The recent notice served to the union government by the Punjab and Haryana High Court in a petition challenging the constitutional validity of Section 15 of the Hindu Succession Act brings the focus back on gender 'injustice' with regards to the different rules for devolution of property regarding men and women, writes VIVEK GUPTA.
——-
CHANDIGARH: Within three months of her marriage in 1955, Narayani Devi was a widow who returned to her parents' home after her marital family had banished her.
Before she died childless and intestate (without will) in 1996, she amassed substantial property.
The question of the rightful heir to Narayani's properties was considered by the Supreme Court of India in its judgment in the case of Omprakash & Ors. vs. Radhacharan & Ors. (2009).
In an unfortunate turn of events, her late husband's distant relatives inherited her self-acquired property; the apex Court relied on Section 15 of the Hindu Succession Act, 1956 (HSA) to bequeath Narayani Devi's property to her late husband's kin.
Her mother, who supported her throughout, received nothing.
A research paper published by the National Institute of Public Finance and Policy in May 2020 observes that this injustice would not have occurred if the gender roles were reversed — the property would have remained within her family if Narayani Devi were a man. "The Hindu law of succession is inherently discriminatory against women in matters of devolution of property," it stated.
"In fact, the property would have remained within her family even if she were a practicing Christian, Parsi or Jew under the Indian Succession Act, 1925 (ISA), or a resident in the state of Goa under the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 (GSSNIP). This injustice occurred solely due to Narayani Devi's identity as a married Hindu woman."
More recently, a Gurgaon-based woman, whose daughter died earlier this year in similar conditions – intestate and childless – filed a petition in the Punjab and Haryana High Court to prevent her daughter's self-acquired property from going to her mother-in-law because of the discriminatory provisions of section 15 of the HSA.
The Punjab and Haryana High Court, by issuing a notice of motion to the Union Government, has made clear its intention to examine whether Section 15 is unconstitutional.
As per the petition, Devina Bhardwaj and Chetan Bhardwaj solemnised their marriage in 2007. Initially they lived with her husband's family. Within a year, the couple started living independently.
In 2014, the couple jointly purchased a home in Gurgaon. A bulk of the payment was made by Devina as she was earning more than Chetan at the time.
In April, 2021 Devina and Chetan contracted Covid-19, and were admitted into the hospital. Eventually, Chetan passed away. He died intestate, leaving Devina and his parents as class-I heirs. As a result, his property devolved unto Devina and his parents in equal parts.
However, in May 2021, Devina too passed away due to Covid-19 complications; like Chetan, she died intestate
Devina's mother stated in her petition that she learnt that Devina's mother-in-law had contacted the concerned banks to access Devina and Chetan's assets worth around Rs. 2.7 crore.
In June 2021, she learnt that a report had also been issued by the Tehsildar and Patwari of Palam Vihar declaring Devina's mother-in-law as sole legal heir to Devina and Chetan's assets.
As a result, Devina's mother filed a petition not only claiming her right to Devina's share of assets, but also challenging the constitutional validity of section 15 of the HSA.
Explaining what makes section 15 of HSA discriminatory, Devendra Damle, a Research Fellow at National Institute of Public Finance and Policy told The Leaflet that the section makes it clear that in devolution of self-acquired property, it gives priority to the husband's family over the woman's parents and siblings.
"Also, for any property she inherits from any relatives who are not her parents, the husband's family has a stronger claim than her siblings. For example, if a woman has a brother and a sister, and she inherits land from her deceased brother, upon her own death, her sister will not inherit that property, her husband's family will," he explained.
According to Damle, this is not the case for a man. Under Section 8 of the HSA, any property that he inherits will always go to his family. Similarly, relatives connected to the deceased through male relatives have a stronger claim than those connected through female relatives. So for example, for a deceased male, his father's siblings (his paternal aunt and uncle) have a stronger claim to his property than his mother's siblings (his maternal aunt and uncle).
He said women's natal families have suffered a great deal in the past because of the discriminatory nature of the provision.
He also mentioned that the possible origins of this provision, and other similar sections of the Act lay in the archaic assumption that women cannot acquire and own property through their own efforts, and only stand to inherit it through deceased relatives.
"Additionally, relations through male relatives are given priority over relations through female relatives. Further, a married woman was considered to "belong" to her marital household rather than her natal household. Until the 2005 amendment to the Act, married women did not get coparcenary rights over their ancestral property either," he added.
Commenting about how this historic 'mistake' can be undone, Damle noted that sections 8 and 15 (and related provisions, and schedules) of the HSA can be amended to treat men and women equally in matters of devolution. A possible model is the ISA that applies the provisions for intestate succession to all Indian citizens who are not Hindu, Buddhist, Jain, Sikh, or Muslim.
"While the ISA is older than the HSA, the scheme of devolution prescribed in it is far more progressive in terms of gender-equality," he explained.
Anurag Singh Thakur, who currently serves as the Minister of Information and Broadcasting in Prime Minister Narendra Modi's cabinet, introduced a private member's bill, The Hindu Succession (Amendment) Bill, in March 2013.
It noted that women have taken giant strides in all spheres of life, resulting in them acquiring property through their own skill and then proposed that parental heirs must be given preference with respect to inheritance of self-acquired property in the event a woman dies intestate and is not survived by her husband or children.
However, the bill was not taken up for discussion in either House. 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.
In Mamta Dinesh Vakil vs. Bansi S. Wadhwa (2012), a single judge-bench of the Bombay High Court held that section 15 of the HSA was unreasonable as discriminatory and, therefore, unconstitutional and ultra vires as being violative of Article 15 of the Constitution of India.
The single bench referred the matter to a larger bench to decide the constitutional validity of HSA, which did not end up being constituted.
Meanwhile, a division bench of the Punjab and Haryana High Court comprising Chief Justice Ravi Shanker Jha and Justice Arun Palli will now examine the matter in December.
(Vivek Gupta is an independent journalist based in Chandigarh. The views expressed are personal.)