Need For Addressing The Gender Stereotypes Under The Hindu Succession Act, 1956

The root of the gender discrimination in case of property laws goes back to the patrilineal family structure which is the basis of HSA. "Patrilineal" means the property and title are held by the male lineage. The daughters were not entitled to any share of the inheritance except for a small amount in the form of stridhan while the male heirs inherited the entire ancestral property.

Women had access to only 2 different kinds of property under the Hindu Women's Rights to Property Act, 1937

1. Stridhan; property gifted to the woman during the time of her marriage or any other occasion like birth of a child. The woman had absolute rights over this property.
2. Limited-estate property; this includes property inherited through the husband of the woman after his death to which she was only a limited owner. In other words, the woman had a right to sustenance but not control or ownership on this property. Upon her death, the property was to be passed on to male-heirs of the family as absolute property. She had rights to sell or transfer only for restricted purposes such as a "bhog" - donation in the name of her husband, payment of debts incurred for maintenance of the family and marriage of the relations of the deceased like daughter or granddaughter.

Such practices and restrictions on women's ownership posed multiple issues: It fueled the practice of dowry - a curse that still lasts and is deep rooted in our culture and it gave rise to inequality based on gender; a violation of Articles 14 and 15(1) of the Constitution of India.

In order to overcome these issues, The Hindu Succession Act ( HSA), 1956 was enacted which gave women the right to absolute property under section 14 where she was given full rights including the right to sell or transfer the property inherited by her. However, the most important progression happened only in 2005 where an amendment was made to the definition of "coparcener" under section 6. "Daughter" was included as a coparcener and was given equal rights to inherit the ancestral property in the same manner as the son.

( Note: Many states such as Andhra Pradesh, Tamil Nadu, Karnataka, Kerala have given coparcenary rights to women since 1986 ).

On the surface, the 2005 amendment "seems" to have addressed the issues of inequality and dignity of women. But when put under scrutiny, crumbs of gender disparity become apparent.

Firstly, the Hindu Succession Act itself is based on the dwindling concept of Mitakshara, Dayaabaga inheritance systems followed in ancient India and which in turn are based on the stereotype that a woman, after marriage, rips herself from her parental family and attaches to the new family or in-law family. She discontinues being a member of the parental family and becomes a member of the in-law family only.

The stark contrast between section 8 ( ​General rules of succession in the case of Hindu males ) and section 15 (General rules of succession in the case of Hindu females) itself presents evidence to this very notion.

While the section 8 states that the property of a Hindu male dying intestate shall devolve:

• firstly to his own heirs ( class I )
• secondly to his class II heirs
• thirdly to his agnates and
• lastly to his cognates

Section 15(1) deprives the heirs of a female dying intestate to claim the same rights conferred to the heirs of a male under the section 8. It states that the property of a Hindu female dying intestate shall devolve:

• firstly, to her own heirs ( class I )
• secondly, to the heirs of her husband;
• thirdly, to her mother and father;
• fourthly, to the heirs of the father; and
• lastly, to the heirs of the mother.

And according to section 15(2), there are 2 exceptions to the rules stated under section 15(1):

• where she inherited the property from her father or mother, it shall devolve, in the absence of Class I Heirs, to the heirs of her father
• where she inherited the property from her husband or father-in-law, it shall devolve, in the absence of Class I Heirs, to the heirs of her husband.

Therefore, the self-acquired property of a woman, in the absence of her own class I heirs, is devolved upon the heirs of her husband and not her own. While in case of a man in the same situation, his property is devolved upon his own heirs and not his wife's.

The case of Omprakash & Ors v. Radhacharan & Ors highlights how unfair Section 15 is to women and their dignity.

Narayani was a young widow. She lost her husband 3 months into the marriage. Soon after, she was thrown out of her matrimonial home and her in-laws never bothered to care for her. At her parental home, Narayani was not only given care but also education and employment. Her mother and brother continued to be her family until she died.

After her death, the in-laws claimed her self-acquired property under sections 15 and 16 of The Hindu Succession Act, 1956.

The Supreme Court too ruled in the favor of the in-laws as the law clearly says so.

To conclude, the law does not seem to favor what is right in the given situation. It is set rigidly on a notion that a woman ceases to be a member of the parental family after her marriage.

As of 2021, statistics show that there are more nuclear families in India along with a good percentage of single-mothered families than extended families. This means the role of a woman is not limited to being under the shadows of her father or a husband. She is an equal contributor ( if not more ) and hence deserves the same treatment as a male heir.

Secondly, from a mother's perspective, why should she be expected to treat or be treated differently by her son or daughter ?

If Narayani's mother could inherit the property ( self-acquired or whatsoever ) of her son, why not Narayani's ?

This is not just a matter of equality but also against the dignity of a woman.

Thirdly, the law is not fair to men either. It allows a woman to take a share of the property but prevents her from adding to the same pool.

In other words, the law expects a woman to be the coparcener of the family and take a share of the property of her parents but does not impose to perform duties towards her parents like it imposes a son.

True equality comes not just from placing the women merely on the receiving end as in case of the 2005 Amendment but by erasing the gender lines. Man, Woman, Transgender or any other identity one choses to go by, why should it dictate how one receives or devolves property ? ( sans special situations like section 6 of The Dowry Prohibition Act, 1961 ).

This should be the progression for our property laws.

Views are personal.