Section 15 of the Hindu Succession Act that determines the order of succession in the case of a Hindu woman who dies intestate should be amended for, it reflects an entrenched system of subjugation of women.
The family that had sent a young woman back to her parents after her husband's death, surfaced when she died. There was a contest between her mother and the husband's sister's sons for her property. The mother lost all the way up to the Supreme Court, which noted that it was a “hard case.”
“What women can expect from Courts… is a qualified degree of equal treatment,” wrote Professor Wendy Williams in “The Equality Crisis: Some Reflections on Culture, Courts, and Feminism,” published in 7 Women's Rts. L. Rep. 175 (1982), adding that “women's equality as delivered by Courts can only be an integration into a pre-existing, predominantly male world.”
This is so because, though the courts may be well meaning and earnestly intend to uphold equal rights for women, they can only reflect the shared life experience of individuals. This takes a largely male hue, not only because the judgment-deliverers are predominantly male, but also because society systemically supports male supremacy. And this systemic slant shades the thought processes that lie behind laws too, and the courts apply the laws in their judgments.
The skewed reality in which gender is positioned in the social, political, economic and cultural transactions shows up the fact that law is not gender-based — sometimes it is not even gender-neutral. Gender-neutrality will not be enough if it merely maintains the status quo — which is nothing but the perpetuation of gender discrimination. Women need, and must have, affirmation of their equality.
If enactment of laws was sufficient to protect women, then women in India are on velvet. But reality bites. The law is observed in the breach, or the law is not effectively enforced by the law-enforcement agencies, or judicial redress lies beyond the woman's horizon, or yet, the evil is seen as an accepted practice. Or women get beaten by “hard cases.”
Look at this particular “hard case,” which is reported in (2009)15 SCC Page 66 Omprakash and Others Vs. Radhacharan and Others. In 1955, Narayani Devi married Deendayal Sharma, who died within three months. Soon she was driven out of her matrimonial home. She lived with her parents, earned a living and died on July 11, 1966. She left behind a substantial estate, but wrote no will. Both her mother and her husband's family claimed a succession certificate. The Supreme Court considered the scope of Section 15 of the Hindu Succession Act and held against the mother.
Section 15(1) says that if a Hindu woman dies without leaving a will, her property will devolve in the following order. The first in the order are her children, children of a predeceased child and her husband. If none of these persons is available, then it will go to the next in line: the heirs of the husband. Standing behind them will be the heirs of the father and the mother. Section 15(2) says that notwithstanding these provisions, if the woman is not survived by a child or the children of a predeceased child, then any property she inherited from her father or mother will go to the father's heirs, and any property she inherited from her husband or father-in-law will go to the husband's heirs.
The Supreme Court held that Section 15(1) lays down the ordinary rule of succession; Section 15(2)(a) only carves out an exception to Section 15(1). It observed that the law is silent on a Hindu woman's self-acquired property, and such property cannot be considered as property inherited from her parents. The court said: “This is a hard case… But then only because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision, which is otherwise impermissible. It is now a well settled principle in law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous.”
In Narayani Devi's case, the mother's claim was not based on sympathy or sentiment, but logic and principles of fairness, equity and justice. The Supreme Court, however, found that the law was a hurdle to her claim.
Justice A.M. Bhattacharjee wrote thus in Modern Hindu Law Under Constitution: “Under the provision of Section 15(1) read with sub-section (2) in the absence of children, the order of succession in the case of a female Hindu would vary according to the source of acquisition of property.” He asked why the source of acquisition should be a determinant in the case of a Hindu woman when it is not so in the case of a Hindu man. “Unless we still want to perpetuate in a somewhat different form the old outmoded view that ownership of property cannot be full but must be somewhat limited.”
A mother shares equally with the children and the widow when a son predeceases her. But when a married daughter dies, the mother ranks after the husband's heirs. This is the law as enacted in 1955-1956. Hindu law as it existed before the Constitution has been the subject of criticism for the glaring inequalities that it perpetuated. But we find lurking inequalities even in subsequent enactments.
Ironically, some of the ancient texts have a more pragmatic and equal approach in such cases. Stridhana, according to some texts, is categorised as technical and non-technical. Non-technical stridhana is that property which is acquired by a woman through her skill and mechanical arts (Vasishta). In the case of a woman who has no issues, the heirs to stridhana are her husband, mother, brother or father (Devala). Aprajaayaa haredbhartaa mata bhrata pitaapi va, says Devalasmrti (A.D. 600-900).
