The Authors, Sakshi Vimal and Gati Jhamb, are 2nd-year students at National Law Institute, Bhopal.
Featured Artwork by Ajay Mohanty.
The aim of the Hindu Succession Act, 1956 (‘’HAS, 1956) was to be a progressive legislation and help post-independence India and its people progress and get succession rights. The legislation throughout the years has brought progressive amendments – from granting women coparcenary rights, to making room for succession over survivorship. Insofar as coparcener is concerned, women have received equal rights as men. However, Section 15 of the Act does not align with this spirit.
The case in question, Kamal Anant Khopkar v. Union of India, has brought this issue to the forefront, asking the same question. Section 15 reflects the patriarchal attitudes of the society and the constitutionality of it has been challenged through the case. This question is still pending before the Supreme Court of India, although through this article the authors are attempting to evaluate the background of the case and the reasons the for petitioner’s contentions – the patriarchal attitude of the society.
On a preliminary reading, the section seems to impartially codify the laws of succession for women’s property. However, upon reading of Section 8, which deals with male succession, the differences between the two sections become apparent. Section 15, deals with women’s properties’ devolution to her husband and his heirs and then her own parents, however, Section 8 of the Act deals with the same subject matter as per a schedule, devolving the property onto his own heirs and not in respect to his relationship with other people.
Background of the Case
The petitioner, Kamal Anant Khopkar, the mother of a deceased daughter, filed the petition and contended that Section 15 of the Hindu Succession Act, violates Article 14, 15 and 21 of the Constitution of India. It was contended that the Section discriminates by providing differential treatment for men and women. This difference is apparent in the fact that, while section 8 prioritizes the man’s heirs, Section 15 also prioritizes the husband’s heirs over the woman’s own.
As highlighted above, Section 15(1) states that the property of a Hindu woman shall first devolve upon her sons, daughters and husband, followed by his heirs and then upon her own heirs, i.e. her parents and then her parents’ heirs. On the contrary, Section 8 references to the second schedule, with a list of heirs – Class I, Class II, Agnates and Cognates. Class I heirs get the property first, if they are not present, then Class II. Class I heirs consist of his children, widow, mother and their grandchildren.
The Bombay High Court initially heard the matter, but the petitioner filed a Special Leave Petition in the Supreme Court after the High Court’s decision. Despite the dispute being settled, the Supreme Court decided to hear the matter to the extent of its relationship with discrimination and the constitutionality of Section 15, itself. Articles 14 and 15 of the Constitution of India guarantee equality to all people, and any such provision is a violation of this fundamental right.
Judicial Interpretations
The SC’s decision in Om Prakash v. Radhacharan is particularly relevant to this issue. In that case, a woman named Narayani died and upon her death, a dispute arose over the succession of her self-acquired properties. Her mother and her late husband’s brothers both applied for a succession certificate. Herein, the woman was thrown out of her in laws’ house after three months of marriage, due to her husband passing away because of a snake bite. She lived with her parents for 42 years and acquired significant property because of the education they provided to her.
Despite this, the Court held that the self-acquired property of a Hindu woman devolves under Section 15(1), prioritizing the husband’s heirs over the woman’s parents. The court held that they would not evaluate a statutory provision’s validity, and the decision they are rendering is based on the statute itself. Its justification for upholding Section 15(1) in cases of self-acquired property was not clear, and more importantly, its interpretation of the provision failed to address the broader issue of gender discrimination.
Mamta Dinesh Vakil v. Bansi S. Wadhwa (2012), in this case, the Bombay High Court was considering the petition challenging Section 15(1), the Court held that the section was not drafted this way due to gender bias, but with the intent of keeping the property within the family and that the petitioners should consider the same. The Court’s logic was flawed and still perpetuated gender stereotypes. Considering that the traditional concept of ‘family’, itself is discriminatory to women, even if that were to be considered the aim, the issue still persists due to the inherent bias. The court, in its reasoning, assumed that the woman’s self-acquired property does not belong to her parents and birth family, but to the family she is married into. This logic is based on the inherent abandonment of a woman’s family after her marriage.
