The Hindu Succession Act 1956 codified laws for intestate succession among Hindus using principles of Mitakshara and Dayabhaga schools. The act was critiqued due to its gender bias-   women could not inherit ancestral property by birth as coparceners. Under Section 23, married daughters are denied the right to residence from parental home unless widowed, deserted, or separated.

This reaffirms that daughters will be taken back only if the husband leaves and not if she leaves her husband, which shows the blatant disregard for the autonomy of the daughter in terms of her marriage. Female heirs are disentitled to ask for partition in a Joint Family unless the men of the household initiate their partition first.  The woman is given a right but that is also ultimately contingent on men.

A bare perusal of Indian case laws can attest to this discrimination faced by women over time. By way of section 15 HSA 1956, a differentiation depending upon the source of property and gender has been carved out. The archaic thinking of legislature while drafting has clearly demonstrated a discriminatory picture.

In Om Prakash v. Radha Charan, the judges stated that sentiments and sympathy cannot be included as a guiding principle to determine the interpretation of the law.[1] This precedent is detrimental, as succession laws are not mainly about people who are entitled to it, but also people who are disentitled to it. The current law is an epitome of gender inequity. The blood relations of a Hindu woman are given an inferior position in contrast to her husband’s heirs antithesis to other laws.

In Jayalakshmi Ammal vs Kaliaperumal, the court observed how the stereotyped notion of infertile woman, leads to the destruction of homes causing disharmony between couples.[2] Another facet of prejudice can be made evident from the social perversion of the ‘Dowry system’ prevailing in the country.

In the Pratibha Rani case, the court held that a simple entrustment of Stridhan without creating any rights in the husband by putting the articles in his possession does not entitle him to use the same to the prejudice of the wife without her consent.[3]Vakil vs. Bansi was a watershed judgment in favor of preserving constitutional principles of article 15.[4] 

The court upheld the fact that discrimination was based solely on the basis of gender in Section 15(1) of HSA,1956, as the Parliament did not envisage the succession scheme as one being restricted to that of women’s matrimonial home. Therefore, the section was declared as ultra vires the scheme of the Constitution.
 
The Hindu Succession Act was amended in 2005, after a significant deal of barbarity and atrocity, and prima facie appeared to be an alleviation as it gave daughters of coparceners in a Joint Hindu family the birthright of being a coparcener, same as the sons, entitling them to rights in the coparcenary property, subjected to same liabilities apropos of the said property; but upon closer inspection, was anything but that. Several issues were raised regarding this amendment, firstly whether the rights granted to a daughter would have a retrospective effect? This issue was accosted by the court in Phulavati case.

The Supreme Court said, the amendment clearly provides that the right conferred on a ‘daughter of a coparcener’ is “on and from the commencement of the Act of 2005.” There is no scope for a different interpretation and the amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. Section 6 of the HSA applies only when both coparcener and his daughter are alive on the date of commencement of Amendment Act irrespective of the date of birth of daughter and coparcener who died thereafter.[5]

Whereas in the case of  Danamma v. Amar, the SC applied a disparate principle in deciding whether a daughter had a right in the coparcenary if his father passed away before 2005.[6] The court stated that even though the father, in this case, had passed away in 2001, and initial proceedings started in 2002, the actual partition did not take place until 2007, hence the daughters were entitled to a share in the coparcenary. But it did not overrule the Phulavati judgment.[7]
 
Given the male chauvinism and predilection for sons and notions of lineage, discrimination against daughters in inheritance through wills is sure to remain. In many instances, the provisions of the will would favor the sons of the family. Perhaps, there is a need for a reform that doesn’t have loopholes. There are instances when daughters are coerced to surrender their share if a father dies intestate. They are threatened to be cut off from the family if they claim their share and, in most cases, daughters capitulate to these threats in fear of being isolated by love and support of their family.[8] The amendment by itself does not do justice to Hindu women. In terms of equity, the law raises some major concerns. It is a political agenda, not a social reform.
 
The most effective solution to bring equality would be to treat family law the same as we do any other law.[9] This is where the need for a Uniform Civil Code (UCC) arises. The Indian Constitution prides itself on the values of equality and non-discrimination.

However, the reality is that society is patriarchal, and a primary factor in that, are the religious personal codes. Dr. Ambedkar was staunchly in favor of UCC but the questioning and regulating of traditions that governed the personal life of Hindus evoked a strong opposition[10]. Religion often treats women as inferior and these traditions are codified as law in the religious personal code. Socially, religion already disadvantages women but its legalization furthers the impact. Article 44 of DPSP of the Indian constitution directs the state to implement UCC throughout the territory of India.[11]

Critiques of UCC state that modifications within personal codes can be a solution but as we see in the case of the 2005 HSA amendment, these marginal improvements in the condition of women are always a bargain with religion. Therefore, we believe true empowerment can come only with one radical swift move of the Judiciary.

In a country where religion is pervasive, women know they can't seek justice in their faith, then why do we close the door of law for them? Legislations alone cannot bring gender equality in a country where misogyny has been internalized and institutionalized in the societal psyche. UCC is a necessary but not sufficient step in the battle for gender justice. To conclude, women don't have a problem speaking up, they have a problem being heard.

End-Notes:

1. (2009)15 SCC 66
2. AIR 2014 Mad 185
3. (1985) 2 SCC 370
4. MANU/MH/1869/2012
5. Prakash and Ors. vs. Phulavati and Ors. (2016) 2 SCC 36
6. Danamma and Ors. vs. Amar and Ors. (2015) 12 SCC 301
7. However, it made for a chink in the armour of law held. Using this judgement, if any suit of partition filed by the son/s was pending, even if it was filed before 2005- the daughter would be entitled to a share, notwithstanding the date of her father’s death. This judgement complicated the issue, by somewhat contradicting the Phulavati judgement.
8. Agrawal, R. (n.d.). Whether Amendments Made To The Hindu Succession Act Are Achieving Gender Equality. Retrieved April 5, 2019, from http://www.legalserviceindia.com/articles/gehsa.htm
9. We have a uniform set of laws like Indian Penal Code for all fields of law except for family law. Laws based on succession and marriage are different for different communities in India- which make them inherently unequal.
10. Jaffrelot, C. (2003, August 13). Ambedkar And The Uniform Civil Code. Retrieved April 6, 2019, from https://www.outlookindia.com/website/story/ambedkar-and-the-uniform-civil-code/221068?utm_source=amp&utm_medium=wa&utm_campaign=amp
11. Article 44, The Constitution of India Uniform civil code for the citizens.- The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.