In the 21st edition of Principles of Hindu Law (Mulla), it is observed that Section 15(2) “seem to have been made on the ground that they prevent such property passing into the hands of persons to whom justice would require it should not pass and on the ground that the exceptions are in the interest of the intestate herself.” If the intention of this provision is to prevent property from devolving on persons to whom justice “would require it should not pass,” then the family that had refused to take care of Narayani should not have got anything.
In India those who own property do not always write a will. Narayani did not. She did not know the law of succession. She certainly would not have wanted her husband's sister's children to grab her earnings. If her spirit is floating around, it must be a very unhappy one. In India if a woman loses her husband because of death, desertion or divorce, there is a high probability that she will come to be with her parents. In the present day, many women have self-acquired property that they have earned because of their parents' support. These are the ground realities.
Section 15 should be amended. The order of succession should be altered. In addition to “inheritance,” other modes of acquisition from parents or because of parents could be added.
Justice Bhattacharjee's criticism of Section 15 has been referred to above. Decades after his book was written, the injustice continues. Neither biological nor social differences shall corrupt the ideal of equality or the reality of equality. In this case the law views the man's estate and the woman's estate through different spectacles: her autonomy over her property is less complete than his. How else can one explain the injustice? There are many more such cases. The law should not stand in the way of justice.
Whether the Supreme Court could or should have addressed the gender discrimination, and seen that the apparent “hardness” of the case was only the outer layer of an entrenched system of subjugation of women, and unpeeled the layers, are questions that need not be argued now.
Professor Williams' article says: “But to the extent the law of the public world must be reconstructed to reflect the needs and values of both sexes change must be sought from legislatures rather than courts. And women whose separate experience has not been adequately registered… are the ones who must seek the change.” It is time that this law is made gender-balanced.
(Prabha Sridevan, a former Judge of the Madras High Court, is Chairperson, Intellectual Property Appellate Board.)
Keywords: Supreme Court of India, judiciary, Hindu Succession Act, Women Rights
I believe that in a democratic country like ours, the Courts should take an activist role to rectify legislative loopholes. The Supreme Court has earlier come out with path breaking judgments like in the Vishaka case where it laid down the guidelines on sexual harassment of women at the work place, where it essentially plugged legislative inaction. The Law has to evolve as society evolves and the Courts have the responsibility of ensuring that fairness and equality are imparted in a constitutionally governed rights-based society such as ours.
The judgment is sound in terms of law. Where the words of the section are so clear, the judges have no leeway whatsoever to deviate from it. So don't blame the judgment.
The author has repeatedly mentioned in the article about gender equality and justice but has forgotten to mention the inequality and injustice meted out to men from time immemorial. The recently enacted laws like domestic violence act treat all offenders as being men and victims as women. This is apart from IPC 498A and many other laws that violate the principles of equality.
Ignorance of laws not an excuse. It is the duty of the citizens, more so when they are educated, to be aware of what the law is when it comes to matters affecting their life and property. That being said, as Prof. Williams has stated, it is for the legislature to amend the mistakes or injustices that occur because of the redundancy of certain laws. The courts cannot be blamed as their duty is to interpret the law as it is laid down and cannot give their own interpretation to give a remedy which is otherwise not provided for. The courts have gone beyond their jurisdiction in giving wider interpretation mainly in cases involving fundamental rights.
The article should be more a light of beacon for all women to safe gaurd their property, an alert for the legislature to identify the chasm between the old and obsolete laws and the changing circumstances that require an overhaul of such laws and less a case of injustice by courts.
One of the important jurisprudence concepts is "It is not enough if justice is done, justice should also appears to have been done". In the instant case any commoner would perceive that the right of the mother has been wronged. Also, another important aspect that should concern everyone's mind, more particularly those responsible to deliver justice, is that of timely disposal. In the instant case the daughter died in 1966 and the claim was finally disposed off (possibly) in 2009 . The mental agony of litigants cannot be monetised or quantified otherwise. There is a tendency to attribute reasons for such delay. Pleading such helplessness by the very people equipped with the authority is seldom inspiring.
Please look at the way in which section 14(1) is interpreted so widely to knock sec 14(2) off law books, without application and appreciation of right of maintenance causing great controversy, women who are illiterate,aged above 70 years are caused to execute will bequeathing others property in favour of money and power holders to cause trouble to true owners, Hence the laws should be changed keeping keeping up the pattern of abuse and gender- neutrality.
