The property of a Hindu female under the Hindu Succession Act, 1956 has been divided into two

categories:

1.)Property inherited by a female from her father or mother,

2.)Property inherited from her husband or father-in-law

The properties which are not governed by the two specific kinds. The first category is a clear
example of the obsolete thinking prevalent in the Hindu law wherein woman becomes one with
the husband after marriage. This kind of differentiation depending upon the source of property
and gender is not seen in any other religion across the world. The general rule for all kinds of
property is that it will pass on to the children (or if children pre-deceased the female, to the
predeceased children’s children) and the husband.

However, in case where there is no one in existence from the predecessors at the time when
succession opens, the first kind of property will be inherited by the heirs of her father and the
second by the heirs of her husband. Perhaps, the intention of the legislature was that the property
should revert to the source from which it was received. The subject of enquiry herein, is the
succession procedure of the third kind of property, which includes the self acquired property or
property received in any other manner or from any other source, provided she has absolute rights
in that property.

The act provides for a specific order, in which this property divests:

a) Firstly, upon the sons and daughters (including the children of any predeceased 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;

e) Lastly, upon the heirs of the mother.”The above order is highly discriminatory and presents a
picture of the archaic thinking of the Indian legislature in so far as the Hindu personal laws are
concerned.
This will be elucidated in Part III of the essay. Prior to this, Part II will explain the same with the
help of the case of Om Prakash v. Radha Charan (Om‟s case) Part IV will present the recent
developments in this regard and Part V will conclude the article. Failure of the Hindu Succession
Act The case of Om Prakash v. Radha Charan is an appropriate example of how HSA has failed
to prove its robustness. The case pertains to Narayani, after whose death, there was a dispute
regarding the succession of her property. Ramkishori, Narayani‟s mother, filed an application for
grant of succession certificate under Section 372 of the Indian Succession Act, 1925. The
respondents, who were the brothers of Narayani‟s husband, also filed a similar application to get
the succession of Narayani‟s self acquired properties.

To understand the intricacy of the situation, it is important to know the background of the way
in which the properties was acquired. Narayani‟s husband died of snakebite within a short period
after their marriage. She was then thrown out of her matrimonial place by her in-laws who were
the respondents here. She was never enquired of for the 42 years when she stayed in her parents‟
place after her husband‟s death. She was educated by her parents and thereafter she gained a
well paid job. Therefore, she left a huge amount of property including bank accounts, provident
funds, land etc. before she died intestate. The result of this lawsuit however is shocking to the
conscience.

The judges said that sentiments and sympathy cannot be a guiding principle to determine the
interpretation of law and it should not be interpreted in a manner that was not envisaged by the
legislature. The court stated that since the HSA specifically mentioned that the self acquired
properties will pass on to the husband‟s heirs in the absence of the husband and any issues,
which was the case with Narayani also, the court will have to pass the judgment in favor of the
respondents. This precedent is detrimental to the future cases, owing to the interpretation given
to the HSA by the very institution which is held in high regard for the preservation of justice.
Although it is understandable that the court could not have gone beyond the intention of the
legislature, however, the court did not completely endorse the Parliament‟s intention either.

The argument of the counsel for Narayani‟s mother holds weight in this regard. It was argued
that since the intent of the Parliament while introducing the said section was to send the property
back to the source and not to a stranger, it is logical that since the property was earned via the
money spent by Narayani‟s parents, the money so earned should be returned to her parents. This
however was not accepted by the court. The judgment can be criticized on another ground, which
is the ignorance of the principles of equity, justice, good conscience and public policy. It should
be noticed that the succession laws are not only about the ones who are entitled to the property,
but also about the ones who should be disentitled. Mulla observes that Section 15(2) is based on
the ground that property should not pass to the individual whom justice would require it should
not pass. Here, the court granted the property to the very people who behaved cruelly towards
her and did not maintain the relationship when she needed it the most. The respondents
recognized the relationship between themselves and the plaintiff only when there was a scope of
benefitting from this relationship.

They deserved punishment and not reward. The court should have denied them the locus standi
of asking the property of a person who they had disregarded for more than four decades. One
could draw support for this argument from Section 25 of the Hindu Succession Act, where a
murderer is disqualified from inheriting the property of the person he/she has murdered. It is
based on the belief that the deceased person will never want the person who murdered him/her to
inherit property. However, the impugned case is not the only one where neither the intention of
the legislature, nor that of the intestate was respected.

