The 2005 Amendment To The Hindu Succession Act And Gender Equality

Since time immemorial, succession laws have been framed by men themselves and tend to favour men exclusively. Women have been treated as being subservient to men and denied multiple property rights which they deserve to possess. Indian women have been in such a situation too, especially in the context of succession laws. Under the Mitakshara School of Hindu law, till quite recently, a woman did not possess birth right in the ancestral property of the joint family unlike the men of the family. Pandit Jawaharlal Nehru, the first Prime Minister of India, was someone who had, after the independence of India, expressed his desire to do away with all the disabilities faced by Hindu women by virtue of the personal laws of the country. The consequence of this expression was the creation of the Hindu Code Bills of 1955-56. One of the bills was the Hindu Succession Act, 1956 (hereinafter referred to as the HSA) which is the central legislation under consideration in this article. Under Section 6 of the HSA, succession of ancestral property used to be carried out along the patrilineal lineage of the joint family, wherein joint family property could pass on through the male line only. Women, unlike men, did not have an interest by birth in the coparcenary property. A woman, according to this section, did not have any share in the ancestral property as she was not a coparcenar. Hindu succession act To remedy this, came the amending act of 2005, which made an attempt to remove the discrimination that Section 6 of the HSA posed for women. It gave equal rights to daughters in coparcenary property of the family under Mitakshara school of Hindu Law. This amending Act was held by many to be a harbinger of hope as far as womens’ rights were concerned. However, did this amendment actually succeed in achieving gender equality? Although this amendment has improved the situation of women, with respect to succession of coparcenary property, there are still a number of issues regarding women property rights that the amendment hasn’t been able to address. The first issue is with Section 15 of the HSA. It specifies how exactly does a Hindu female’s property devolve after her death. According to this section, in the absence of the class I heirs (son, daughter and husband), the Hindu female’s property will devolve upon her husband’s heirs. Only if the husband’s heirs are not there will the Hindu female’s property go to her mother and father. This is quite different from the way a Hindu male’s property devolves after his death, where his wife’s heirs don’t really receive any part of his property after his death. This shows how the spouse’s family is considered to be more relevant for a female than a male in India subconsciously, through the property laws, and it is not the most fair arrangement of laws in the society. There is another problem with the amendment. Although it has managed to reform the position of the daughter in terms of succession, it has taken away the already minimal property right that the wives had in a Hindu joint family. Although daughters are acquiring a birthright in Hindu Joint Family property, mothers will lose a huge part of the already negligible property rights they have. These problems can be done away with only by doing away with the concept of birthright in Hindu succession laws. The 2005 amendment is also reinforcing the idea of birthright without considering the repercussions it will have on all the women of a Hindu Joint family. The issue of succession has to be analysed in a more holistic way by looking at different types of laws like matrimonial property laws, maintenance laws etc. Thus, the present bill is quite problematic merely because of the fact that it has a very one-dimensional approach towards the issue of property rights of women.     ———— ABOUT THE AUTHOR: This article is written by Sayesha Bhattacharya. Also read: Unwed mother can be the sole child’s guardian: Supreme Court’s latest landmark judgment


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