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1956, 24 Supremo Amicus [686] (2021).

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 SUPREMO AMICUS

VOLUME 24 ISSN 2456-9704

CRITICAL ANALYSIS OF SECTION 15 of section 15 of the Hindu Succession Act,

OF HINDU SUCCESSION ACT, 1956 1956, which is a personal law applicable to
the Hindus of India. We have attempted to
By Aziz Sayeeda and Iman Khan explain the defaults of the section 15 of the
From Jamia Millia Islamia, New Delhi act. And the solutions to improve the stance
of a Hindu woman in the society and give
them equal rights related to Succession
In India, individuals who follow different similar to men.
religions have their own personal laws
related to marriage, separation, guardianship,
Who is known as Hindu?
inheritance, adoption and are governed by No certain legal definition of a Hindu is there
these laws. Related to the succession, the but section 2(1)(a) of Hindu Succession Act
Hindus are governed by the Hindu 1956, says that "any person who is a Hindu
Succession Act which came in 1956. The by religion in any form and any person who
position of Hindu woman changes from time is Buddhist, Jain or Sikh by religion and any
to time and improves their position in the person who is not a Muslim, Christian, Parsi
society as when we look into the history the or Jew by religion is considered as a Hindu."
Hindu woman's property rights are limited A person who was born in Hinduism and
and their position related to the property have converted to another religion and then
always been poor. But after the Hindu reconverts to Hinduism will be treated as
woman's Right to Property's act, 1937, the Hindu. 2
position of a woman increases a little bit but
they are not considered as equal to men. But
Succession
the position escalated in 1937 when the
Succession means an action or process of
Hindu Succession Act, 1937 came and the inheriting a title, property or right. It is of two
rule of survivorship was abolished. Later, the categories,
Hindu Succession Act, 1956 came and a lot
of changes occurred that we can observe in 1. Intestate Succession: When an individual
relation to the property of a Hindu woman. dies without leaving a will, then court
On 9h September 2005, the amendment act manages the deceased estate through the
2005 tried to bring women right related to intestate succession statute. The property
property equal to men. But still we can see belonging to the deceased will be transferred
that in various sections women are not onto his heirs.
regarded equal to men. But the enormous 2. Testamentary Succession: When a person
flaw in the Hindu Succession Act 1956, is in dies leaving behind a will, this grants the
section 15, where her husband's heir give right of inheritance to the person mentioned
preference over her own natal family. And for by the testator. 3
self- acquired property the law is silent. We
are here to analyse the constitutional validity

1 The Hindu Marriage Act, 1955 (Act No. XXV of 3 Prakriti Agarwal, "Is the Hindu Succession Act,
1955) 1956, constitutional?", available at
2 Hinduism, available at www.history.com (last https://www.youthkiawaaz.com (last visited on 1 5 th
visited on 15 th October 2020) October 2020).

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VOLUME 24 ISSN 2456-9704

Personal Laws In the earlier times, Hindus were governed by

Personal laws are the laws which are their various customs and Shastric laws.
governed by the religious beliefs and are Among the Hindus the inheritance practices
applicable to the citizens following a are governed by the Mitakshara and
particular religion. Nar Singh Pratap Deo v. Dayabhaga, both schools have been found in
State of Orissa4 , in this case the Supreme medieval Hindu law and the approach
Court held that personal laws should come adopted by both is different.
under the definition of law. Personal laws,
include, codified and uncodified laws both. Under Mitakshara law, the coparceners are
These laws will continue to be in effect as only son, grandson and great grandson,
long as they are struck as unconstitutional daughters are not included. Only sons acquire
and treated as void under Article 13 of Indian the right and interest in the property of the
Constitution. If there is any law, which is family. They did not recognise females as
unconstitutional or contravention of part III coparceners. Females takes only limited
of the Indian Constitution then that law will estate whereas male take absolute interest in
be struck down.5 In the case of, Masilamani the estates. She could also not make a gift of
Mudaliar v. Idol of Sri Swaminatha Swamy the property nor could she sell it unless there
Thirukoil6 , the court held that the personal was some legal necessity. On her death, the
laws which are against the Indian property would pass not to her heirs but to the
Constitution should be held invalid to the next heirs of her husband.
extent of that contravention.
Further, according to Manu, 'a wife, minor
History of Women Property Rights in son and a slave are declared to have no
Hindu Law. property and if they happened to acquire it, it
When we turn the pages of our history we can would belong to male under whom they are
find the position of women in the society as in protection'.
in Manusmiriti it has been stated "pitho
rakshathi kaumare, bhartho rakshathi Before the Hindu Succession Act, 1956, the
youvane, puthro rakshati vardhakve, na sthri property of the Hindu woman was divided
swathanthrivamarhathi", this shloka of into two:
manusmiriti explains the importance of
protecting women in different stages as she 1. Stridhan
being considered mentally and physically 2. Woman's estate
inferior to men but it is being misinterpreted
even in current times and doing all sorts of Stridhan means the property of the woman
exploitations towards her including in the but the woman being denied the use of her
inheritance and succession of property property as an absolute owner. Woman's
rights.7 estate is further divided into two categories:

