Family Law II Project (1)

Family Law-II Project

Topic: Intestate Succession to a Hindu Female

Submission Date:. December 07, 2016.

Submitted By: Mahendra Singh (2235)

TABLE OF AUTHORITIES Cases •

Bachiraju v. Venkatapadu, (1865) 2 MHC, 402.

•

Dhanistha Kalita v. Ramakanta Kalita, AIR 2003 Gau 92.

•

Gangadaraiya v. Parameswaramma, (1869) 5 Mad HC, 111.

•

Gurbachan Singh v. Khichar Singh, AIR 1971 P&H 240.

•

Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, 1978 AIR 1239.

•

Shahaji Kisan Asme v. Sitaram Kondi Asme, AIR 2010 Bom 24.

•

Sheo Pertab v. Allahabad Bank, (1903) 25, 30 LA, 209.

•

Somaiah v. Rattamma, AIR 1959 AP 244.

Statutes •

Hindu Law of Inheritance (Amendment) Act, 1929

•

Hindu Succession Act, 1956.

•

Hindu Women’s Right to Property Act, 1937.

INTRODUCTION Prior to the year 1956, the issue of intestate succession to a Hindu female bore little importance, as in most cases, women enjoyed only a limited interest in property. A few exceptions existed, most notably in what was known in Shastric texts as a woman’s stridhana, under which in some cricumstances, she had an absolute interest, and succession devolved to the female intestate’s heirs. Though the earliest statutary reform sought to give widows enhanced rights in respect of her husband’s intestate property, intestate succession to a Hindu female remained uncodified till the enactment of Section 15 of the Hindu Succession Act, 1956. The paper begins with inquiring into the uncodified principles of stridhana that regulated the property of a Hindu female, and the law relating to the succession to such stridhana. The paper then seeks to examine some of the earlier statutary interventions in respect of a Hindu’s woman right to inherit property, and their relevance to female intestate succession. The final section of the paper is devoted to a critical evaluation of the first substantive statutary provision regarding intestate succesion to a Hindu female, viz., Section 15 and Section 16 of the Hindu Succession Act, 1956. In an effort to trace the evolution of the law relating to intestate succession from Shastric law to statutary interventions, an attempt has been made to highlight the underlying social conditions that enabled the incremental reform of Hindu law, with each reform progressively denting its inequitous character. Throughout the paper, the author has sought to adopt a perspective that seeks to examine the premises underlying the staunchly unequal character of the laws covering intestate succession to a Hindu female. The thesis of the paper, broadly, is that the unequal and patriarchal premises of stridhana still lives on in the ghost of Section 15 and Section 16 of the Hindu Succession Act, 1956. It has been an objective of the author to privilege the original texts of Shastric law relating to stridhana— quoting relevant passages from such texts where possible. Due to a paucity of space, the thrust of the paper lies in an evaluation of the Mitakshara principles relating to intestate succession to female Hindus, though Dayabhaga principles, where relevant have also sought to be incorporated. For the same constraint of space, principles of Marumakkattayam and Aliyasantana laws have not been investigated herein.

THE TRADITIONAL CONCEPT OF STRIDHANA UNDER SHASTRIC LAW The issue of stridhana occupied a voluminous chunk in Sanskrit-law books. The term first occurs in the Dharmasutra compiled by Gautama, and literally means a “woman’s property”. Though there are certain aberrations, Mitakshara law and its allied authorities adopt the word in its etymological sense as including all “

