Reforming Gender Bias: Analyzing The Evolution Of Hindu Succession Laws And The Path To Gender Equality

Introduction

Property rights and land distribution have been associated with social statuses, economic securities, and power for a long time. Historically, the ownership of property not only provided a means of generating income but also power and prestige within society. However, such property rights have mostly been granted to the male section of society, and hence, women were marginalized and placed at a significant disadvantage.

Thus, the laws of inheritance and property rights in most cultures are deep-seated within the patriarchal norms of a Hindu society. It is these very norms that are most cause-oriented and have thus discriminated against women, denying them the chance of inheriting property and not giving them the status of a coparcener in a Hindu joint family. Instead of bequeathing a fair share of the family property, the women were often compensated with jewelry or other movable assets, which were meager substitutes for land ownership’s assured security and economic stability.

This clearly reflects the patriarchal underpinnings of traditional Hindu law for interpretation. The principles of inheritance under the Mitakshara and Dayabhaga schools of interpretation are just that, with the Mitakshara system, which covered most of India, having coparcenary property devolving by survivorship. The principles upon which the survivorship is based contain provisions upon which the property is devolved to the surviving male members of the coparcenary, denying female members any rightful claim to the property.

Another major step in reforming such discriminatory practices was the Hindu Succession Act of 1956, which had the object of codifying and making Hindu inheritance law more modern. For the first time, women received the right to inheritance under that Act, from which they were explicitly excluded previously. However, as forward-looking as the Act was, it needed to go further. Section 6 continued the principle of survivorship and bore the consequence of excluding female heirs from coparcenary property.

Women were given the right of inheritance in family property, but it was limited to the father’s property and did not hold under the principle of coparcenary for ancestral property. However, the call for reform in this area was witnessed. It became more necessary in society as the traditional systemic arrangements responsible for depriving women of their rights gave way to modernization and the inevitable change with emphasis on the convergence towards gender equity.

Historical Context of Gender Disparity in Hindu Succession Law

Traditional Hindu Law

Major exceptions to this have been the traditional Hindu laws interpreted under the schools of Mitakshara and Dayabhaga, which severely curtail the inheritance rights of women. The Mitakshara school followed, in most parts of India, “the doctrine of survivorship.” The rule, therefore, is that the property descends to the surviving male members of the coparcenary; it inherently excludes females from being coparceners and excludes them from inheriting property directly. This limited women’s economic freedom and furthered inequality within the family structure.

The Dayabhaga school, followed mainly in Bengal and Assam, slightly opens its doors to recognizing women’s right to inheritance. However, these rights are considerably limited compared to those of the male heirs. Thus, these systems are based firmly on patriarchy, with the assurance that women remain dependent on their male relatives for economic security and property rights, reinforcing a cycle of dependency and subordination.

Limited Rights of Women

Traditionally, women were conceded a limited estate in the property, known as ‘Stridhan.’ It includes gifts, bequests, and inheritances given to women, which they could strive to utilize during their lifetime but could not alienate or transfer. While Stridhan did offer some financial security, its ambit was narrow, and it was no match for the ownership rights enjoyed by men. This concept of limited estate served to justify the status of women as dependents, which limited their economic independence and hence supplied yet another compelling reason for gender inequality in the property rights conclusion.

Except for Stridhan, women’s rights relating to maintenance and residence were limited. These were, in fact, rights dependent on the goodwill of male relatives. These rights were illusory in nature as they meant nothing and just left women vulnerable to all kinds of economic hardships. Thus, their inferior status was established within the family and society at large.

The Need for Reform

Early Legislative Efforts

The Hindu Succession Act of 1956 marked the first significant step towards reforming Hindu inheritance laws. While it was a progressive step aimed at modernizing and codifying Hindu succession laws, it fell short of granting women equal rights in property. Section 6 of the Act retained the principle of survivorship, thereby continuing to exclude women from coparcenary rights. Women were given inheritance rights to their father’s property, but these rights did not extend to joint family property, which remained governed by the rules of coparcenary.[1]

The inadequacy of the 1956 Act in addressing gender disparity highlighted the pressing need for more comprehensive reforms. The persistence of gender bias in inheritance laws called for a re-evaluation and restructuring of the existing legal framework to ensure equal rights for women.