The law as laid down might have some inherent flaws itself. The subsequent section analyses
the same. Hindu law is one of those very few personal laws in India, which has changed with the
change in time. It was a subject of criticism before the Hindu Code Bill was passed, because of
the glaring inequalities that existed in the law. However the code was not able to make up for the
inequalities and had to be edited with a stride of amendments. However, the various amendments
made in the Hindu Succession Act as an attempt to make it more and more progressive have not
been able to bridge the gap.

Disparities remain, especially the ones which stem from the patriarchal nature of the Hindu
society. These are so subtle, that not only are the women discriminated against, but also their
close heirs are, as has been seen above. This is a failure of the mechanism in Hindu Succession
Act, which is believed to treat both genders on an equal scale. The Act has not been able to
achieve the basic characteristics of a good succession law. Any rational code of intestate
succession must be based on the following principles:
a) There must be one rule of inheritance whether the intestate is male or female;

b) The rule must be the same whatever be the nature of acquisition of property by the intestate;

c) There must be gender equality;

d) The husband, and the wife must have mutual and equal rights; and

e) The father and the mother must be placed in the same position. In contrast to the Parsi,
Muslim or Christian law, where the blood relatives of the women inherit even in the presence of
her husband or her husband‟s relatives, the blood relations of a Hindu woman are given an
inferior position in contrast to her husband‟s heirs. This leads to a situation where her own
relatives will not be able to inherit in cases where even if there is a remote heir of the husband.
The purpose of succession law, i.e. “in the absence of any express … instructions of the deceased
such a distribution should be effected of her property that she in normal course as a reasonable
person would make of her own property” is not then met by the law as stated. Some scholars try
to trace its origin to the fact that women leave the natal place and with that all the natal relations
to her husband‟s place.

However, this explanation is hard to accept, when this practice of leaving the natal home by the
women is practiced almost all over the world, even in the most progressive religions; yet, there
the laws are not as discriminatory as that of Hindus. The Hindu law is at a juncture, where
women after the entire struggle to inherit property are now unable to divest it the way they would
have wanted had they been alive.

The right to make a will does not come to rescue, since Indian women‟s education has not yet
seen the light of the dawn. The ignorance of law by the Indian society further discourages the
writing of a will. A justification for Section 15(2) of HSA can still be found in the fact that the
Joint Parliamentary Committee while bringing in the clause wanted the property to be transferred
to the source. However, it is difficult to draw an analogy for the same in Section 15(1), since no
source can be indicated for a woman‟s self acquired property.

In such a situation, it is an established practice and appeals to logic, that the blood relations will
be preferred by a person over the distant relatives of the spouse (even when we may consider
inheritance by the husband and children as legitimate). The present law is also an epitome of
gender inequality. The property of a male intestate devolves on blood relations and relations by
marriage and do not extend to the relationship of the spouse. However in the case of females,
there is judicial imposition of the husband‟s relatives over her blood relations. The entire group
of husband‟s heirs inherits from her, whereas she does not inherit from them. The marriage of a
man does not make a difference on the way his property gets devolved, but the marriage of a
woman changes the pattern of inheritance for her property. This is a result of the thinking that a
woman has no family of her own, it is either the husband‟s or the father‟s that she lives in. A
woman is not treated as an independent individual capable of transferring her property to her
blood relatives, but an extension of her husband. It strips her off her true identity, under the
existing identity crisis under the Hindu Succession Act.

This position that the wife merges with the husband on marrying cannot be justified in the 21st
century, even as a way to preserve the Hindu culture; where woman have become economically
independent and do not depend on their husbands anymore. The law is also a suggestion of the
discarded view that the woman has a limited stake in the property. This view which was sought
to be discarded by Section 14(1) of the HSA, still haunts the lives of the Hindu women, where
the property held by the women should return to the source she received it from. There has not
been an effort to rationalize the source of the self acquired property of the Hindu women. In the
case of old Hindu families, there was a trend that women were generally the home makers and
only men earned; however, the law has failed to keep abreast with the recent changes in the
concept of a Hindu family. In contemporary India, the joint family system has eroded and there
has been a shift towards the nuclear families in the past few years.

Therefore, the closeness to and dependence on the natal family is more than the closeness to the
matrimonial home. In such a situation, there are times, when the husband and wife live by
themselves and do not meet the relatives throughout their married life. Therefore, it is illogical
and against the principles of succession law that the relatives of the husband inherit the property.
As in the case illustrated above, even if the deceased woman is ill treated by the husband‟s
mother and father, they inherit the property instead of her own parents.

