Hindu women’s right to succession: An analysis

Succession rights of Hindu women have undergone multiple changes throughout, with the introduction of newer legislations and amendments. This article traces those changes, and highlights the current position law when it comes to succession rights of Hindu women.

Pre Hindu Women’s Right to Property Act, 1937:

Women were not a part of the coparcenary. In the event of a death in the family, the property devolved by survivorship on male coparceners. Women got no share.They could not demand for partition. If a partition was demanded by a coparcener, or partition happened by mutual agreement, the following females were entitled to claim a share:

  • Father’s wife
    • Mother
    • Paternal grandmother

Severance of status was not enough, females could get a share only when partition by metes and bounds took place. If a female died before the partition, before metes and bounds is effected- her share remained in the common joint property pool. Maintenance rights were affected if she takes a share.

Post Hindu Women’s Right to Property Act, 1937 – Pre Hindu Succession Act,1956:

The widow of a deceased coparcenerhas, in the joint family property, the same interest as he himself had as for Hindu Woman’s estate and has the same right to claim partition and allotment of a share to her as fully male coparcener. Thus, a widow could step into the shoes of a deceased coparcener and asked for partition. Survivorship applied on death/remarriage of a widow. Females were not a fresh stock of descent. They had limited rights. After their death, the property would pass on by survivorship.

1956-2005/ Pre 2005 Amendment to the Hindu Succession Act, 1956:

Survivorship was confined to where a Male Hindu on dying does not leave behind class 1 heir (daughter/widow/…/son of predeceased daughter). Otherwise-notional partition/testamentary succession was applied.

Post 2005 Amendment:

The 2005 amendment, prompted by the case Vineeta Sharma v Rakesh Sharma[1], abolished the doctrine of survivorship for male Hindus. Females could be coparceners and Kartas. They have full ownership of properties. However, on her death, heirs of husband given preference over her own heirs.

Daughter’s share in joint family property post 2005 amendment:

Married Daughter: Daughters are also coparceners and according to Section 6:

(A) Since her children are already coparceners in their father’s family so they cannot be coparceners in their mother’s family (maternal grandfather), as coparcenary in two families is not concept of classical Hindu law. By application of Section 14 HSA, her coparcenary interest will mature into her absolute property and will devolve as per Section 15 HSA after her death.

(B) Since as of now we do not have any case curbing the revival of coparcenary in case of a daughter so you give her all rights under coparcenary and all revival of a coparcenary thereby giving share to her children as a branch but not to her husband. [(Section 6 (3) (b)]

Unmarried Daughter:

She can adopt a child and can continue her father’s joint family or coparcenary. Further, females can also become kartas.[2]

Despite the progressive amendment, there are certain lacuna that still prevail, including but not limited to the preference of the husband’s heirs over the wife’s heirs. It is thereby, concluded that the legislature should take up these issues and formulate a succession policy for Hindus that is both gender neutral and just.   

REFERENCE:

Poonam Pradhan Saxena: Family Law


[1]Vineeta Sharma v Rakesh Sharma, Civil Appeal 32601/2018

[2] Sujata Sharma v. Manu Gupta, 2015 SCC OnLine Del 14424

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