Report No. 207
5. The Case for Change
5.1 The Hindu Succession Act was enacted in 1956 when in the structure of a Hindu society, women hardly went out to work.
5.2 There has been a vast change in the social scene in the past few years and women have taken a stride in all spheres. The consequence is that women are owing property earned by their own skill. These situations were not foreseen by the Legislators.
5.3 If that is so, what is the impact of these socio-economic changes? Do they warrant any change in the law of succession in relation to the property of a female Hindu dying intestate? What is the fall out of gradual disintegration of joint Hindu family and emergence of nuclear family as a unit in society over the years in the context of law of succession governing the issue at hand? One of the fundamental tenets underlying the law of succession has been the proximity of relation in which a successor stands to the person who originally held the property that may be the subject matter of inheritance in a given case.
The fact that women have been given right to inherit from her parental side, also assumes relevance in the present context. These developments and changes lead to competing arguments and approaches that may be taken in redefining the law of succession in case of a female Hindu dying intestate. Thus, three alternative options emerge for consideration, namely:
1. Self-acquired property of a female Hindu dying intestate should devolve first upon her heirs from the natal family.
2. Self-acquired property of a female Hindu dying intestate should devolve equally upon the heirs of her husband and the heirs from her natal family.
3. Self-acquired property of a female Hindu dying intestate should devolve first upon the heirs of her husband.
5.4 The third option may be taken first as this can be disposed of summarily. The option essentially means continuation of status-quo. We have already seen earlier that socio-economic changes warrant corresponding changes in the law on the subject as well.
5.5 We may now take up the first option. The protagonists of this approach contend that the general order of succession reflects gender bias. It will be relevant to refer to the following passage in this regard:
"Succession for male and female intestates: Under the Hindu Succession Act the provisions for two entirely different schemes of succession on grounds of the sex of the intestate create a distinction between the male and female intestates. There is a further divergence in case of female intestates linked with the source of the property that is the subject matter of inheritance. Thus, where a woman inherits property from her parents, and dies issueless, this property on her death does not go to her own heirs but goes to the heirs of her father.
Similarly, where she inherits the property from her husband or from her father-in-law, on her death this property goes to her husband's heirs from whom or whose father she had inherited the property. The subdivision of the schemes of succession in case of female intestate is outdated and irrational. The heirs are not described as brother, sister, her brother-in-law etc., but as heirs of her parents and heirs of her husband. She is perceived as having no 20identity of her own.
The legislature while framing this scheme was very much influenced by the whole Mitakshara law, its concept of stridhana and inheritance by a female in a double capacity. This reversion of the once-inherited-property back to her father's or her husband's heirs shows a desperateness on the part of the legislature to treat her only as a temporary occupier." (See Pradhan Saxena - Succession Laws & Gender Justice in Redefining Family Law in India - Edited by Archana Parasar, Amit Dhanda, Routledge, New Delhi, 2008).
5.6 The supporters of this approach contend that the joint family system in our country has slowly been eroded and an increasing number of nuclear and semi-nuclear families have replaced the traditional Mitakshara Hindu joint family system. Women are also becoming more economically independent. With the growth of the nuclear family a married woman dependency on her natal family and continued closeness to it is much greater today even if it was not so earlier. Most married women would prefer that their parents should be the more preferred heirs to inherit her property if her children etc. and husband are not alive.
She would also prefer that her sister and brother have a better right to inherit her property than her brother-in-law and sister-in-law. Accordingly, it is urged that Section 15(1) should be modified to ensure that the general order of succession does not place a woman's husband's heirs above those who belong to her natal family like her father and mother and thereafter her brother and sister. It is contended that when a man dies intestate, his wife's relatives do not even figure in the order of succession despite the manner in which he may have acquired the property.
In view of this, parity is sought in the case of female by applying the same rules as applicable to male's property. Accordingly, it is suggested that it would be better to amend Section 15(1) to specify the general rules of devolution, which will apply not only to self-acquired property by a women but also to other property acquired through her family, gifts, etc. The only proviso which would then be needed would be to property that a woman acquires from her husband's family.
5.7 The second option in this regards is that the whereas property of a female Hindu dying intestate devolves upon the heirs depending up-on the source from which the said property was acquired by her, the self-acquired property of such female be simultaneously inherited by her heirs both from the husband family as well as the natal family in equal share. The fact remains that in spite of her closeness to, and dependence on, her natal family, her relations with her husband's family are not separated and uprooted in entirety.
She continues to be a member of her husband's family, getting support from it in all walks of life. One cannot afford to ignore the ground realities in this regard. The social ethos and the mores of our patriarchal system demand that the existing system should not be totally reversed as claimed by the protagonists of the first option. Lest, there may be social and family tensions which may not be in the overall interest of the family as a whole and, as such, ought to be avoided. In any case, it is open to the female Hindu to bequeath her property the way she likes by executing a will.