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Costitutional Validity of Various Provisions of Hindu Succession Act

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Submitted By prakritiagarwal
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ARE PERSONAL LAWS REALLY LAWS? _______________________________________________
TYPES OF SUCCESSION___________________________________________________________
WHO IS A HINDU?_______________________________________________________________
BEFORE HINDU SUCCESSION ACT__________________________________________________
INTRODCUTION TO HINDU SUCCESSION ACT, 1956____________________________________
2005 AMENDMENT………………………………………………………………………………………………………………….
SECTION 6, HSA…………………………………………………………………………………………………………………………..
SECTION 7, HSA…………………………………………………………………………………………………………………………………
SECTION 14, HSA……………………………………………………………………………………………………………………………..
SECTION 15 &16, HSA……………………………………………………………………………………………………………………..

Through this paper, I want to analyse the constitutional validity of various provisions of the Hindu Succession act, 1956 , which is a personal law applicable to Hindu citizens of India. I have attempted to briefly explain how the flaws in the said act pose a constitutional challenge and have also tried arriving at a solution for the same.
Personal laws are laws that are governed by religious beliefs of India, which are applicable to citizens following that particular religion. The Supreme Court has agreed that these personal laws come within the term of “laws”
In the case of Narsingh Pratap Deo v. State of Orissa (AIR 1964 SC 1793) the Supreme Court stated that "though theorists may not find it easy to define a law" "the main features and characteristics of law are well recognized" and that "stated broadly, a law generally is a body of rules which have been laid down for determining legal rights and legal obligations which are recognized by courts." Personal laws possess the above mentioned characteristics; hence they should come under the definition of the term “law”
In the case of Sant Ram v. Labh Singh (AIR 1965 SC 314) a Constitutional Bench of this Court observed: "the reasons under which a statute is declared void also applies to custom, and is affected by part III of the constitution. Since these customs have the force of law, they fall under the definition of “laws in force”
"Personal laws" include both codified and uncodified laws. To the extent that personal laws include codified laws there cannot be any dispute that such laws are "laws" under Articles 13 and 372. Whether before or after the Constitution, such laws have been enacted by the then existing sovereign and they continue to be in force even on the change of the sovereign unless they are repealed or treated as void under Articles 13 of the Constitution. (
As per article 13 and 372 of the Constitution of India, if there is any law which is found to be in contravention of part III of the Constitution, then such law will be struck down. Based on this principle and a catena of judgments, it can be ideally inferred that when a personal law contravenes part III of the constitution, that law will be struck down. However, the Supreme court has held differently in many judgments.
In Krishna Singh v Mathura Ahir, the Supreme court clearly stated that the part III of the constitution did not affect personal laws, as they were different from general laws and derived from ancient customs. The court held as follows:
In our opinion, the learned judge failed to appreciate that part III of the Constitution does not touch upon the personal laws of the parties. In applying the personal laws of the parties, he (the High Court judge) could not introduce his own concepts of modern times but should have enforced the law as derived from recognised and authoritative sources of Hindu laws, i.e. Smritis and commentaries referred to, as interpreted in the judgments of various High Courts, except where such law is altered by any usage or custom or abrogated by statute
In Masilamani Mudaiar v Idol of Sri Swaminathaswami Thirukoil, the Supreme court held that personal laws, when they contravene the constitution, should be held void to the extent of that contravention. The three judge bench stated:
The basic structure permeates equality of status and opportunity. The personal laws conferring inferior status on women are anathema to equality. Personal laws are derived not from the Constitution but from the religious scriptures. The laws thus derived must be consistent with the Constitution lest they become void under Article 13 if they violate fundamental rights.
Hence, it is unclear on whether courts can interfere on whether or not courts can interfere in matters related to the constitutionality of provisions of personal laws.
