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Report No. 204

Proposal to Amend the Hindu Succession Act, 1956 as amended by Act 39 of 2005

1. Background

Inspite of the constitutional mandate for gender equality, gender bias and discrimination continue to be prevalent in the Indian society in one form or another. Though there are distinct signs of gradual reduction of inequalities on the basis of sex, yet these could not be eliminated altogether. There is no denying of the fact that the fight against gender inequalities has to be pursued with sustained rigours on a long term basis until the ultimate goal of gender equality is attained.

Towards this end, the Commission suo motu took the study of reforms in respect of property rights of women under the Hindu Law in its 174th Report as discrimination against women has been glaringly discernible in this area. In order to give effect to the recommendations made by the Commission in the aforesaid 174th Report, the Hindu Succession Act, 1956 (30 of 1956) was amended by the Hindu Succession (Amendment) Act, 2005 (39 of 2005). The statement of Objects and Reasons of the Amendment Act 39 of 2005 read as follows:

"The Hindu Succession Act, 1956 has amended and codified the law relating to intestate succession among Hindus. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relation to women's property. However, it does not interfere with the special rights of those who are members of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases.

The Act lays down a uniform and comprehensive system of inheritance and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri laws. The Act applies to every person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Pararthana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. In the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925.

2. Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognizes the rule of devotion by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counter-parts do.

The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution, having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.

3. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coprarcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.

4. The above proposals are based on the recommendations of the Law Commission of India as contained in its 174th Report on "Property Rights of Women: Proposed Reform under the Hindu Law".

5. The Bill seeks to achieve the above objects."

Proposal to amend the Hindu Succession Act, 1956 as amended by Act 39 of 2005 Back

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