This is so when most women will prefer that their parents inherit their property over their in-laws
in the absence of husband and issues.The preference of a son in the Hindu society can also be
traced to such kinds of laws in India. It should be seen that under the present law, it is only
through males that the blood relatives can inherit and not through females.Parents of a single girl
child thus, have no security of inheritance unless the girl child makes a will. On the other hand,
the parents of a male child are included in the succession scheme where mother is included in the
list I heirs and the father in the II. A mother shares equally with the children and the widow when
a son predeceases her. In such a situation, the parents of a male child are better off than that of a
female resulting in the bias. These failures in the present system demand for a reform in the law.
The case discussed in the next section is a welcome step in this regard.

There has not been an effort to rationalize the source of the self acquired property of the Hindu
women. In the case of old Hindu families, there was a trend that women were generally the home
makers and only men earned; however, the law has failed to keep abreast with the recent changes
in the concept of a Hindu family. In contemporary India, the joint family system has eroded and
there has been a shift towards the nuclear families in the past few years.

Therefore, the closeness to and dependence on the natal family is more than the closeness to the
matrimonial home. In such a situation, there are times, when the husband and wife live by
themselves and do not meet the relatives throughout their married life. Therefore, it is illogical
and against the principles of succession law that the relatives of the husband inherit the property.
As in the case illustrated above, even if the deceased woman is ill treated by the husband‟s
mother and father, they inherit the property instead of her own parents. This is so when most
women will prefer that their parents inherit their property over their in-laws in the absence of
husband and issues.

The preference of a son in the Hindu society can also be traced to such kinds of laws in India. It
should be seen that under the present law, it is only through males that the blood relatives can
inherit and not through females. Parents of a single girl child thus, have no security of
inheritance unless the girl child makes a will. On the other hand, the parents of a male child are
included in the succession scheme where mother is included in the list I heirs and the father in
the II. A mother shares equally with the children and the widow when a son predeceases her. In
such a situation, the parents of a male child are better off than that of a female‟s resulting in the
bias. These failures in the present system demand for a reform in the law. The case discussed in
the next section is a welcome step in this regard.
Sonubai Yeshwant Jadhav v. Bala Govinda Yadav. It was held there that “the object of the
legislation was to retain property with the joint family upon marriage which brought males and
females together forming one institution. It, therefore, accepted that in recognition of that
position when the wife‟s succession opened, the class known as heirs of the husband were
permitted to succeed as a result of initial unity in marriage upon which the female merged in the
family of her husband”. However the court in the present case, rejected this argument, and added
that the discrimination in the section is only based on gender and not on family ties. The court
analyzed the succession scheme of the male intestates under the HSA to check the viability of the
argument. It noticed that keeping the property within the family was not being envisaged;
otherwise daughters, sister‟s sons and sister‟s daughters would not inherit the property of a male
Hindu.

It was held that if the Parliament envisaged keeping the property within the family, it would not
have wanted the sisters and the daughters to inherit from the male‟s property, since they are
married off to homes of other people. It was thus concluded that the only basis of this
classification was gender. The section is extremely discriminatory in as much as the female‟s
property even if self acquired is not inherited by her core heirs. Further a Hindu female who
would expect to inherit from the estate of another receive(s) setback from distant relatives of
husband of deceased not even known to her or contemplated by her to be her competitors.
Therefore the section is ultra vires the scheme of the Constitution and hence invalid.

The aspect that the judiciary should not interfere in personal laws was also brought up. The court
considered it a blemish to have discriminatory succession laws even when the Hindu society was
thriving towards gender equality. It was said that a legislation, which is discriminative only on
the basis of gender, can be questioned, as was done when Section 10 and Section 34 of the Indian
Divorce Act, 1869 were amended. Moreover, there have been progressive changes in the Hindu
law itself, e.g. the amendment in Section 6 giving women the right to coparcenary and deletion
of Section 23 which deprived women of sharing the dwelling house by the 2005 amendment.

It was recognized that although there can be different laws for different religions, there cannot
be different laws for different sexes and thus the judiciary has a right to interfere in the latter
case. Although a magnum opus of the justice is done by the judiciary, this judgment passed by a
single bench of the High Court needs to be affirmed by the division bench. Once it is so done, it
will be a watershed judgment to bring in equality in the Hindu law pertaining to succession.
Once declared unconstitutional, the government can use the recommendations of the 207th Law
Commission Report to bring reforms in the law. The report suggests two options, one, of
bringing the intestate succession laws in parity with the males, and the other, of dividing the
property equally among the matrimonial and natal heirs taking into account the ground reality
that the women ultimately leave their natal place and work under the constant support of her in-
laws. Either of these options will be progressive changes in the Hindu law.