Key Provisions of the Hindu Succession (Amendment) Act, 2005

The Amended Section 6

The Hindu Succession Amendment Act of 2005 made radical changes to Section 6 regarding the devolution of interest in the Mitakshara coparcenary property. Amended Section 6: Equal Coparcenary Rights: Under the amended law, a daughter has been provided equal rights in coparcenary ownership akin to a son. A daughter is a coparcener by birth in a joint Hindu family, and she has equal rights and liabilities akin to a son.

1. Abolition of Survivorship: The amendment abolishes the concept of survivorship about coparcenary property. It creates the same by testamentary or intestate succession, giving daughters their due shares.
2. Rights of Devolution: The amendment has clarified the interest of a deceased coparcener that shall be devolved by testamentary or intestate succession and not by survivorship to enable daughters to inherit the property of their fathers.
3. Partition Rights: Like sons, the daughters, too, have the right to demand a partition of coparcenary property. A daughter may apply for partition and claim her share in the property.
4. Alienation Rights: The daughter can alienate her share of coparcenary property by testamentary disposition. This provision empowers women with complete control over their share in the property.
5. Karta Status: The amendment empowers the senior-most female coparcener to become the Karta of joint family property. In the present scenario, this provision recognizes the leadership role of women in managing the affairs of the family and the property thereof.

Operation of Amendments and State Laws

Some states, including Kerala, Karnataka, Tamil Nadu, Maharashtra, and Andhra Pradesh, had passed state laws before the 2005 amendment that granted daughters coparcenary rights. These state laws were examples on which this national amendment was based. They underlined the need to ensure that inheritance laws were free from gender-based discrimination. The amendment ensured uniformity in states and equal rights for women in coparcenary property.

Core Issues in Section 6

Even the 2005 amendment brought a few progressive changes; there remain some crucial issues related to the application and construction of Section 6: –

1. Death Before Applicability of Amendment Act

One such crucial issue is whether the father had to be alive on November 9, 2005, when the Amendment Act became applicable. This was also made murky by the judgment of the Supreme Court in Prakash v. Phulavati, by which it was held that the amendment would not apply if the father were dead before the amendment came into force. This begs the question of whether the amendment would have a retrospective effect and would disentitle the daughters of all those fathers who had died before the stipulated date.

2. Equal Rights of Sons and Daughters

A fundamental objective of the amendment was that sons and daughters should receive equal rights as coparceners. However, the ground reality still favors sons in relation to inheritance due to social and cultural practices. The issue is implementation and propagation so that no daughter is prevented from enforcing her rights by any discrimination and social ostracism.

Judicial Interpretation and Key Case Laws

The judiciary’s role has been imperative in interpreting Section 6 and sorting out the ambiguities of its application. Several critical judgments have provided contours to the said provision.

1. 1. Prakash v. Phulavati (2015): This case held that if the father had died before the said 2005 amendment came into force, the same would not apply, or if the daughter were not alive on the commencement of the year 2005 would not get any right in the property belonging to the joint Hindu family, consolidation. Finally, it held that only ‘living daughters of living coparceners’ from the 2005 amendment and that Section 6 is not retroactive. This judgment created more confusion and mystery about the rights of daughters born before the amendment.[2]
2. Danamma v. Amar (2018) It was here that a decision was made in a different pronouncement that daughters have coparcenary rights in case the father died before the amendment in 2005, provided the partition had not been closed. She is entitled to the inherited property, as in case of her death, it shall go to her legal heirs on September 9, 2005. This ruling applies only to ancestral property and not self-acquired property.[3]
3. Vineeta Sharma v. Rakesh Sharma (2020) In this landmark case, the uncertainty regarding the 2005 amendment was restated. The Supreme Court held that daughters are entitled to equal coparcenary rights by birth, and even the father need not have been alive when the amendment was brought into existence.[4]

Analysis of Persistent Issues

Even considering these changes in legislation and judgments, specific major issues remain that have not supported female rights completely under Section 6.