Separate property of an individual devolves in two ways: INTESTATE SUCCESSION:
If a person dies without a will, the probate court must manage his estate through the applicable state intestate succession statute. The assets of the estate are passed on to the decedent’s heirs. The only people who are heirs are those who are qualified to receive based on the relevant state'sdefinition. (
Testamentary succession refers to succession resulting from a legally executed testament. Testamentary succession is also known as the right of inheritance. A testamentary succession s fixed and determined at the moment of a decedants death. (­succession/)
In india, succession is governed according to the religion the decadent professes and is guided by the personal laws applicable to that religion. Hindu’s ofcourse follow the hindu succession act, 1956.
Though there is no legal definition of who a hindu is, section 2(1)(a) of the Hindu Succession Act,1956 states who the Hindu Succession Act applies to. However, the courts have, on various occasions tried to interpret who a Hindu is.
In the case of “Bramchari Sidheshwar Bhai v State of West Bengal 1995 AIR 2089” the SC laid down the criteria for Hinduism. The court relied on its earlier decisions in enlisting the features of the Hindi religion as follows:
(i) Acceptance of the Vedas with reverence as the highest authority in religious and philosophic matter and acceptance with reverence of vedas by Hindu thinkers and philosophers as the sole foundation of Hindu philosophy.
(ii) Spirit of tolerance and willingness to understand and appreciate the opponent's point of view based on the realisation that truth was many-sided.
(iii) Acceptance of great world rhythm, vast period of creation, maintenance and dissolution follow each other in endless succession, by all six systems of Hindu philosophy .
(iv) Acceptance by all systems of Hindu philosophy the belief in rebirth and pre-existence .
(v) Recognition of the fact that the means or ways to salvation are many .
(vi) Realisation of the truth that Gods to be worshipped may be large, yet there being Hindus who do not believe in the worshipping of idols .
(vii) Unlike other religions or religious creeds Hindu religion not being tied-down to any definite set of philosophic concepts, as such.
Bal Gangadhar Tilak defined hindus as “Acceptance of Vedas with reverence; recognition of the fact that the means or ways to salvation are diverse; and realization of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of the Hindu religion.” The above definition has also been accepted by some of the Indian courts. (
Clarifying the position of the status of hindus with regards to conversion and reconversion, the SC in a recent judgment(K.P Manu v Chairman, Scrutiny committee for verification of community certificate) has held that a person who was born as a hindu and had once converted to another religion, reconverts to Hinduism will be treated as a hindu and avail all benefits available to his caste.
The court laid down the main parameters for deciding whether or not a person who has converted from and reconverted to Hinduism will be eligible to get the benefits a hindu dalit is entitled to:
• First, there must be "absolutely clear-cut proof that he belongs to the caste that has been recognised by the Constitution (Scheduled Castes) Order, 1950";
• Second, it has to be established that there has been "re-conversion to the original religion to which the (person's) parents and earlier generations had belonged"
• And third, there has to be "evidence establishing the acceptance by the community".

Prior to hindu succession act, hindus were goverened by the various shastric and custom laws that varied in different regions. ( Sometimes, these laws would be different within one region also, based on the different castes. Traditional Hindu inheritance laws evolved from the ancient texts of Dharmashastras and the various commentaries and legal treatises on them. In particular, the Mitakshara and the Dayabhaga legal doctrines, dated around the twelfth century AD govern the inheritance practices among the Hindus. ( Both schools of medieval Hindu law – the Dayabhaga and the Mitakshara are based on the texts of the learned sage Manu. They are merely different interpretations of the same treatise. But it must be noted that the approach adopted by both schools is radically different.
In most of northern and parts of western India Mitakshara law is prevalent. Under the Mitakshara law, on birth, the son acquires a right and interest in the family property. According to this school, a son, grandson and a great grandson constitute a class of coparceners, based on birth in the family. No female is a member of the coparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth. The Mitakshara law also recognizes inheritance by succession but only to the property separately owned by an individual male or female. Females are included as heirs to this kind of property by Mitakshara law.( (
The difference between Mitakshara and Dayabhaga is basically the interpretation of who is a sapinda. Both schools concur on the principle that property should be inherited by the sapindas, but the definition of the word itself given by the schools is different. According to Dayabhaga school, sapinda is any relative who can offer ‘pindas’, the balls of rice offered during the funeral of the deceased. This would include cognates, the women in the family as well, allowing them to freely inherit property.(
The mitakshara law also recognises the rights of succession of separately owned property under which even females were legal heirs of the property. However, the Dayabhaga school of law had only one mode of succession irrespective of the kind of property.