4 1964 AIR 1793 Tanya Sree, "Property Rights of Women in Vedic

s Ibid. vis-a vis Modern Times", available at
6 1996 AIR 1697 https://www.indusscroolls.com (last visited on 1 7 th
October 2020).

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a) Property obtained by inheritance which abolished the rule of survivorship.1 0 The

means the property which is inherited by a deceased coparcener's widow of the
woman from another woman also considered Mitakshara undivided family will now have
as stridhan. the same interest like her husband had. The
b) Shares which are obtained on partition means position of a Hindu female was initiated from
a woman is entitled to obtain her share in the Hindu woman's right to property act. It was
property but she is considered as a limited further improved through the Hindu
owner.8 Succession Act. 1956, which bifurcated the
property into four categories,
A lot of improvements have made in the laws
such as the Hindu woman's right to property 1. Coparcenary property
Act, 1937, the Hindu Succession 2. Dwelling house
Act,1956(Amendment Act 2005) which has 3. Property of a Hindu male
been known to increase women's position in 4. Property of a Hindu female.
the society as a result of increasing demand In this act, the position of women in terms of
from well-wishers of women in the society. property grew, as in this act Hindu Woman's
limited estate is abolished and any property
Hindu Succession Act. which is possessed by a Hindu female is her
Hindu Succession Act was passed by the absolute property and she have the right to
Parliament of India in 1956 to codify the laws deal with it and also dispose it off by her
relating to the unstilted succession among the will.1 1 After the amendment act 2005, when a
Hindus, Jains, Sikhs and Buddhists. 9 This act Hindu dies his interest in the property of the
brings uniformity in the system of inheritance joint family which was governed by the
and succession. Before the Hindu woman's Mitakshara law will be transferred by
right to property act, 1937, there was a rule of intestate succession or testamentary
survivorship by which the succession to the succession. And after this amendment, the
property of male was governed. This rule position of women was elevated, where the
means that when one member of joint family daughters can also be the coparceners and
dies, his share in the property of the joint they have the same rights in the coparcenary
family transfers to the next surviving male properties like sons. And this advantage is
member who is commonly known as not available to daughters married prior to or
coparceners. Coparceners have unity of to a partition which earlier was effective
possession and they jointly inherit the before the commencement of the Hindu
property. Joint family and coparcenary are Succession (Karnataka Amendment) Act in
definitively different because coparcenary is 1990. This also avoids unnecessary litigation.
restricted to three generations but the joint Section 23 denies a Hindu female the right to
family has no bounds like this. Because joint seek partition of an inherited dwelling house
family includes several generations. The but this amendment of 2005 removed this
Hindu woman's right to property act, 1937, gender discrimination provision in the Hindu

8 Dr. Paras Diwan, Modern Hindu Law, pg " Woman's right to property, available at
398,(Allahabad Law Agency) 2 4 th edn., 2019. https://www.deccanherald.com (last visited on 1 7 th
9 Ibid. October 2020).
1 Ibid.