1.     Lack of Awareness and Social Acceptance: Notwithstanding these legal provisions, many women remain unaware of their rights under the amended law. Social mores and pressures from the family make women hesitate to press for inheritance rights. In patriarchal societies, claims regarding inheritance rights are seen as blighted by interests damaging family harmony and thus naturally discourage women from entertaining allegations in the courts of law.

2.     Legal Ambiguities and Judicial Interpretation: The amendment has, therefore, created some legal ambiguities and various judicial opinions retroactively. The Supreme Court judgments in Prakash v. Phulavati, Danamma @ Suman Surpur v. Amar, and Vineeta Sharma v. Rakesh Sharma illustrate the changing judicial stance on the amendment. Their raison d’être substantially meant the daughter’s right and the application of amendments regarding cases before 2005.

3.     Issues In Implementation: These provisions under Section 6 are thus not implemented in reality because of bureaucratic hurdles and unwillingness on the part of the revenue authorities to alter the land records. This, in turn, tends to delay litigation much beyond the actual conferring of property rights to women.

4.     Choices: Gender Inequality in the Countryside: Traditional customs and practices continue to prevail in villages and often override statutory provisions. Even women in rural areas face significant challenges in securing their coparcenary rights, including social ostracism and lack of access to legal aid. A severe threat to the actual practice of Section 6 emanates from the traditional solid patriarchal attitude at the grassroots level.

Recommendations

In this respect, addressing the intransient issues and working effectively under Section 6 requires the adoption of the following measures:

1.     Awareness Campaigns: Extensive awareness campaigns regarding the amended law on inheritance rights for women should be given wide publicity by both governments and NGOs. They must be specially focused on rural areas and amongst the most marginalized communities to ensure that information reaches those needing it.

2.     Legal Aid and Support: Women must come forward and claim their rights to inheritance. Legal aid clinics and organizations must be established to assist women through the litigation process and surmount any bureaucratic hurdles that may confront them.

3.     Judicial Clarity: Even though the Supreme Court has interpreted many aspects of the amendment, further clarity through the judiciary is required to iron out its gray areas. Uniform and precise judicial interpretation will lead to consistent application and reduce the chances of conflicting decisions.

4.     Smoothening of Implementation Mechanism: Strengthening the implementation mechanisms of Section 6 is crucial for transforming legal provisions into benefits for women. This would involve expediting the process of updating the land records, smoothing delays in the bureaucracy, and ensuring timely enforcement of the court orders.

Law Commission Report Recommendations

The Law Commission of India cannot be disregarded as bringing an element of change in the laws and legislations that are in tune with the changing needs and requirements of the citizens of India. The Commission, by analyzing loopholes and gaps in the existing enactments and taking into view problems, brings appropriate changes to rectify and adorn the laws of the country, infusing wholeness and eliminating anomalies or ambiguous or superfluous provisions. The Hindu Succession Act of 1956 was one such legislation wherein specific provisions required a more holistic approach for their enforcement to move away from the gender-biased views and opinions that had dominated for decades. On this, the Law Commission brought out three the 174th report in the year 2000, and the 204th and 208th reports, 2008-which gave equality between the male and female members of the Joint Hindu Family, conferring equal rights to women as coparceners and guaranteeing equality of status.

174th Report

The landmark 174th Report issued by the Law Commission of India resulted in the passing of the Hindu Succession Amendment Act 2005. It enabled women’s inclusion and the devolution of property interests in their favor by eliminating gender discrimination from the Mitakshara coparcenary inheritance customs and tradition. While the Law Commission underlined anachronisms in the law, which severely dented the rights of women, in fact, property rights, it noticed a deviation from scruples that people acquired about the concept of partition, whereby some coparceners without the consent of certain coparceners, in fact, particularly women and daughters, resulting in undue fraudulent partitions. The report made a few recommendations for reforming the existing laws regarding gender inequalities.[5]