kinds of property of which a woman has become the owner, irrespective of the extent of her rights over such property. As Mayne attests, in modern Hindu law, the term stridhana denotes not only the specific kinds of property enumerated in the Smritis, but also other species of property acquired or owned by a woman over which she has either absolute control or control subject to her husband’s dominion. Further, she forms the stock of descent in respect of such property, which accordingly devolves to her own heirs.” The Manusmriti states that a wife, a son, and a slave can have no property, and that the wealth they earn is acquired for him to whom they belong. Yet, this was not construed to mean that women could not own property, but rather, as commentators of the Manusmriti have remarked, that they could not dispose of such property independently—which in itself was not held to be an absolute rule by later commentators. This view is vindicated by Gautama who distinctly admits the right of a woman to hold separate property and provides for its succession. The texts relating to stridhana, except in the matter of succession, are fairly unequivocal in their import. The principal definition, as articulated by Manu states, “What was given before the nuptial fire (adhyagni), what was given on the bridal procession (adhyavahanika), what was given in token of love (dattam pritikarmani), and what was received from a brother, a mother, or a father are to be considered the ‘six-fold’ property of the woman.” As Mayne notes, the words “brother, mother, father” appear to be for purposes of illustration only, as in the next verse he says: “Such property as well as a gift subsequent (anvadheyam) and what was given to her by her affectionate husband shall go to her offspring even if she dies in his lifetime”. Yajnavalkya, while adopting this view of stridhana not necessarily falling into one of these six pigeonholes, adds: “What was given to a woman by the father, mother, her husband or her brother, or received by her at the nuptial fire or presented on her supersession (adhivedanika) and the like (adi), is denominated a woman’s property.” Vijnanesvara explains that the term adi includes “property which she may have acquired by inheritance, purchase, partition, seizure, and finding.” For him, Manu’s pigeonholes are not prescriptive, and as Mayne observes, he is obviously correct, as Manu, Yajnavalkuya, and all the other Smritis enumerate more than six kinds of stridhana. The term stridhana, then, comports with its etymology and is not technical. While Vijnanesvara, in the tradition of Gautama, expanded the conception of adi within stridhana, his intent was not to posit that all stridhana is to be at the absolute disposal of the woman. He expressly mentions the property that is regularly inherited by a maiden as stridhana. However, it cannot be that he intended his definition to include the property inherited by a woman as heir to her husband or to her son. The very rules of

stridhana succession that he lays down postulate that a woman’s property may devolve to a male issue or her husband upon her death. For, in the absence of the daughter and the daughter’s children, her son and son’s sons are to take it and in their default, her husband is deemed to be an heir. Even prior to the passage of the Hindu Succession Act, 1956, it was a settled matter of law under both the Mitakshara and the Dayabhaga schools that property by a woman inhertied from a male is not her absolute property and passes on her death not to her stridhana heirs, but to the heirs of the male from whom she inherited it. The Mitakshara, in treating of a woman’s property, includes all kinds of stridhana lawfully obtained by a woman, and does not make any qualifications with regard to her power of disposal over them. A more textured interpretation, which came to acquire near universal acceptance subsequently, was offered in the Smritichandrika and the Viramitrodaya, where distinctions are made as to the woman’s power to alienate different kinds of stridhana. Two basic distinctions were carved out: firstly, property over which she has absolute control, and secondly, property over which control is fettered by her husband. “

As to the first, a woman has absolute dominion over her saudayika wealth. Saudayika property refers to all

gifts and bequests from relations, either before or after marriage. It includes all gifts and bequests from relations, but not from strangers. Saudayika, of whatever species, is absolutely at a woman’s disposal. She may spend, sell, devise, or give it away at her own pleasure. As first propounded by Katyayana, there exist two fundamental exceptions to this absolute control, viz., wealth which is earned by the mechanical arts, or which is received through affection (pritya) from an other but her kindred, is subject to her husband’s dominion. A further prohibition on the alienation of stridhana is prescribed by the Smritichandrika, which is that immovable property, when given by a husband to his wife, is never at her disposal, though strictly speaking, it is her stridhana.” “

Property included that which she inherited from a male or a female relation, including the husband, or

property received during the time of partition. Her position with respect to such property was in the nature of a limited owner. The limitation was with respect to the power over its disposal and the inability to transmit this estate to her own heirs, but other than that, she enjoyed unimpeded powers sell it, enjoy it, and appropriate the income arising from such property. The prohibition also applies in the case of property that a woman had taken by inheritance from a female for the purpose of inheritance. She does not, then, take such property as an absolute estate, but as a limited estate that reverts to the heirs of the female who was the last full owner.

”