The Hindu Succession Act, 1956, was passed by the ‘Parliament of India’. The preamble of the Act states that it was enacted to to amend and codify the law relating to intestate succession among Hindus. The Act tries to ensure equality inheritance rights between sons and daughters. It consolidates the mitakshara and dayabhaga schools of Hindu laws. (
The Act lays down a uniform and comprehensive system of inheritance and applies, interalia, to persons governed by Mitakshara and Dayabhaga Schools as also to those in certain parts of southern India who were previously governed by the Murumakkattayam, Aliyasantana and Nambudri Systems.(
The HSA essentially codified hindu personal laws because before this act came into force, they were governed by shastric and customary laws which varied from region to region. Now, the HSA is a principal act applicable to all Hindu’s in India.
In introduction to 59th Law Commission of India Report, former Chief Justice of India Mr. P. B. Gajendragadkar observed:
"It may sound platitudinous but is nevertheless true that revision of law is must" in a dynamic society like ours, which is engaged on the adventure of creating a new social order founded on faith in the value system of socio - economic justice enshrined in our Constitution. With the changing times, notions of fairness and justice assume newer and wider dimensions and customs and beliefs of the people change. These in turn demand changes in the structure of law; every progressive must make a rational effort to meet these demands. Between the letter of the law and the prevailing customs and the dictates of the current value system accepted by the community, there should not be an unduly long gap. (
The Hindu Succession Act, 1956, originally didn't give daughters equal rights to ancestral property. This disparity was removed by an amendment that came into force on September 9, 2005. (
As discussed above, the Hindu succession act, 1956 was amended in 2005 by the Hindu succession (amendment) act, 2005. This very act was challenged in the Madras High Court, where the petitioner prayed to declare the act unconstitutional in “Mr. Dr. G. Krishnamurthy v Union of India”
The petitioner submitted that by the amendment made to Section 6, the entire concept of Shastric and Customary law governing the Hindu Law is sought to be overturned in one stroke. Upon removal of Section 23, it is likely that a Hindu woman after remarriage would continue in the dwelling house wholly occupied by the members of a family of a Hindu intestate. Coming to Section 24, the petitioner submitted that by providing rights to the widows even after their remarriage to inherit the property of an intestate, the concept of the very fabric of Hindu Joint Family would be destroyed. The petitioner further submitted that there is a discrepancy in Class-II of the Schedule as certain legal heirs of a male member have not been included.
The court held that there was no sufficient ground for declaring the act unconstitutional as argued by the respondent, and the enactment has been made to remove the discrimination against women. The amendment was therefore to ensure the protection to women under articles 14, 15 and 16 of the constitution.
Coming to Section 23 of the Act, it has been omitted to remove the disability on female heirs. The said decision was made keeping the larger public purpose in mind. Since Section 23 of the Act is only a disabling provision it should be removed.
Section 24 of the Act once again created a statutory discrimination against widows remarrying qua inheritance. This was rightly removed as a woman cannot be non-suited to get a property on her remarriage. Class-I of the Schedule is only consequent upon the amendment made to Section 6. It only qualifies the heirs, who are entitled to a property as in Class-I in consonance with Section 6. Therefore, the challenge to the said inclusion made to Class-I of schedule is also rejected.
Whenever a statute is enacted promoting women’s rights, it is met with stiff resistance from the citizens of the country owing to the male-centric society. This case is one such instance. The Madras High Court has very strikingly, in a rare occurrence overcome this obstacle.
The Madras High Court has rightly observed that each clause in the amending act has been bought to bring about the protection and promotion of womens rights, and has infact been bought about to destroy the discrimination present in the principal act.
Further, even if the act was worded in a manner prejudicial to men, that alone would not render the act unconstitutional as article __________ allows the state to make provisions for the benefit of women.