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Succession Act, 1956. The female heir can (b) any property inherited by a female Hindu
claim partition against the male heirs and the from her husband or from her father-in-law
restriction put on the female heirs right to shall devolve, in the absence of any son or
claim partition in relation to the dwelling daughter of the deceased (including the
house seized to be effective from 2005, in the children of any pre-deceased son or daughter)
light of omission of section 23. The effect of not upon the other heirs referred to in sub-
omission of section 23 of the Hindu section (1) in the order specified therein, but
Succession Act, 1956 should apply to all upon the heirs of the husband." 1 3
proceedings whether appellate or original,
involving adjudication of rights of the parties Section 15 and 16 are unfair, biased and also
and pending as on September 9, 2005 or violates various provisions enshrined in the
initiated after 9" September 2005.12 The constitution of India.
amendment of 2005 also reappeals section 24
of the act, which rejects widow's right to Section 15 (1) of Hindu Succession Act as is
inherit her husband's property upon the if a Hindu woman without creating a will dies
remarriage. But when we look into the her estate is divided in the following order,
section 15 of the Hindu Succession Act, we Firstly, husband and their children (and
found discrimination between male and children of any of her children who may have
female and diabolical point of views. As died before her). And if there is no husband
section 15 says, ". General rules of or children then upon the heirs of her husband
succession in the case of female Hindus. and if there are no heirs of the husband then
(1) The property of a female Hindu dying to the husband's parents. Further, if there are
intestate shall devolve according to the rules no husband's parents then to the heirs of the
set out in section 16, deceased woman's father and if there are no
(a) firstly, upon the sons and daughters heirs of the father then upon the heirs of the
(including the children of any pre-deceased woman's mother. The properties are
son or daughter) and the husband; classified in two groups,
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father; 1. Any property the woman acquires on
(d) fourthly, upon the heirs of the father; and her own.
(e) lastly, upon the heirs of the mother. 2. Any property which she inherits from
(2) Notwithstanding anything contained in anyone other than her husband or her
sub-section (1), parents.
(a) any property inherited by a female Hindu This rule also applies to the property she
from her father or mother shall devolve, in inherits from brother and sister and also
the absence of any son or daughter of the distant relatives. The husband's family has
deceased (including the children of any pre- been given preference over her own family.
deceased son or daughter) not upon the other Section 15(2) of Hindu Succession Act says
heirs referred to in sub-section (1) in the order if a widow dies and she is without a child then
specified therein, but upon the heirs of the any property she inherits from her husband
father; and will be transferred to the heirs of his parents.

" Rathnakar Rao Sindhe v. Leela Ashwat, AIR 1981 1 The Hindu Succession Act, 1956 (Act No. 30 of
MAD 62. 1956).

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The property she inherits from her husband And we can see in both section 15 and
will be devolved to her husband's heirs.14 In section 8, the father and the heirs of the father
the case of Keshri Parmai Lodhi v. have been given preference over the mother.
Harprasad5 , the court held that Section 15 The discrimination in this section is seen in
clearly says that the intention of the the case of Om Prakashv. Radha Charanand
legislature was to allow the succession of the ors1 6 . This is a landmark case, as it was the
property of a female Hindu to her sons and first case where an issue pertaining to the
daughters and in the absence of such heirs, above mentioned was discussed before the
then the property will go to the husband's court.
heirs.
Facts of the case:
It is found yet again there is a discrimination After the death of the husband, the widow
as after the children and the husband's family was immediately was thrown out of her
have the right to claim over all the property husband's house, the widow went to live with
which belongs to the man. The woman's her family and never came back to her
family has not been stated. When we see husband's house. she was provided education
section 8 of the Hindu Succession Act, it by her parents, further she got a job. The
defines that "General rules of succession in widow died. After her death her mother
the case of males. -The property of a male claimed the right over the widow's property
Hindu dying intestate shall devolve and her husband's heirs also claimed the
according to the provisions of this Chapter same. The property of the widow was a self-
(a) firstly, upon the heirs, being the relatives acquired property and was undisputed by
specified in class I of the Schedule; both the parties. The question is whether the
(b) secondly, if there is no heir of class I, then court pertained to the mode of transfer of the
upon the heirs, being the relatives specified self-acquired property of an intestate Hindu
in class II of the Schedule; female. The claim of the widow's mother is
(c) thirdly, if there is no heir of any of the two that no member of the widow's husband's
classes, then upon the agnates of the family including the heirs of her husband's
deceased; and had made any contribution and the property
(d) lastly, if there is no agnate, then upon the acquired by the widow must devolve
cognates of the deceased." according to the rule laid down in section
15(2) of the Hindu Succession Act,1956. And
After looking at section 8, we can see that the the claim made by the widow's husband's
male's property will devolve solely to his heirs is that the Hindu Succession Act, 1956
heirs and his wife's heirs have not been given does not lay down specific rules for the
preference. But when we look into section 15, transfer of the self-acquired property of a
it clearly gives preference to the husband's Hindu female, so therefore the property must
heirs. be transferred according to the rule laid down
in section 15(1). 17