Under Mitakshara law, the succession to stridhana varies according to whether the deceased woman is married or unmarried, as also according to the species of stridhana being inherited. Regarding the stridhana of a maiden—stridhana of a female acquired during maidenhood, there is unanimity with regard to the principles of devolution. Under all Shastric texts iin Mitakshara law, succession to the maiden's stridhana passes in the following order: first to the uterine brother; then to the mother; then the father; and finally, the father’s heirs, or sapindas. The devolution of sulka, or bride-price also follows the same order as that of the stridhana of a maiden. All other forms of stridhana devolve in the following order: firstly, the unmarried daughter; then an indigent married daughter; married daughter who is provided for; daughter’s daughter; daughter’s son; the son; and finally the son’s son. If none of the aforementioned heirs are alive, the property devolves to the husband and the husband’s heirs in favour of her blood relations. From the time of Gautama, a feature of a woman’s was that when it came to the succession to her stridhana, preference was given to daughters over sons. As Vijnanesvara observes, “A woman’s property goes to her daughter because portions of her abound in her female children and the father’s estate goes to his sons because portions of him abound in his male children.” This position of law, to a dispositive extent, bestrode the domain of succession law till the first statutary interventions were made, as is discussed in the following chapter. THE STATUTARY ENLARGEMENT OF A WOMAN’S RIGHT TO PROPERTY: AN INQUIRY INTO THE 1937 AND 1956 ACTS Prior to the codification of Hindu Succession law in the year 1956, the property of a female Hindu devolved in accordance with the unwritten rules of Hindu law. In a majority of cases, women enjoyed only a limited interest in property, and hence the law relating to succession to their property bore little importance. The unique nature of stridhana can be found in the etymology of the word itself, as there is no complementatry practice of describing property owned by males as purushdhan. Material assets normally lay in the possession of men, while women’s rights were restricted largely to gifts made out of love and affection, or in lieu of her maintenance. The enalrgement of a widow’s rights under the 1937 Act, and Succession to a “woman’s estate” Prior to 1937, rather than permitting a woman to claim the share of her husband or father, the ownership was instead vested in males, with her right reduced to one of maintenance only. To convert this liability of maintenance from the responsibility of others to her “own concern”, the Hindu Women’s Right to Property

Act, 1937 was legislated, under which, on the death of the husband, under both the Mitakshara and Dayabhaga schools, on a widow being present, the widow of an intestate decedent was to be given an equal share to the son in respect of the separate property of a husband. The Act also stated that, when a Hindu governed by any school of law other than Dayabhaga or customary law died leaving an interest in joint family property his widow shall have in the coparecenary property the same interest that he had enjoyed. The Act, for the first time, established a woman’s interest in a Mitakshara coparcenary; yet, it offered no guidance in respect of the devolution of her estate after her death. Since her ownership in this estate terminated on her death and she was not a fresh stock of descent, this estate was not heritable among her heirs. As the emphasis was on securing her maintenance, the rule applied to succession to her property was that where she inherited the separate property of her husband, on her death, the property would go to her husband’s heirs, and where she inherited an undivided share in a Mitakshara coparcenary, this share would go to the surviving coparceners under the doctrine of survivorship as if the deceased person on whose death the widow had attained a limited interest had died now. This share of a woman under the Act, then, cannot properly be labelled as stridhana and formed a unique species of ownership. This limited interested created, which was known as “woman’s estate” conferred on the woman a similar right as that of the son to claim partition, though her interest was still limited in nature. The Hindu Succession Act: Bestowal of Full Ownership Rights on Women Section 14 of the present Act converted the limited ownership given by the 1937 Act into absolute ownership. Under the Act, A Hindu female inherits the separate property of her husband as his primary heir, and the quantum and nature of her estate is identical to that of her son. Under the interpretation given to Section 6 in Gurupad v. Hirabai, her presence defeats the application of the doctrine of survivorship over the undivided share and prevents it from going to the surviving coparceners. This is so because the share of a deceased husband, if there is a class-I female heir is present, is ascertained by means of a notional partition, part of which she inherits as his class-I heir, taking it as an absolute owner. There were two principal objectives of the act: the first was to remove the disability imposed under Shastric law on a woman to hold certain kinds of property only as a limited owner. Section 14(1) removed it expressly, enabling her to acquire property as a full owner, which included the power to alienate it at her pleasure. Secondly, it also converted the then existing limited ownership into an absolute ownership. Now, instead of her husband’s heirs taking her non-stridhan property, the property would be transmitted through her own

heirs, thus abolishing the concept of revisioners. In doing so, the Act sounded the death knell for the entire distinction between stridhan and non-stridhan, as well as between saudayika and non-saudayika property. Succession to her heirs, which was previously restricted only to stridhana property was now amended to include all property owned by her, with a new mode of devolution prescribed in Section 15 of the Act. AN ANALYSIS OF INTESTATE SUCCESSION TO A FEMALE UNDER SECTION 15 OF THE HINDU SUCCESSION ACT FROM A GENDER PERSPECTIVE “