Prior to the enactment of the Hindu Succession (Amendment) Act, 2005 four states had amended the Hindu Succession Act and had introduced unmarried daughters as coparceners, because of which a conflict emerged between the principal act and the acts of the state governments. (
One such example was the case of “R. Kantha V Union Of India”: In this case, the petitioner filed a suit for partition and separate possession of the joint Hindu family. Having regard to the Proviso to Section 6(1)(c) of the Hindu Succession Amendment Act, the trial court dismissed the suit as not maintainable. It was at that stage that the writ petition is filed questioning the constitutional validity of the above Proviso the petitioners contended that the Hindu Succession Amendment Act, 2005 was bought about to bring about constitutional equality, and no gender discrimination on the basis of sex should be allowed.
It is contended that the Proviso, lays down notwithstanding the amendment, any disposition or alienation which had taken place before the 20th December 2004, would not be affected or invalidated. The Proviso discriminates between a son and a daughter, for it is open to a son to question alienations and dispositions prior to the 20th December 2004, whereas a restriction is placed on the daughter's right to question the same. the court held that if the objective of the provisio was to prevent the hardships of litigation, the restriction should be placed on the sons also, and not only on the daughters.
The possibility of lapse of time or other intervening circumstances, being such that the determination of the share of a daughter being rendered obscure or beyond redemption on account of any alienation or disposition prior to 20.12.2004 - is necessarily a question of fact depending on the circumstances of every case, and no cut-off date should be provided.
Hence, the provisio to Section 6(1)(c) of Act 39 of 2005 is irrational and has no nexus with the object of the Act, infact on the other hand would nullify its declared object, hence is violative of articles 14 and 16 of the constitution.
The object of the amending act of 2005 was to remove the disparities between men and women in terms of inheritance rights and remove the discrimination against women, hence placing men and women on equal footing.
By placing the provisio in question, the legislature has indirectly done what they wanted to eradicate initially, while also discriminating against women, curbing their rights which have been given to women.
Article 14 allows for discrimination on the basis of reasonable classification, if such classification has a close and direct nexus to the object of the act. As the court has rightly found that the fact that a daughter cannot reopen a partition made prior to the passing of the act, but a son can has no rational nexus to the object of the act and hence is attacked by article 14 of the constitution.
The High Court of Kerala was faced with the question of dealing with the constitutional validity of s. 7 of HSA in the case of “Kunjunni Moopil Nayyar V Union Of India”
The question in this appeal was the constitutional validity of S. 7 (3) of the Hindu Succession act, 1956. The petitioner stated that the said section was unconstitutional.The only aspect of discrimination was that while the members of the tarwad are given shares along with the sthanee in the sthanam properties, the sthanee is not given a share along with the members of the tarwad in the tarwad properties. The court relied on The relationship between the tarwad and the sthanee which had been considered by the Supreme Court in Kochunni v. States of madras Kerala where it was stated that "it is true that whatever may be the origin of the sthanam, ordinarily the senior-most member of a tarwad succeeds to that position; but once he succeeds, he ceases to have any proprietary interest in the tarwad.
The court said that the right described above was just a spes succession and that the tarwad may supply future sthanees. The HSA is prospective in nature. All that it does is to prescribe a line of heirs to a Hindu and avoid other spes-successionis which may arise. Likewise, S. 7 (3) of the Act does away with the spes successions of the heir-apparent to a sthanam. It enacts that on the death of a sthanee holding the sthanam at the commencement of the Act, the sthanam properties held by him shall devolve upon the members of the family to which the sthanee belonged, and the heirs of the sthanee. As the Act is not to affect vested rights, the tarwad properties vested in the tarwad are not affected by the section. No discrimination is involved in not providing for the sthanee a share in the properties of the tarwad and in allowing the members of the tarwad to share in the sthanam properties.
It follows, section 7(3) of HSA was not unconstitutional and hence not void.
Amongst other sections, section 14 of the HSA was also challenged. This was taken up by the Supreme Court in the matter of “Pratap Singh V Union Of India”.