" Devendra Damle, "Hindu Succession Act, 1956: 15 AIR 1971 M.P. 129.
The Fight to end Gender Based Discrimination 16 2009 SCC 66.
continues", available at https://www.livelaw.in (last 17 Upasana P., "Devolution of the Self-acquired
visited on 2 5 th October 2020). property of an intestate Hindu female-A grey area

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The judgement given by supreme court: provisions for e.g., Article 142, which would
The court after considering the matter stated help it arrive at a legally apt decision by the
that the issue is difficult to solve and stated testification of complete justice. They simply
that "only because a case appears to be ignored Article 142. The court bound itself to
difficult would not lead us to invoke different the literal reading of the statute and gives the
interpretations of a statutory provision which decision which contravenes the principle of
is otherwise allowed". Further, the court said justice, equity and good conscience.
"it is now well settled principle of law that Therefore, the decision of the court has found
sympathy and sentiment alone would not be the miscarriage of justice as it failed to adopt
a guiding factor in determining the rights of a fair, just and logical manner and fails to
the parties which are otherwise crystal clear." satisfy the expected threshold of soundness.2 3
The court cited various cases like Subha B. No one noticed this problem until the 174"
Nair and ors. v. State of Kerala and anr1 8 , H. report of the Law Commission of India
S. L D. C. and ors. v. Hari Om Enterprises acknowledged that this law is discriminatory
and anr.19 , Ganga Devi v. District Judge, in nature and reflects patriarchal assumptions
Nainital and ors.2 0 , Bhagat Ram v. Teja and a woman should be capable of acquiring
Singh2 1 . And court held that the statute is property on her own, through her own efforts
silent related to the self-acquired property of and skills.24 The 2 0 7 th report of the
a Hindu female's devolution and the general Commission also noticed that the Hindu
rules of succession laid down in section 15(1) Succession Act is damaged for the woman
will apply and the court dismissed the appeal because it does not recognise their self-
of the widow's mother.2 2 acquired property and this report also
proposed for the amendment in the woman
Failure of the Justice: self-acquired property. 25 Also, in the 19'
The court's decision was not appropriate, it is report of National Commission for Women
positivistic application of the law which led on the review of laws and legislative
to the devolution of the self-acquired measures affecting women has proposed that
property to the widow's husband's heirs and in order to make the transfer of self-acquired
not her heirs. Instead of the fact that the property to be equal to male and female both.
26 Section 8 of the Hindu
widow's husband's heirs had done nothing to Succession Act must
support the widow and even threw her out be amended and made gender neutral and
from the matrimonial home. In this case, the remove the word male and also section 15 of
court limited itself to the statutory provisions the Hindu Succession Act must be revoked.
in spite of having various other constitutional In 2013, the bill was tabled and sought to

that needs immediate legislative attention", Vol 2 23 Supra Note 17.

Issue 8 JCIL. 24 Dr. Justice AR. Lakshmanan, "Let Us amend the
18 2008 (9) scale 16. Law, it is only fair to Women", available at
19 2008 Insc 964. https://www.thehindu.com (last visited on 2 7 th
20 2008 (2) SCC 300 October 2020).
21 1999 237 ITR 364 2s Law Commission of India, Report No. 20,
22 Om Prakash ans ors. V. Radha Charan and ors., on available at https://lawcommissionofindia.nic.in (last
5 th May 2009, available at on 2 7 th October 2020).
https://www.indiankanoon.org (last visited on 26 Supra Note 17.
2 7 th
October 2020).