Similarly, in the instant case, the court displayed a lack of clarity in interpreting the sections. While it acknowledged the discriminatory nature of the provision, it did not provide a clear rationale to uphold the provision. The petitioners also contended that the Court should focus on evaluating Section 15 on tenets of constitutionality, instead of merely upholding the provision. The court’s refusal to strike down section 15 raises questions about its commitment to equality. By allowing the provision to exist, the Court is allowing the discrimination to perpetuate.
Thus, the Supreme Court’s decision in Kamal Anant Khopkar shall have immense repercussions for gender equality in the country. It undermines the progress made by the country over the years in the field of gender equality. Further, the court’s delay in addressing the issue shall exasperate the issue.
The Patriarchal Drafting
The primary issue of the section, is its drafting itself and the attitudes of the society that it reflects. This erroneous drafting is also prominent in Section 15(2)(b), which states that if a woman inherits the property from her husband or father in-law it shall devolve upon the heirs of the husband. This does not take into account the possibility of the husband being alive, thus, even if he is alive, but the property is inherited from her father in-law, he would not get it.
The hierarchy entrenched in the Section is problematic from various perspectives. For instance, if a woman inherits property from her father, it devolves upon his heirs, instead of her mother or any other heirs of her own. This systematic prioritization and de-prioritization perpetuate the idea that a woman is only characterized by her relationships and, in herself, is not an entity, capable of existing individually.
Further, the Supreme Court, upholding the application of Section 15(1) to the self-acquired property of a Hindu woman in Om Prakash v. Radhacharan reinforces the patriarchal notion that a woman’s primary allegiance is to her marital family, even after her death. The Court’s decision, while technically correct under the existing law, highlights the deeply rooted discriminatory nature of Section 15 and its failure to account for the woman’s relationship with her natal family.
Under Section 8 of the Act, on the contrary, the property of a man devolves upon his wife, children and parents, making sure that his natal family is a part of his inheritance, however, Section 15, excludes a woman’s natal family in favour of her husband’s. A woman’s parents should also have the same security and rights as the husband’s and should be able to claim rights to the daughter’s self-acquired and inherited property, after her death.
Further, even the 174th Law Commission’s report highlighted the discriminatory nature of the Section and criticized it harshly, despite which the provision has continued to exist. Thus, even though the issue has been brought to light, the legislature has closed its eyes to the same, thus allowing for the growth of these issues.
Conclusion
“The Courts do not decide a case based on how the society will react, they decide the case only based on Constitutional Morality” ~Former CJI DY Chandrachud.
The current discussion through this case, shall mark a pivotal moment in history for the upholding of women’s property rights. As has been reiterated previously, the Section is violative of women’s fundamental rights of justice and equality and protection against gender discrimination. The judgment in this case will be monumental in determining legislative and societal attitudes towards women and gender discrimination.
It is the responsibility of the legislature, to not just make laws that eradicate stereotypes against women, but also to correct the previous ones and make sure that they do not continue to accentuate issues with regard to women and result in unjust behaviours towards them.
The provision’s discriminatory impact is further exacerbated by its inconsistent interpretation, as seen in cases like Om Prakash v. Radhacharan, where the Court prioritized statutory provisions over principles of equity and justice. The delay in resolving this issue reflects a troubling indifference to the plight of women affected daily by Section 15 in modern-day India with a growing number of self-earning working women with their own property.
The judiciary’s reluctance in addressing the issue raises questions and concerns about judicial attitude. The Apex court should thus resolve the issue once and for all and lay down the law with respect to gender discrimination under Section 15 of the Hindu Succession Act. Further delay in deciding the dispute will only continue to complicate the issue and lead to more discrimination towards women and their heirs. It is imperative at this point for the Court to take swift action and clarify the aim of the legislative judiciary in allowing for equality across the country.
Leave a Reply