The Supreme Court will hear the final arguments on the challenge to the constitutional validity of Sections 15 and 16 of the Hindu Succession Act, 1956.
On Wednesday, a writ petition challenging the constitutional validity of sections 15 and 16 of the Hindu Succession Act, 1956 is set for final disposal before the Supreme Court bench of Dr. Justice Dhananjay Chandrachud and Justice Surya Kant.
The Special Leave Petition and Writ Petition were filed by advocates Mrunal Buva and Dhairyashil Salunkhe. The special leave petition was filed against the order of the Bombay High Court. In February, 2019 about Special Leave Petition, the Supreme Court had stated that “during the hearing, the parties tried to examine the possibility of a settlement. The dispute was settled through the mediation of lawyers.” In the same order, the Supreme Court then issued a notice in the Writ Petition stating “the writ petition filed before this court under Section 32 raises an important question of gender equality”. The copy of the Writ Petition was directed to be served to the Attorney General’s office.
The Written Arguments based on these several points have been filed by Mrunal Buva, Advocate for the Petitioner, in the writ petition. The Respondent Union of India has filed the counter affidavit to the Writ Petition opposing the writ petition and discrimination in Sections 15 & 16 of Hindu Succession Act, 1956. Meenakshi Arora, Senior Advocate-Amicus Curie, has also filed written submissions.
The said writ petition unveils deep-rooted patriarchal ideology under the Hindu Inheritance Act, 1956 based on the following grounds:
Section 15 of the Hindu Succession Act, 1956 gives priority to the heirs of the husband over the parents of the deceased; If a Hindu woman dies without making a will. Since the husband is alive at the time of her death, he takes all her property without leaving any share for her own mother or father; This is because they come in the next order in comparison to the hierarchy of the Hindu man dies intestate whose mother is provided in the class 1 heir class.
Section 15(2) provides source of acquisition of property as a basis to devolution of a property of a woman dies intestate-issueless; whereas for man u/Section 8 or 10 of HSA, 1956 no source based devolution of a property is provided when he dies intestate. Further, the property of a woman goes back to a source from whom she inherited the property such as father, husband & father-in-law. However, it again discriminates with the mother, as, even if woman inherits from her mother, her father’s heirs succeed the property.
Section 8 of the Hindu Inheritance Act, 1956 gives preference to children/men. Blood relatives can only be inherited by men, not by women. When a Hindu man dies, his blood relationship is given priority. His property is distributed among the heirs of class 1 which includes his wife, children, mother and then father of class 2. His mother shares equally with the child and the widow. No matter the manner in which he acquired the property, his wife’s relatives do not even know the order of inheritance.
Succession laws for Hindu women are governed by the Hindu Succession Act, 1956. Section 14 of this Act clarifies Hindu woman is absolute owner of her property. While Sections 15 and 16 give the rules of inheritance and the order of succession. The relevant provisions of this Act do not consider a Hindu woman to be an independent person capable of transferring her property to her blood relatives. Pursuant to Section 14 of the Hindu Inheritance Act, 1956, any property in her possession is said to belong entirely to a Hindu woman.
However, discrimination in these legal provisions is based solely on gender and not on family ties. To test the feasibility of the dispute, the idea that under the Hindu Succession Act, 1956, that the inheritance is kept in male lineage scheme to keep property in the family, is irrational, otherwise Hindu man’s property would not be inherited by daughters, sisters ‘sons and sisters’ daughters, as they marry into other people’s homes. So the only basis for this classification is gender.
Section 15 and Section 16 of the Hindu Succession Act, 1956 are highly discriminatory. Her own property is not inherited by her original heirs. These sections therefore violate the scheme of the Constitution and are unconstitutional.
The question may also arise as to whether the judiciary should interfere in individual laws. However, it would be a flaw that while society is moving towards gender equality, the Hindu Succession Act discriminates based on gender. Laws that discriminate on the basis of gender alone can be questioned. Furthermore, there have been progressive changes in Hindu law itself to remove gender discrimination. Thus, the judiciary has the right to intervene in the latter case.
It is completely irrelevant whether personal law was established on practice or religion or codified or not, if it is a rule of law and decision, if it violates the concept of gender equality, it can be challenged under Part 3 of the Constitution.
The fundamental right to equality guaranteed under Article 14 of the Constitution, manifested in its scope, the values of equality, gender equality, gender equality and gender justice are embedded in the guarantee of equality under Article 14, social status based on patriarchal values or social status based on male compassion are completely inconsistent with Articles 14 and 15 of the Constitution.
The rights of Hindu women to human dignity, social dignity and self-respect are important aspects of the right of women to live with dignity under Article 21 of the Constitution. Gender justice is a very important constitutional goal, without which half of the country’s citizens will not be able to fully enjoy their rights, status and opportunities.
Gender equality and respect for women are rights not only for fulfilling the aspirations of every woman who is an equal citizen of this country, but also for the wider welfare of the society and the progress of the nation. Hindu women, Socially and economically, deserve equal participation in the development and progress of the world’s largest democracy. All forms of discrimination on the basis of gender are a violation of fundamental freedoms and human rights.
The relevant provisions of the Hindu Inheritance Act, 1956, which discriminates between men and women, are:
Section 15 of the Hindu Inheritance Act, 1956 lists the heirs of a woman’s property and Section 16 defines the order of succession.
Relevant provisions of the Hindu Succession Act, 1956
Section 15 of the 1956 Act provides the general rules of succession in the case of female Hindus. Its sub-section (1) lays down that the property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16-
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
Section 16 deals with the Order of succession and manner of distribution among heirs of a female Hindu and stipulates that Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those including in the same entry shall take simultaneously.
On the other hand, section 8 (General rules of succession in the case of males) provides that the property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; [Heirs in Class I are- Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre deceased son]
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
[Heirs in Class II are- I. Father.
II. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister.
III. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s daughter’s son, (4) daughter’s daughter’s daughter.
IV. (1) Brother’s son, (2) sister’s son, (3) brother’s daughter, (4) sister’s daughter.
V. Father’s father; father’s mother.
VI. Father’s widow; brother’s widow.
VII. Father’s brother; father’s sister.
VIII. Mother’s father; mother’s mother.
IX. Mother’s brother; mother’s sister.
Explanation.—In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood]
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased.
Section 10 of HSA, 1956 provides that the property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules: —
Rule 1.—The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share.
Rule 2.—The surviving sons and daughters and the mother of the intestate shall each take one share. Rule 3.—The heirs In the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.
Rule 4.—The distribution of the share referred to in Rule 3— (i) among the heirs in the branch of the pre deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters get equal portions; and the branch of his pre-deceased sons gets the same portion; (ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.
Case Details: Kamal Anant Khopkar Versus Union of India & Anr.