The petitioner filed a Writ Petition questioning the constitutional validity of s. 14(1) of the Hindu Succession Act 1956 contending that the provision contained in 14(1) was vague and uncertain and in view of the observations made by this Court in V. Tulasamma & Ors. v. V. Sesha Reddi, the section could not be relied upon any longer, and that it was violative of Articles 14 and 15(1) as it has attempted to favour only one section of the community that was Hindu women on the ground of sex to the prejudice of the male members. The Supreme Court held that Section 14(1) of the Hindu Succession Act 1956 is not vague and is capable of implementation. This Court gave effect to that provision in Tulasamma's case. The observations were made only with a view to bringing to the notice of Parliament that the provisions of s. 14required to be recast in order to avoid any possible litigation arising on account of the clumsy language used therein. The Court, however, did not find any difficulty in construing and applying s.14 and in declaring that the property became the absolute property of the female.
The court further stated that Section 14(1) of the Act was enacted to remedy to some extent the plight of a Hindu woman who could not claim absolute interest in the properties inherited by her from her husband but who could only enjoy them with all the restrictions attached to a widow's estate under the Hindu Law. There is no justification for the males belonging to the Hindu community to raise any objection to the beneficent provisions contained in section 14(1) of the Act on the grounds of hostile discrimination. The provision is further protected by the express provision contained in clause (3) of Article 15.
The court has once again, progressively construed a provision that promotes women’s rights as good law. This has been a refreshing change, especially when the concerned law is related to hindu personal laws, given the patriarchal background of the customs on which such laws are based.
This amendment has infact been bought about to rectify the gender inequalities that the principal act had. The court, being mindful of the object of the amending act, and the need of the hour- to protect and promote women’s rights, has aptly taken the view that the relevant section is constitutional.
As discussed earlier, the constitution allows the legislature to make express provisions for the empowerment and upliftment of women. Hence the provision of article 15(3) of the constitution safeguards the said provision.
Section 15 and 16 of the hindu succession act are prima facie discriminatory and violative of various provisions enshrined in the constitution of india. The courts of law have on several occasions had to tackle with the question of the validity of these sections constitutionally.
The Bombay high court has dealt with this in Mamta Dinesh Vakil v Bansi S wadhwa. The question before the court was, Whether the devolution of a property of a female Hindu dying intestate under Section 15 of the Hindu Succession Act are unconstitutional as violating article 15.
The court held: The rules relating to the succession of Hindu females for the items specified in Section 15 are wholly distinct and different from those relating to succession of Hindu males in class I of the Schedule. It is clear that there is gender discrimination when father's parents would be preferred over mother's parents, all being grandparents .Similarly there would be gender discrimination when father's siblings would be preferred over mother's siblings. The discrimination exists, justified as patriarchy at the centre.
In this case, there is no “special” class of segregation apart from the gender. Therefore, hit by article 15 of the Constitution. It should be noted that the property inherited by a female Hindu from her husband or her father is legislated to remain within that family, the property of a male Hindu under the schedule to Section 8 of the Hindu Succession Act is not legislated to remain in that line itself.
The court, therefore, found the above mentioned sections to be unconstitutional.
Section 15 of the Hindu Succession Act, 1956 when analysed in contrast to section 8 of the act is unconstitutional on the face of it as it is completely discriminatory, and prejudicial to women. There is no reason for the differing rules of succession for men and women.
The rules of succession have a sense of patriarchy to them, with male relatives getting preference over female relatives. What is appalling to note is that a females property would first pass on to her husband’s heirs before going to her parents!
Though the section still exists in the statute book, the fact that a high court has found it unconstitutional is a ray of hope, and a step towards a larger goal of completely eliminating the section.
This was not the first time the Bombay High Court had to deal with the validity of these sections. Earlier, in the case of Sonubai Yeshwant Jadhay vs Bala Govinda Yadav It was held that the classification of heirs for females including the heirs of the husband was under the assumption of unity of the female with the husband’s family.
The court disagreed and held that the discrimination was only on gender and no family ties. This was because of the concept of keeping the property within the family it came from, exists only in cases of succession for females and not for the male community, otherwise the daughters would not be able to inherit a man’s property.
