discriminatory Nature Of Section 15

Section 15 deals with female succession. Section 15(1) is a general provision that provides a list of heirs who would inherit in case a woman dies intestate. Section 15(2) is more specific, it provides that if a woman inherits property from her mother or father and if she dies issueless then that property would revert to the heirs of her father and would not follow the order provided under Section 15(1). Similarly, if a woman inherited a property from her husband or father-in-law and she dies issueless then that property would revert to the heirs of her husband.

The plain reading of both the clauses of Section 15 may not give an impression that how discriminatory this provision is. However, a combined reading of Section 8 and Section 15 will bring the problem to the surface.

The order of succession given under Section 15 is discriminatory for two primary reasons. One, in complete contrast to Section 15, Section 8 of the HSA provides the order of succession for a Hindu male dying intestate and there is no concept of property reverting to the source. There is a schedule to the Act providing a list of class I class II and class III heirs for a male. and none of the lists makes any mention of heirs of the wife. Second, even under the order of succession provided in Section 15(1) husband and his heirs are given priority over the wife's parents. the order of succession under clause one is (i) children (ii) husband and his heirs (iii) parents and so on. Section 16 clearly says that only in absence of (i) category (ii) will inherit, similarly (iii) category will inherit in absence of (i) and (ii) and so. So if a widow dies intestate and issueless any of her property except what she has inherited from her parents or husband/father-in-law would go to the husband's heir to the exclusion of even her parents.

One very common explanation provided for preferential treatment of men in order of succession is to "ensure family unity" which would mean blood relations. Interestingly, when a woman's property is inherited by her husband's heir, there is no blood relation. Since there is no specific provision for the succession of self-acquired property of a female it ends up going to the heirs of a husband over a woman's blood relatives as close as parents or siblings. Thus, it is safe to say that priority to blood relative only applies to males and not females and is therefore discriminatory.

Tracing The Journey Of Section 15 Of The Hindu Succession Act

This provision was not part of the recommendations of the Report of the Hindu Law Committee. The Joint Parliamentary Committee, which drafted the final version of the Hindu Succession Bill, 1954, specifically added the provision given in Section 15. The Committee justified this scheme of source-based succession on the grounds that it would "prevent properties from passing into the hands of persons to whom justice would demand they do not." The implicit assumption is that properties are only supposed to pass through male lines. This is also borne out by the fact that in the case of property inherited from the mother, the heirs of the father get priority, not the natal relatives of the mother. This explanation of different order of succession on the ground that it prevents property from going outside the family becomes disputable given that the class II heirs of a Hindu male are his daughter, sister's son, and sister's daughters.

The 174th Report of Law Commission of India pointed out this discrimination and observed, "The provision of Section 15(2) of HSA is indicative again of a tilt towards the male... 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 back to her husband's family."

In 2008 the Law Commission published its 207^th report and had suggested a change in this provision. The commission recommended that a clause (c) may be added to Section 15 (2) which would deal with the self-acquired property of a woman who died issueless and intestate. This property can be inherited by both husband and parent's heir simultaneously. It doesn't take into account the fact that often a woman is abandoned by her husband or his family and makes no exception for such a situation.

In March 2013, Mr. Anurag Thakur introduced a private member bill to amend the HSA. The Bill recognizes that women are capable of acquiring property through their skills and thus, proposes that in case of inheritance of the self-acquired property of a woman who dies intestate and is not survived by her children or husband, preference should be given to her parental heirs. Unfortunately, the bill was not taken up for discussion, and eventually, it lapsed with the end of the 15th Lok Sabha's term in 2014.

In November 2015, then Member of Parliament from Hisar and the current Deputy Chief Minister of Haryana, Dushyant Chautala, also introduced the Hindu Succession (Amendment) Bill, 2015 as a private member's bill.

Similar to the 2013 bill, it sought to amend the HSA to provide equal rights of succession to the parents of a female Hindu who dies intestate, at par with those enjoyed by her husband.

The bill was introduced in the parliament, and the Parliamentary Standing Committee on Private Members' Business recommended that time be allotted for its discussion. However, it was not taken up for discussion in either House. Eventually, it too lapsed with the end of the 16th Lok Sabha's term in 2019

The Hindu Succession (Amendment) Bill 2015, was a genuine attempt in achieving gender neutrality. It suggested that under Section 15(1) mother and father of a Hindu woman would inherit simultaneously with the husband. It further provided for the addition of clause (c) to Section 15(2) that dealt with self-acquired property. It suggested that if there is a self-acquired property of a woman who has been abandoned and died issueless, then that property would go to the heirs of such woman's father and mother. Unfortunately, this ^{Bill lapsed}, and a step towards gender equality was missed.

Judicial Approach

There are two landmark judgments of High Courts that have discussed the constitutionality of this provision at length. Both the decisions are of a single bench and are contrary. The first case is Sonubhai Yeshwant Jadhav v.Bala Govinda Yadav^[2]. In this case, the constitutional validity of source-based succession under Section 15(2) of the HSA was challenged before the courts. The court upheld the validity of the Section and held that "the object of the HSA was to further the institutional integrity of the family and maintain continuous succession to property in favour of the family. To this effect, the heirs of the husband were permitted to succeed to a woman's property as a result of the merging of the female with her husband's family upon marriage."