Really it is not a hardcase.Earlier lawmakers thought women were incapable of earning because of their illiteracy and housebound nature.Today women are free,literate &earn on their own.The law has only takenotice of the changed environ and in conjunction with spirit and intent of the original law is expected to award an enlightened judgement on par with the prevailing social structure &nature.Cases should be judged with the ancient in the background ,the existing perspective in reality.One good precedence is PIL.and the law dispensers are expected to act in consonance with evolving good and welcome betterments in the social strata.
The judgment is ridiculous. The law must be amended.
Mr Parthasarathy is right. This issue would never have risen if the deceased had a will in the first place. I would strongly advocate it being made compulsary for all. Women who are dumped by their husbands and live with their parents, let this be an eye opener for you all. Don't leave even a miniscule chance for the undeserving to grab YOUR hard earned money.
The law, when it was made did not envisage women acquiring property on her own. The law needs to be amended to keep track of changing times. One must remember that what seems like the right or the fair thing to do is necessarily not what the law prescribes. On that note, laws need to be amended to make then fair.
Is this the same legal system which believes in 'Let Hundred Guilty Be Acquitted But One Innocent Should Not Be Convicted'! If we are to go just by the letter of law, then what about the injustice first done to Narayani Devi when she was moved out of her matrimonial home? Our legal system may continue to remain blind folded and deliver justice going by which side is heavier, but the changing socio economic scenarios and differing ground realities call for delivering justice with open eyes.
i appreciate the equality but while looking at social, political and cultural aspects while makin laws we forget some facts. In Punjab and Haryana where daughters are provided equal right in property. It has been happening that daughters after marriage sell their part of land to anybody in the village whosoever is giving higher price as they are not likely to come back to their parental village for farming as generally married to far away places. It has resulted in a bias against birth of girls under the fear that on one hand a family is required to spend huge amount of money(huge dowry) in marrying off their daughters to worthy grooms and theirafter the same son-in-law becomes the claimant to paternal property of wife. This problem has strongly contributed to the poor sex ratio in these states.
At the time when the Hindu Succession Act was drafted, there were not many instances of Hindu women having self acquired properties. But now there are many women who a career oriented and do have self acquired properties. The Act, therefore, needs to be amended suitably. However, the instant case may not be construed as a representative one. There would be many instances when an earning woman would like her in-laws to inherit her properties. The best solution, therefore, would be to write a will. But this does not always happen. Even well educated women die intestate. In such a scenario , equity requires that the judges be given some discretionery authority to arrive at a fair distribution based on facts of each case.
I'm not a male-chauvinist. However, it should be noted in a land where there is no justice and men are subjugated by law these are some of the benefits of the old system. My stand has the following reasons: 1. If women consider themselves to be equal to men, why do the need reservations? 2. Why are the benefits to hold property as well as in terms of tax? 3. It is impossible for men to get divorce without paying alimony. I agree it is mandatory in certain cases that dwindling day by data. However, why not pre-marital agreement recognized? 4. There are separate buses for women why not for men (some may not prefer but that way one can get to office with less dirt on their shirts). Basically, in India as well as in many countries in the world the law is biased towards women. Some of the benefits men enjoy are attributed to these old systems. So let be it, we are not questioning the laws that delays justice indefinitely neither those laws those let crime cherish, so be it.
It is very difficult for normal people to understand a complex issue like law which involves a lot of turns to arrive at a judgement. But, it is not difficult to see where the judiciary is having a biased approach when it comes to certain laws (one of which is explained above). I feel the people ( especially women) should be sensitised about such cases which will ensure that they do what is required according to law when it comes to their property or anything material worth of bequeathing.
Interesting article. Historically society always discrimated women.
Certainly. The Hindu Succession Act should be amended to do justice to the women like Narayani Devi. Claimants to any property that she got from her parents should be her husband, children, or her parents. Claimants to any property that she acquires on her own should also be same. Claimants to any property that she acquires from her husband should be her children or their children.
Ultimately every single person on earth - living or dead, must be compelled to make
a WILL. Let the state not decide what to do with your hard earned money.
A very nice article that laid out the inequality and lack of will If I may say (with due respect to the judiciary). We have seen that in many cases the Judiciary telling the state how to interpret the law when the verdict is complicated, and I feel that should have been the case here and verdict in favor of the mother who took care of her daughter post marriage.
Also this article highlights the need of a Pre-nup in the Indian society, where will is one thing, we need pre nup that clearly establishes the right even between the partners.
Function of the judicial system should be to deliver justice.
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