The Indian Succession Act of 1925 was promulgated to adequately address the undecided position of Indian Christians as Hindus and Muslims came under the ambit of their personal laws. The Indian Succession Act of 1925 brought under its ambit the Indian Succession Act of 1865, the Hindu Wills Act, the Probate and Administration Act, as well as Parsi Intestate Succession Act and provided a unified legislative framework which allowed for property to devolve either through testamentary or intestate succession.

While no law sets out to be discriminatory, the Indian Succession Act unknowingly reinforces patriarchal socio-economic inequalities, a rigid understanding of the gender binary as well heteronormative ideals of marriage and family. Section 33 of the ISA deals with the rights of widows which stipulates that 1/3rd of the property belongs to the widow and 2/3rds of the property goes to the lineal descendants, and when there are no lineal descendants, half goes to the widow and the other half to the parents.

In case of an only surviving child, the devolution of property between the widow and the child of the deceased would be disproportionate as the child would get the majority share which is 2/3rd of the property while the mother of said child would only be left with 1/3rd of the property. Men as the surviving spouse do not have to undergo such disproportionate devolution of assets.

As Supreme Court lawyer Sunil Fernandes highlights, [1] the Indian Christian widow's right is not exclusive, and the widow of the intestate only gets the whole property only if the intestate has none left who are kindred to him.[2] Section 33A of the ISA provides that if the net value of the property does not exceed Rs 5,000/- the whole of the property goes to the widow of the deceased but where the net value exceeds the sum of Rs 5,000/- , she is entitled to Rs 5,000/- with interest at the rate of Rs 4% per annum from the date of death of husband until payment.

However, as clause 5 (b) of section 33A reveals, this provision is not applicable in the case of Indian Christians depriving Indian Christian widows of the benefit of this provision which violates the clause of equality as there is no rational nexus for such discrimination between Parsi widows and Christian widows. Furthermore, Section 42 of the ISA specifies that in the absence of lineal descendants of the male intestate, the property devolves only to the father of the intestate after the widow, and not the intestate's mother.

According to Section 44 of the ISA, The mother of the male intestate only gets a share in his property if her husband is deceased and even then, gets an equal share as the brother and sisters of the deceased. In this case, the position of the mother of the deceased is equated to that of the siblings of the deceased which is not the case for the father of a deceased male . In this way, the gender hierarchy is reproduced.

As Poonam Pradhan Saxena puts it:
To exclude the mother in the presence of the father ignores the role that the mother plays in the upbringing and settlement of the child from the beginning to the attainment of maturity.[3]

Furthermore, Section 44's insistence on the property of the deceased being transferred to the brothers or sisters of the deceased equally, reinforces rigid characterizations of gender into sanitized categories of male or female and disqualifies siblings who are undergoing transition, identify as nonbinary or are intersex. This statutory provision unwillingly is biologically essentialist as it deprives transgender people of their fundamental right to identify as man, woman or neither and identify as their birth assigned gender in order to become a beneficiary of the order of succession.

The Supreme Court in National Legal Service Authority v. Union of India & Others,[4] gave transgenders the right to identify as the third gender granting them constitutional protection and cementing their right to self-determination, education, property, employment, dignity, and equal status.[5] Therefore, there is an urgent requirement for the law to become cognizant of the legal rights of people of the third gender or transgendered individuals.

The legal developments post Navtej Singh Johar v. Union of India,[6] and the right to live in relationships being accorded to non-heterosexual couples and the succession rights that emanate from such a cohabitate relationship demand that the order of intestate succession widen its ambit to include non-heterosexual relationships and put them at par with heterosexual relationships.

Additionally, the ISA has no limit on the testamentary disposition of property allowing for women to be completely written out of the wills of parental figures as is customary in our patriarchal society wherein the continuation of the family name through the male heir bequeaths them with the entirety of the family property.

This will also allow for gay, lesbian, transgender, non-binary, and intersex individuals to be written out of wills and the entire property being transferred to the male heir or heteronormatively compliant heir.

The following amendments to the act will help to remove the discriminatory infirmities from the ISA:

1. Section 33 of the ISA be amended to limit the category of kindred kin of the deceased male and the position of the surviving widow be elevated to be at par with the position of a surviving husband. Furthermore, the special provision under Section 33A should be made applicable to Christian widows as well. Additionally, as was suggested in the 110th Law Commission report, the amount should be increased to Rs 35,000/-, and the rate of interest be increased from 4% to 9% on account of the rising inflation rate and the depreciating value of the rupee.[7]
2. As was highlighted in the 247th Law Commission Report, the status of the mother and father of the deceased male intestate should be brought at par with each other under Section 42 and 43 of the ISA which would have the effect of both parents inheriting their shares equally at the same time as opposed to just the father, in the absence of lineal descendants.[8]
    
3. Furthermore, to remove the biologically essentialist element of Section 44 of the ISA, the word brother and sister should be changed to include the word sibling/siblings which would bypass the need for transgender to identify with their gender assigned at birth.[9] A similar recommendation was made by the Delhi Minorities Commission for inclusion of the third gender to section 44.
    
4. Some reports suggest that the Indian Succession Act would benefit from implementing a testamentary limit like the one under Muslim personal law wherein testamentary succession is allowed only for 1/3rd of the total property of the deceased. [10] This would have the effect of safeguarding women as well as non-heterosexual, non-cisgender, non-binary, intersex individuals from being completely excluded from the wills of parental figures.
    
5. Another line of amendment would require the recognition of non-heterosexual relationships in the colour of marriage to be placed at par with heterosexual marital unions and according the same succession rights to such couples.

End-Notes:

1. Property Rights in India: Women Are Not Getting Their Due; Here Is How The Financial Express. Retrieved 5 June 2021, from https://www.financialexpress.com/opinion/property-rights-in-india-women-are-not-getting-their-due-here-is-how/906827
2. Ibid.
3. Kusum K and Saxena PP, Family Law Lectures (LexisNexis Butterworths 2008).
4. (2014) 5 SCC 438.
5. Ibid.
6. AIR (2018) SC 4321.
7. 110th Report of Law Commission of India on the Indian Succession Act 1925.
8. 247th Report of Law Commission of India on the Indian Succession Act 1925.
9. Ibid.
10. Towards Equality: Report of the Committee on the Status of Women in India, Ministry of Education & Social Welfare Department of Social Welfare, Government of India. Retrieved 5 June, 2021, from https://www.worldcat.org/title/towards-equality-report/oclc/1801384