Next came the case of Mamta Dinesh Vakil v. Bansi S. Wadhwa^[3], the Bombay High Court was hearing two suits wherein the constitutional validity of Section 8 and 15 were challenged. The first suit was filed by the maternal aunt of the deceased (a Hindu Male) challenging the vires of Section 8 of HSA as it unreasonably gives preference to the paternal aunt (father's relatives) over the maternal aunt (mother's relatives). The second suit was bought by the siblings of the deceased (Hindu Female). In this matter, the constitutional validity of Section 15(1) was challenged as in accordance with this Section the brother-in-law got the right to inherit the self-acquired property of the deceased to the exclusion of her siblings.

The court observed that: "The rules relating to the succession of Hindu females for the items specified in Section 15 are wholly distinct and different from those relating to succession of Hindu males in class I of the Schedule. The codification of the old Hindu law has not kept pace with the constitutional mandate of gender equality and in removing gender disparity completely." The Bombay High Court, therefore, in the instant case, held that the discrimination between males and females does not satisfy the test of equality under Article 15 of the Constitution, and consequently declared Sections 8 and 15 to be violative of the Constitution.

Since this judgment was passed by a single judge bench and in the Sonubhai case already a single judge bench has given a contrary view, the matter has been referred to a larger bench of Bombay High Court and the matter is still pending.

Several times, the issue of the constitutional validity of Section 15 has come up for consideration before the Supreme Court and the High Courts, unfortunately, the Courts have resisted from playing the role of Social Engineer, and this discriminatory provision continues to be implemented with all its rigour.

The Supreme Court case that highlights the discriminatory nature of this provision, and shows how the same leads to unfavorable outcomes is Om Prakash v. Radhacharan^[4]. In this case, Narayani Devi a Hindu woman became a widow after three months of marriage. Immediately after her husband's death she was thrown out of her matrimonial home and never got any support from them. She went back to her maternal home and with the support of her parents led a successful life. She managed to earn a good sum of money but unfortunately died issueless and intestate. After her death, her mother and brother made a claim to Narayani Devi's property which was challenged by Narayani's late husband's nephew (husband's heir). He claimed that as per Section 15(1), the self-acquired property of the deceased should go to the husband's heirs, as she died issueless.

The question before the court was whether Section 15(1) will apply or Section 15(2) in the case where there is a self-acquired property of a woman. The Court held that Section 15(2) specifically deals with property a woman inherits from parents or husband or father-in-law. Since self-acquired property doesn't fall under any of these heads it will be succeeded in the order provided under Section 15 (1). Thus, the Court put the self-acquired property in the category of the property that she inherits or receives from elsewhere. This led to Narayani Devi's property going to her husband's heir and not to her mother and brother who supported her throughout her life. The Court further opined that "sympathy and sentiments cannot be guiding principles to determine the interpretation of the law".

The Supreme Court approach can be questioned on three grounds: this decision fails to take into consideration the concept of equity and good conscience, which has always been the guiding principle for the Court and an essential part of the HSA. Mulla,^[5] in his book Principle of Hindu law, notes that "Section 15(2) of the HSA is also premised on the understanding that property should not devolve upon an individual to whom justice demands it should not pass". In the above judgment, the property went to an individual who never supported Narayani Devi in fact after her husband's death her in-laws threw her out of the matrimonial house. Further, the Court has also failed to exercise the power vested in it by Article 142 which empowers the Court to "pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it...". The Court in this case instead of relying upon strict interpretation and extending sympathies to the deceased's family could have made use of this article to do actual justice.^[6] Another important consideration of which the Court failed to take notice of was that the present scheme of succession given under HSA is justified on two grounds namely"keeping property within the family" and "sources-based devolution". Now, in this case, after Narayani Devi was thrown out of her matrimonial house, it was her parents who provided her support emotionally and financially. Thus, it was her parents who made her capable of earning money and having her property therefore it can be said that her parents were the source and after Narayani Devi's death, her property should have gone to her mother instead of being bestowed on her husband's nephew.

The aforementioned judgment set up a bad precedent which led to many women's natal relatives losing on to her property. For example, in Saroja Chandrashekhar and Ors v. The Union of India and Ors^[7], the High Court of Madras observed that Section 15 is "unfair to women and that it was drafted without envisaging the possibility that women could acquire their property". However, it did not go into the constitutionality of the Section it reaffirmed Om Prakash v. Radhacharan^[8] and recommended that the Law Commission should look into the issue and come up with more gender-neutral provisions.

In 2018 Madras High Court in Pushpa v. N. Venkatesh^[9] and Guwahati High Court in Anima Das v. Samaresh Majumdar^[10] again relied upon Narayani Devi's judgment. Although in none of these cases the validity of this Section was challenged.

Last year in May a case challenging Section 15 was brought before the Punjab and Haryana High Court. In this case, the husband passed away leaving his wife and his mother as legal heirs. A few months later the wife also passed away. The mother-in-law staked a claim to her property using Section 15. This was challenged by the wife's mother and she moved to the court challenging the said provision. The High Court has issued notice to the government showing its intent to deal with the constitutionality. The petitioner moved to the Supreme Court challenging the provision but the Court refused to take up the matter saying that they would "first like to have the benefit of High Court order.

So far various discussions have been held regarding this issue and the Courts tried to stay away from "judicial law-making". It has time and again been highlighted that the provision is against gender equality and needs to be changed but this has not moved the Legislature. So far two Law Commissions have recommended a change in the provision, two bills to make a change in Section 15 were introduced in the Parliament but the same lapsed. Now once again the onus has been put upon the Apex Court to check the validity of this provision and this time the Court has the benefit of knowing that despite the Law Commission reports and bills the Government has failed to bring the change.

The authors are Advocates and views are personal.