• The Law Commission recognized two primary models for abolishing gender-biased inheritance laws: the Andhra and Kerala models.
• The Andhra model, followed by four states (Andhra Pradesh, Tamil Nadu, Karnataka, and Maharashtra), gave daughters the same status as coparceners by birth as sons. However, it failed to protect the rights of mothers, daughters, and widows from alienation or testamentary disposition in favor of another person.
• The Kerala model abolished the concept of Mitakshara coparcenary and the right to property by birth attached to it. This model ensured better harmony between families and repealed the doctrine of pious obligation, which the Andhra model did not address.
• The distinction between women based on their marital status was removed, granting both married and unmarried women the same property rights.[6]
• The most significant change brought by the recommendations of the Law Commission was the amendment to Section 6 of the Hindu Succession Act. It proposed the same right by birth to both daughters and sons.
• Section 23 of the Hindu Succession Act, which imposed restrictions on the daughter’s right to claim partition of a dwelling house, was deleted. Female heirs can now demand and claim partition of the same.[7]
• Section 24, which restricted a widow from claiming inheritance of property after remarriage, was repealed. Widows are now eligible to claim property, making the condition of remarriage irrelevant.[8]
• The doctrine of survivorship was removed, along with the conditions of notional partition. Upon the demise of a Hindu male who died intestate, the distribution of property among coparceners will be governed by intestate or testamentary succession laws.

These changes introduced by the 174th report have tremendously altered the Hindu Succession Act of 1956, bringing gender equality and gender-just laws. These changes are considered to be the stepping stones to gender-just legislation.

The 204th Report

Despite numerous initiatives to eliminate gender bias and ensure gender equality as mandated by the Constitution, gender discrimination has persisted for decades. The 204th report was published to give effect to the reforms recommended in the 174th report and achieve the objectives set forth. The main recommendations of this report include:[9]

• Deleting specific entries from Class II as they have also been added to Class I, avoiding repetition.
• Adding specific entries to Class I heirs and deleting them from Class II.
• Moving the entry of ‘Father’ to Class II from Class I, next to ‘Mother.’

More such recommendations were made by the Law Commission regarding the entries under different classes and schedules to appropriately place all entries, considering the constitutional mandate of ensuring gender equality. This report also addressed the need for equality not only for women but for men as well. For instance, one of the recommendations observed that daughters were preferred in certain situations, but sons were left out, putting males at a disadvantage. Appropriate reforms were made to ensure the equal inclusion of both genders under the law.

The 208th Report

The 208th Law Commission Report proposed amending Section 6 of the Hindu Succession Act, 1956, to address oral partitions and their definition issues. Although the Amendment Act of 2005 brought equal coparcenary rights for daughters in a joint Hindu family, it did not include partition and familial agreements provisions. The Law Commission proposed that oral partitions should be given legal recognition, which was not included in the partition definition in Section 6(5) of the Hindu Succession Act, 1956, read along with the Registration Act, 1908.[10] The proposal was based on the Supreme Court’s decision in Kale and Ors. v. Deputy Director of Consolidation and Ors[11]., where the Court held that any document relating to a family arrangement in the form of a memorandum must be legally valid and binding on all family members, even if it is not registered. This view was taken in the interest of public policy, and all courts strive to adhere to it.[12]

Rebuttals and Critiques of the Recommendations

While the Law Commission has made several commendable recommendations, the biggest challenge remains implementation. Identifying issues and introducing reforms and amendments to legislation is only the first step; effective implementation is essential to bring about real change. Simply introducing reforms does not ensure that changes or solutions will be implemented. Therefore, strict implementation planning and strategies must be emphasized to effect the reforms correctly.

Another critique is that the recommended amendments challenge longstanding traditions and customs that have been prevalent for decades. While these customs deprived women of their right to equal treatment and status in coparcenary property, they are deeply connected to religious beliefs and family dynamics with historical significance. It is essential to ensure that these religious beliefs are not harmed in bringing reforms while also addressing the need for social changes based on the current dynamic needs of society.

