Hindu Women’s Inheritance Rights – Influence Of The British In The Indian Subcontinent

Women and their rights have always been problematic issues almost everywhere in the world. The main cause of the same is the fact that there exists an obvious divide between the genders. This we can say chronologically that it started during the primitive times. During those times what was important was muscle power, for one needed it for besting the prey for sustenance. Obviously, women did not have brute physical power as compared to that of a man. This led to women participating in other equally important activities such as cooking and maintaining the household. The critical point to note here is that although there was an obvious difference that existed, it did not pave way to creation of any complex between the genders. Both the sexes recognised their roles in the society and went about performing their activities peacefully.

It was in the ancient period that there was any position attached to the roles of the genders. This is what contributed to the downfall of the women, for not only was their identity and position compromised in the society, it even went to the extent of affecting their rights. This is the major reason as to why such movements exist, that seek to put the women in the position that they are supposed to be in.

In the Indian context and regarding Hindus, the Britishers had legislated on certain matters with the ultimate objective of achieving equality between the genders. The British came up with the Widow Remarriage Act, 1856. This act had a twofold use – one to seemingly promote equality between the genders and two, to boost the economy with the money of the rich widows. This act was not helpful because only a few widows remarried, whose contribution to the economy was also negligible. Moreover, it granted the widow only partial rights over her deceased husband’s property. There was also the fact that she got the right to the property only in cases where the couple had no sons. Then, in 1868, came the Proclamation of the Queen that sought for reforms in the legal sphere in India. This caused the Britishers to take an active role in enacting legislations, which also extended to the sphere of personal law.

ADVERTISEMENT

Then in 1925, came the secular act for succession – Indian Succession Act. This act had special provisions for every sect (dependant on religion) of the population. This act was actually quite ahead of its time, for it did not discriminate between the genders. But it did not have much to with Hindus at all which rendered the equality that it so established useless for Hindus.

In 1928 came the Hindu Law of Inheritance that sought to bring changes to the pattern of inheritance as per Hinduism. This act had certain provisions by virtue of which the son’s daughter, daughter’s daughter and the sister of the deceased could inherit the property of the deceased by making them class I heirs. This position was established in the Madras and Bombay High Courts, but not in the rest of the country. This act was amended in 1929. The amendment bill sought to position the female heirs between the paternal grandfather and the uncles. This bill was deeply opposed because the changes that the act brought about were of a huge magnitude.

At this stage it is worth mentioning that although the next act came in 1937 , the women were already expressing their wishes that they wanted laws that supported their inheritance, which lead to the 1937 Women’s Right to Property Act, being welcomed well. It conferred rights on three widows to inherit property – widow of the deceased, widow of the pre-deceased son and the widow of the pre-deceased son’s son along with the other existing heirs. But the widows were only given a limited interest in the property. Upon the death of these afore-mentioned widows, the property would go back to the reversioners (the people to whom the property would have gone to, if not for the act). Also, this act was applicable only when the deceased died intestate, which was not the case most of the time. The widow was allowed to alienate the property when she was alive with the consent of the reversioners. This alienation was also for special purposes only such as benefit of estate, indispensable duty and fulfilment of legal duty. The famous case of Renka and Anr. And Bhola Nath Vs. Nannhu Mal and Ors. in 1915, established that the alienation cannot be for wasteful purposes. The share of the widow of the deceased was equivalent to that of her son, which meant that the son should not be alive for this act to be applicable to any of the afore-mentioned widows as well. While the act had good intentions, it clearly did not do much to improve the condition of widows or women.

ADVERTISEMENT

Post-Independence in 1947, there was a flurry of activity regarding codification of Hindu Laws, especially after the enactment of the Constitution in 1950. This involved the creation of the Hindu Marriage Act in 1955 and in 1956, the Hindu Succession Act, Hindu Adoption and Maintenance Act as well as the Hindu Minority and Guardianship Act by the Parliament, more so because the matters of family law were all consolidated to be matters of importance of both the Centre as well as the States. This meant that the same found its place in the Concurrent List . The Hindu Succession Act is the act that deals with inheritance rights, as the name suggests. This act concerns itself with the property that is susceptible to intestate division, while the testamentary succession is taken care of by the Indian Succession Act, 1925. It is noteworthy to mention that Hinduism allows for exclusion of people through wills and so does the Indian Succession Act. The Hindu Succession Act, 1956 initially was not particularly helpful to improve the situation of women. One of the reasons how this could be substantiated is the fact that daughters could not be coparceners. A coparcenary is considered to be constituted by the male members of a family for four generations, that is, a man, his sons, his grandsons, and his great grandsons constitute a coparcenary. Initially, these generations were considered because it was believed that these were the four generations who were capable of performing the religious ceremonies for the deceased. The wives of these men (who constituted the coparcenary) were never coparceners – even now. Only if the wife becomes a widow, that too because of the Women’s Right to Property Act, 1937 is she allowed to inherit the property.

2005 saw the Supreme Court asserting that daughters are of same status as sons, and hence are eligible to be coparceners. All the advantages as well as the disadvantages that come with being a coparcener are what the daughters inherit as well. This amendment meant that grandsons and granddaughters were treated equally, as well as great grandsons and great granddaughters being treated equally. But such a change was visible in 1986, 1989, 1990 and 1994 by Andhra Pradesh , Tamil Nadu , Karnataka and Maharashtra respectively. In a landmark judgement, the Delhi Court allowed for women to become Karta in 2015 , prior to which the thought itself was considered to be prohibited.

Sec 14 of the Hindu Succession (Amendment) Act, 2005 declared that the property held by women were all of absolute nature, that is, she was the owner of the property and she could do whatever she chose to do with the property as she chose. Here, property refers to both movable as well as immovable property and the property was irrespective of from who she got the property from. Whereas, the previous position was that she would have limited ownership of the property, which meant that she could use the property during her lifetime and she was not given the power of disposal of the property as well. There are two conditions that ought to be fulfilled for the application of Sec 14 – one, the ownership of the property in question must vest in her and two, when the act did come to force, the widow ought to have had possession of the property.

ADVERTISEMENT

The Hindu Succession Act has also differentiated between the property of the deceased, that is, the inheritance pattern changes when a male dies as well when a female dies. This difference is unique to Hindu law alone. Sec 15 is about the devolution of the property of a woman who dies intestate. It specifies the order by which the heirs inherit the property, that is – first, husband and children; second, heirs of the husband; third, mother and father of the deceased; fourth, heirs of the father and finally fifth, heirs of the mother . This is obviously dissimilar to how the property of an intestate male is split. The constitutionality of the same was challenged in the case of Sonabhai Yeshwant Jadhav Vs. BalaGovinda Yadav , but the court upheld the same. The problem here is to with the thought process of the legislators, who deemed that, for a woman, her marital status is particularly important as compared to that of a man, which should not be the case . This has been observed by the Law Commission Report as well . The fairness of this provision was questioned in the case of Omprakash Vs. RadhaChandran , to no avail. There is a clear violation of Article 14 here, in terms of how the sections are drafted, and the implications are also disastrous.

While the Parliament has shown the Hindu Succession Act as being progressive, by allowing daughters to be coparceners in Sec 6, it has also shown the same to be regressive as well, for it enforces the concept of women being second to men in Sec 15 . To cure the act of its regressive mentality, the Law Commission Report has proposed changes, which are highly relevant in the current context as well. The Parliament must enforce these changes to enforce equality as well as empower women.

By

ADVERTISEMENT

Aparna Venkataraman

Tamil Nadu National Law University

Law Corner

Leave a Comment