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include section 3(k) of the Hindu Succession the court held that the custom violated article
Act which explains self-acquired property as 14 and truck it down. The Constitution of
the property which includes both movable India is above all and if any custom or
and immovable property which is acquired personal law violates any provision of the
by a Hindu by her own capability. Further, it constitution then it will be struck down.
sought to amend the section 15 of Hindu Therefore, we noticed gender discrimination
Succession Act to make a system of in section 15 of the Hindu Succession Act.
devolution of self-acquired property wherein Article 15 of the Indian Constitution says
her husband and children died, the first "Prohibition of discrimination on grounds of
preference would be given to her parental religion, race, caste, sex or place of birth
heirs over her husband's heirs but the bill (1) The State shall not discriminate against
lapsed and there has been no further any citizen on grounds only of religion, race,
legislative measure. caste, sex, place of birth or any of them
(2) No citizen shall, on grounds only of
Is Section 15 of The Hindu Succession Act religion, race, caste, sex, place of birth or any
Constitutionally Valid? of them, be subject to any disability, liability,
Section 15 and 16 of the Hindu Succession restriction or condition with regard to
Act, 1956 are discriminatory and contravenes (a) access to shops, public restaurants, hotels
to the different provisions enshrined in the and palaces of public entertainment; or
constitution of India. It is coherent that there (b) the use of wells, tanks, bathing ghats,
is a gender discrimination as Section 15 roads and places of public resort maintained
clearly gives preference to the husband's wholly or partly out of State funds or
heirs over the female's heirs. Male relatives dedicated to the use of the general public
get preference over female relatives. Section (3) Nothing in this article shall prevent the
15 violates Article 14 of the Indian State from making any special provision for
Constitution as it clearly says "The State shall women and children
not deny to any person equality before the (4) Nothing in this article or in clause ( 2 ) of
law or the equal protection of the laws within Article 29 shall prevent the State from
the territory of India. Prohibition of making any special provision for the
discrimination on grounds of religion, race, advancement of any socially and
caste, sex or place of birth." educationally backward classes of citizens or
for the Scheduled Castes and the Scheduled
And whenever the court found Tribes."
discrimination, they struck down that rule as
we can see in the case of Haji Ali Dargahv. Looking above, Article 15 (1) clearly says
Dr. Noorjahan Safia Niyaz2 7 , where the that there should be no discrimination of any
woman entry was banned in the dargah, the citizens on the basis of religion, race, caste,
court found it discriminatory in terms of sex or place of birth and section 15 of Hindu
gender and struck down this rule. Similarly, Succession Act clearly a discrimination of
in the case of Indian Young Lawyers sex, therefore section 15 of Hindu Succession
Association v. State of Kerala2 8 ,
which is Act violates both Article 14 and 15(1) of the
popularly known as Subrimla case in which Indian Constitution.

27 2016 SCC 5394 28 2018 SCC 1960

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In the case of Mamta Dinesh Wakil v. Bansi Act has been male centric and patriarchal in
S. Wadhwa2 9 the court determined that in the nature. The legislature tries to make changes
matters of devolution of property the Hindu in the law to bring equality but the
Succession Act is biased on the basis of amendment of 2005 changed only some
gender and therefore violative of article 15(1) aspects which are discriminatory in nature
of the Indian Constitution. The Bombay High but some are still left. There is still an
court referred the question of irrational discrimination towards women is
constitutionality to the larger bench which giving the preference to the male heirs over
has so far not been constituted so therefore her own family's heirs even in the self-
the question whether the section opposed the acquired property. There is no logical
constitution or not is not yet settled. When the explanation for this hierarchy. Female
court held these provisions to be ultra vires of intestate succession in Hindu law is
the constitution of India then legislature will extremely discriminatory in nature and the
amend the law. present law has led to arbitrary results.
Section 15 of the Hindu Succession Act.
Sonubai Yashwant Jadav v. Bala Govinda 1956, is clearly arbitrary in nature and
Yadav30 , in this case, the court held that the unconstitutional in nature. Hence, this section
classification of heirs of the husband was should be amended and the preference should
under the presumption of unity of the woman be given to her own heirs over her husband's
with the husband's family. The court found it heirs so therefore the general rules of
not satisfied and held that the discrimination succession related to Hindu women must be
was only among the gender and not among changed so that it will bring equality and
the family lines because the concept of elevate the position of women in the society
keeping the property within the family it and turn constitutionally valid.
came from, exist only in the cases of female
succession and not for the male. It was
therefore, held that the section is invalid and
unconstitutional. The section is still there in
statute book but the fact that the High court
has found it void and unconstitutional and
raises hope in the community and a step
towards the amendment of this section.

Suggestion
After looking at the constitution and section
15 of the Hindu Succession Act 1956, it
should be amended so that when the Hindu
female dies intestate leaving her self-
acquired property with no heirs as stated in
section 15(1), the property should transfer to
her husband's heirs. Subsequently, looking
above, we can say that the Hindu Succession

29 2000 T.P. 917/2000 " AIR 1983 Bom. 159

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