Suggestions

Apart from the recommendations above, additional measures can enhance the effectiveness of the reforms and amendments in bringing about the necessary social changes in the legislation.

1. Creation of Extra State Commissions

• Establishment of State Commissions: Each state should establish dedicated commissions to support women asserting their coparcenary property rights. These commissions will act as legal representatives, advocating for women’s rights in ancestral property disputes.
• Central Coordination: These state commissions should be interconnected and coordinated with a central body, such as the National Legal Services Authority (NALSA), to ensure consistency and effectiveness in addressing women’s property rights issues.
• Collaboration: State Commissions should collaborate to ensure comprehensive engagement with women and safeguard their inheritance rights and coparcenary status.

2. Role of NALSA

• Facilitation and Policy Development: NALSA or the National Legal Services Authority can act as a facilitator in addressing disputes regarding the distribution of ancestral property involving women. A comprehensive policy should be laid out with experts and stakeholders to mitigate gender bias and inequality in property disputes.
• Free or Nominal Cost Services: Legal assistance should be provided to women free of charge or at nominal costs, covering litigation, documentation, court representation, and consultations. Legal assistance in the form of legal consultations for women is another method to help women struggling with ancestral property disputes.
• State Legal Services Authorities (SLSAs): SLSAs should extend their support through various legal aid services, ensuring equitable access, increased legal awareness, and women’s empowerment to assert their rights.

3. Using Alternative Dispute Resolution Mechanisms (ADR)

• ADR Implementation: With the assistance of NALSA and SLSAs, the ADR mechanism can efficiently handle inheritance and property disputes involving women.
• Expert Mediation: Experienced and trained experts should be made available to ensure the efficient and amicable resolution of disputes. Mechanisms such as mediation and conciliation should be tailored to address current gender dynamics and social changes, with a deep understanding of property law, inheritance laws, and gender equality.

Conclusion

The Hindu Succession (Amendment) Act of 2005 scaled a remarkable change after the Hindu Succession Act of 1956 since it is far more gender-equal, doing away with the gender bias that had hitherto been oppressing women. This has placed both the son and daughter at par in conferring coparcenary rights, legally addressing the injustices that women face based on their gender.

It is mainly because of the reports of the Law Commission of India, which identified and tried to remedy several such major lacunae and deficiencies in the Act as enacted, that the Amendment Act of 2005 has come onto the statute book. Indeed, these reports pointed out several grave matters concerning the devolution of property in a Joint Hindu Family and pleaded for including and protecting Hindu women’s rights in property.

However, the challenges persist in implementation despite such progressive amendments and judicial interpretations. In short, what is required is an all-out awareness campaign, legal aid, training, clarity in the judiciary, and beefed-up mechanisms for implementation to meet these challenges. Only after these areas are addressed can India begin to move toward the constitutional mandate of gender equality and afford women’s inheritance rights an actionable opportunity to perform effectively.       

Reference(s):

[1] Hindu Succession Act, 1956, §6, Act No. 30 of Parliament, 1956

[2] (2015) 16 SCC 10

[3] (2018) 3 SCC 343

[4] (2020) 9 SCC 1

[5] 174^th Law Commission Report, “Property Rights of Women: Proposed Reforms Under the Hindu Law,” Law Commission of India, 2000

[6] Savita Samvedi v. Union of India, JT (1996) 1 P.680

[7] Hindu Succession Act, 1956, §23, Act No. 30 of Parliament, 1956.

[8] Hindu Succession Act, 1956, §24 Act No. 30 of Parliament, 1956.

[9] 204^th Law Commission Report, Proposal to Amend the Hindu Succession Act, 1956 as amended by Act 39 Of 2005, Law Commission of India, 2008

[10] The Registration Act, 1908, § 51, Act No. 16 of Parliament, 1908

[11] Kale and Ors. v. Deputy Director of Consolidation and Ors., 1976 (3) SCC 119

[12] 208^th Law Commission Report, Proposal for amendment of Explanation to Section 6 of the Hindu Succession Act, 1956 to include oral partition and family arrangement in the definition of “partition,” Law Commission of India, 2008