Section 15 of the Hindu Succession Act is the first statutary enactment dealing with succession to the property

of a Hindu female intestate. The initial efforts of the legislateure, viz., the Hindu Law of Inheritance (Amendment) Act, 1929, and the Hindu Women’s Right to Property Act, 1937, were geared predominantly toward securing her maintenance and property rights, rather than providing a scheme of succession to her property, as property ownership in absolute capacity was a rarity for a woman, and her economic and dependence the norm.” The enactment of Section 15, as has been noted in the previous chapter, stemmed from the fact that Section 14 of the Act vested, for the first time, absolute ownership on the female with respect to all her property. The Section applies to all property that a woman holds as an absolute owner, irrespective of the mode of its acquisition, including immovable properties. This marked a major departure from Shastric law, where a woman could not hold immovable property absolutely. It would also include an undivided interest in a Mitakshara coparcenary in which a female was a coparcener. However, the section is not applicable to any property that is held by a Hindu woman as a limited owner either under Section 14(2) of the Act, or even otherwise. “

The Act provides for three different sets of heirs depending upon the source of acquisition of the property of a

female that is available for the succession. Broadly, her property is divided into three categories: property that a female Hindu has inherited from her parents; property that a female Hindu has inherited from her husband or her father-in-law; and any other property (“general property”). “

”

The term general property refers to the property of a woman other than that which was inherited by her from

her parents, husband or father-in-law. The term, then, will include the property that she might have inherited from these relations through any other device, such as a gift, a Will or a settlement, and the like. It will also cover properties that were her self-acquisitions or were received from any other source whatsoever.”

Under the original Hindu Succession Bill (Bill No. 13) of 1954, provided for six separate categories of heirs in respect of general property. In the original draft, the husband’s turn to inherit under it came after the children and the grandchildren of the intestate and her parents were preferred to the heirs of the husband. As a result of the many concessions to orthodox forces opposing the dilution of Shastric law, this was finally amended in favour of the current provision—giving an equivalent share as the children to the husband and prioritizing the husband’s heirs over her parents. This was largely as a reflection of the antediluvian, patriarchal objective of preserving property in the family of a male Hindu. Rules for devolution of property under Section 15 are further elaborated in Section 16—the first proposition lays down the rule that among the heirs specified in 15(1), those in one entry shall be preferred to those in any succeeding entry, and that such heirs shall have receive equivalent shares, simultaneously. The terms “son” and “daughter” would include a woman’s biological or adopted, legitimate or even illegitimate children. Rule 2, Section 16 states that where a son or a daughter predeceased the mother, leaving behind a child, his/her branch will be allotted a share. However, in order to be eligible for inheritance, such grandchildren must be the legitimate offsprings of their parents, and born out of a valid marriage between them. The term “husband” in Section 15 refers to the spouse of a valid marriage, which had come to an end with the death of the intestate. It does not, though, include a divorced husband. It is interesting to note that though Section 8 provides that a widow of a predeceased son are class-I heirs, these relations do not inherit the property of a female intestate, but instead may inherit under Clause (b) of sub-section (1), as heirs to the husband. It is important to note that the rules of inheritance across provisions of the Hindu Succession Act are proclaimed to follow the principle of propinquity, or nearness in relationship and love and affection, and are no longer premised on the need of religious efficacy or spiritual benefit of the intestate. Given this, it is absurd to suggest, as is done by Section 15(1), that the entire group of heirs of the husband are “near” in relation to a childless widow, when compared to her parents and brothers and sisters. A married woman inherits only four relations of her husband, viz., the husband’s father, the paternal grandfather, his brother, and the step-son of the woman (from whom she inherits by virtue of being his father’s widow). She inherits from no other relation of the husband, yet if she dies, the entire group of “heirs of husband” are deemed eligible to succeed to her property, that too in preference to her own parents. The provision also seems to be out of kilter with practical realities. A childless widow may not, in a majority of cases, find her deceased husband’s residence a fit place to live and decide to reside in her natal home. The