It was therefore held that the section is unconstitutional and therefore void.
It is heart-warming to note that the court has gone ahead and disregarded stereotypes by considering the fact that it is possible for a woman to not be united with the family of the husband.
In a society like ours where it is assumed that a girl once married, severes all ties from her parents house and becomes a part of the husbands family, it is a big step for the court to go ahead and state that the unity between the husbands family and the wife is not always present, and is just an assumption.
The mere fact that men and women do not have similar rules for succession, in my opinion, is discriminatory in nature and prejudicial to women.

Since time immemorial, Hindu religion has been male-centric and patriarchal in nature. This can be seen in the age-old customs and traditions that have been followed over the years. Practices like “female infanticide” and “sati” clearly show the mindset of the people and the domination of the male gender.
The hindu succession act, 1956 has been derived from the Hindu customs and traditions as discussed earlier, and also apply to the Hindu citizens in India. Therefore, it is fairly obvious that there will be a sense of male domination in the act.
It is reassuring to know that the legislature has recognised this domination, and is therefore trying to make amendments to bring about equality between men and women. The extension of property rights to women came as a great breakthrough in such a situation.
But this recognition, though acts as a ray of hope, is only a starting point for what is a long journey ahead. To achieve this objective, whatever steps are taken by the legislature is met with many impediments, varying from insecurities that men develop to people feeling like their religious customs and beliefs are being interfered with.
Specifically speaking, with regards to hindu succession act, 1956, the legislature came up with an amendment in 2005, with a view to progressively end all discrimination, and bring about total equality of sexes with respect to devolution of property. Unfortunately though, the amendment could only touch upon certain aspects of the discrimination. By not bringing in a modification to the devolution of property amongst females, they have stuck to the ancient concept of “a woman’s priority changing once she is married”
By the very act of having separate rules for succession for men and women, the legislature has created a division, and has made all notions of equality a farce. If the family of a man gets a right in his property upon his death, why should the family of a woman not have equal rights in her property upon her death? Why should they be placed on a lower footing than the family of the woman’s husband? There is clearly no logical explanation to this. The reason I assume for this lies in the belief that the woman, once is married, becomes a part of the husbands family. While this may be true, it does not follow that the woman has severed all ties from her previous family, or that they can be said to be less important than her new family. It therefore is not justified that the womans parents are of a lower standing in the “succession hierarchy”
Another thing which is irrationally discriminatory is the preference of male relatives over female relatives and the preference of father’s relatives over mother’s relatives in the “succession hierarchy”. There appears to be no reasonable explanation for this hierarchy, and again, men have been given more rights than women in matters related to succession as well.
What else is astounding is that when a woman dies, the source of the property she possesses has to be determined and the property goes back to that source, but that is not the case with men. So, if a man acquires the property on his own, has it gifted to him from his parents or his wife’s parents, the manner in which such property is devolved would be the same.
These are some of the aspects that are fiercely discriminatory against women which the legislature seems to have missed out on. While we are certainly moving in the right direction, there is a long way to go before men and women will be put on an equal footing.
My suggestion to bring an end to such discrimination would be to lay down a single set of rules for the devolution of property which is applicable to both men and women, and these rules should not be general pre-determined rules but should regard interpersonal relationships between the holder of the property and the person in whose favour the property is going to be devolved.
There is no arguing that one would rather want to give his property to people he held close to his heart upon his death, rather than people he had sour reationships with who were a part of the classes of heirs determined by law. If the legislature could incorporate changes as suggested by me, a person, who has failed to make a will, will not have to face such problems.
While interacting with the locals of the village outside my college, I realised that the mindset of the people is slowly evolving. While the elders of the village still have a narrow outlook, the younger generations are more open to change and believe in woman empowerment and the rights of women.
This is a positive sign that the society is slowly progressing towards a brighter future where men and women would both be seen and treated as equals, and once this change is bought about in the society, it would automatically be incorporated by our legislature.
As Mahatma Gandhi once said, “Be the change you want to see”.

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