inequity of these provisions is highlighted by the fact that none of the other succession laws in the country prvilege relations by marriage over the blood relatives of a woman. Section 15(2) provides that the property inherited by a female Hindu from her father or mother shall devolve not under sub-section (1), but upon the heirs of her father. From a feminist perspective, it is hard to not notice the gendered nature of this section, for if the legislature wanted to conserve the property within the family from where it had come, the appropriate provision should have been that where property is inherited from the mother, it should devolve upon the heirs of the mother. Section 15(2)(b) provides that where a woman inherits the property of her husband or father-in-law and dies issueless, the property reverts to her husband’s heirs from whom or from whose father, she had inherited the property. Under a recent judgment of the Gauhati High Court in Dhanistha Kalita v. Ramakanta Kalita, it was held that son from a previous marriage did not qualify as a son within the meaning of Section 15(2), and was excluded from the inheritance of property received from the second husband. This, in the author’s mind, seems to be a subversion of the literal import of the section, which does not refer to any such qualification. It is worthwhile to note that Hindu succession law is the only succession law in the country that provides for separate schemes of succession for male and female intestates. The reason for not providing a uniform scheme is linked closely to the emphasis laid by Hindu law on the the conservation and protection of the property in the family of a male Hindu. A closer examination of Section 15 and Section 16 compels one to accept that the underlying, highly patriarchal premises of stridhana is still alive. Section 15(2), which stipulates the reversion of a woman’s estate in case of property inherited from her parents, or husband, is reflective of the principle that a woman has only limited estate over non-stridhana property, where she was barred from controlling the property that she inherited. Moreveor, as has been noted, despite the fact that the Act seeks to follow the principle of nearness, her husband’s heirs are preferred over her own blood relations. The Act also makes a departure from the Shastric principle of preferring daughters over sons, and places them on an equal footing with respect to the mother’s intestate property. The Act was enacted with the underlying backdrop of a patriarchal setup, where a woman is having no permanent family of her own. The privileging of a husband’s heirs is in part a function of the Shastric obsession with preserving the property of a male Hindu within his family. Given that the organization of Hindu society has come a long way from the time where preservation of property within the patrilineal house was a premium, these provisions are in dire need of reform—being entirely repugnant to the constitutional goal of equality. Such a proposal was sought to be

incorporated in the 2005 Amendment, which instilled a modicum of gender equality by conferring coparcenary rights on daughters, but for a host of political reasons, Parliament was wont to demure from reforming the provisions relating to intestate succession to a female Hindu.

CONCLUSION The paper has sought to trace the evolution of the principles regulating intestate succession to a Hindu female from its inception in Shastric law to the enactment of Section 15 and Section 16 of the Hindu Succession Act, 1956. The first section of this paper sought to analyze the uncodified principles regarding stridhana that remained unimpeded till the 1956 Act. The second section focused on the early statutary interventions in the field, as well as the relevance of Section 14 of the Hindu Succession Act, which in bestowing an absolute interest in property to women, brought the devolution of intestate succession to such property in sharp focus. Having examined these underlying principles, the author has tried to critically examine the rules relating to succession laid down in Section 15 and Section 16 of the 1956 Act. It can be no one’s contention that the laws relating to intestate succession to a Hindu female still remain largely patriarchal in outlook. In a country whose constitution envisages equality for all, the subordinate status accorded to women under succession law is surely an unconscionable blot. To meet the goal of building an equal society, it is essential that a legal framework giving women equal rights in matter of succession is present. Not only do the current provisions engender inconsistent principles of law in certain areas, but are also serious impediments to gender equality. It can only be hoped that in the next phase of incremental reform to succession laws, Section 15 and Section 16 do not remain unamended.

BIBLIOGRAPHY Books

•

Dr. Buhler, Max Mueller’s Sacred Books of the East, Vol. II.

•

Ganganath Jha, Hindu Law in its Sources, Vol. II, (1933).

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Krishnaswamy Iyer, Smritichandrika, 445, (Madras, 1867).

•

Mayne’s Treatise on Hindu Law and Usage, (ed. S. Srinivasa Iyengar, 10th Edition, 1938).

•

Poonam Pradhan Saxena, Family Law Lectures, (3rd Edition, 2011).

•

PV Kane, History of Dharmasastram, Vol. I (1930).

•

Rameshwar Dyal Aggarwal, Hindu Law, (ed. A.N Sen, 2002).

•

SS Setlur, Subodhini and Balambhatti on Mitakshara (1912).

Cases •

Bachiraju v. Venkatapadu, (1865) 2 MHC, 402.

•

Dhanistha Kalita v. Ramakanta Kalita, AIR 2003 Gau 92.

•

Gangadaraiya v. Parameswaramma, (1869) 5 Mad HC, 111.

•

Gurbachan Singh v. Khichar Singh, AIR 1971 P&H 240.

•

Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, 1978 AIR 1239.

•

Shahaji Kisan Asme v. Sitaram Kondi Asme, AIR 2010 Bom 24.

•

Sheo Pertab v. Allahabad Bank, (1903) 25, 30 LA, 209.

•

Somaiah v. Rattamma, AIR 1959 AP 244.

Statutes •

Hindu Law of Inheritance (Amendment) Act, 1929

•

Hindu Succession Act, 1956.

•

Hindu Women’s Right to Property Act, 1937.