Female intestate succession under The Hindu Succession Act, 1956

Hindu Succession ActThe patriarchal domination is firmly rooted in the Indian society, including laws such as the succession laws under various personal laws including the Hindu Succession Act, 1956 (HSA). The socio-economic changes have placed women in a much better position and at par with men. But it seems that these changes have no impact on the old age laws.

This paper talks about sec 15(1) of the HSA, which by its very own nature is discriminatory and biased. Section 15(1) of the HSL specifies the manner in which the property of a female should be inherited if she dies intestate. The property of the woman who has died intestate is aimed at returning it back to the source. But the inheritance law for the self acquired property of the woman which says that such property is to be inherited by the husband of the deceased and her in-laws is in question for its illogical biasness.

Although, the reasoning of the legislatures at the time of forming it was adequate and acceptable that time, but in the present scenario, this particular succession law has been under criticism for its discriminatory nature which clearly violates article 15 of the Indian Constitution which states that no one can be discriminated against based on gender.

This paper talks about the irrelevancy of this law at present and aims at presenting the available alternatives for the distribution of a female’s property if she dies intestate.

But the question of equality remains to be answered by bringing in an amendment to solidify the concept of “equality” which is the backbone of any society and is one of the basic elements of the Preamble of the Indian Constitution.


“Discrimination against women is so pervasive that it sometimes surfaces on a bare perusal of the law made by the legislature itself.  This is particularly so in relation to laws governing the inheritance/succession of property amongst the members of a Joint Hindu family. It  seems  that  this  discrimination  is  so  deep  and systematic  that  it  has  placed women at the receiving end.”[1]

India is a country where women are taking a lead and are at par with men in all spheres- social, economic and political. With the socio-economic changes taking place, the Indian society is witnessing a greater participation of women and hence, equality is no more a distant dream. But when laws of the 20th century govern the 21st century society, the Fundamental Right of Equality that Section 15 of the Indian Constitution guarantees, possess a threat of being violated.

The Hindu Succession Act (HSA) came to picture in 1956 and is applicable even today, after 60 years! When the gap is so wide, it’s not at all surprising that laws of that time are not in conformity with the present day social conditions.


·         Is section 15(1) of Hindu Succession Act, 1956 Constitutionally Valid?

·         Is there a need to change the present law?

·         What are the alternatives in picture?


The researcher has followed the doctrinal method of research. The primary source of the information is the Hindu Succession Act, 1956. Apart from that, scholarly articles, and books have been referred to. The researcher has also referred to the existing legislation and case laws to find out the present position of law.
1.      The Existing Law: The first chapter deals with the present day law applicable to  female intestate succession under the Hindu Personal Law i.e. section 15 (1) of the Hindu Succession Act, 1956.

2.      Checking the Constitutional Validity: This chapter deals with the question of constitutional validity of the law in question, supported by case laws that present the reasoning of the Courts to upheld or deny the constitutional validity of section 15(1).

3.      The Present Scene: In this chapter, the researcher shall talk about the need to change the present day law based on the socio-economic changes taking place as well as the “hard case” of Omprakash and Others v. Radhacharan and Others[2].

4.       Suggestions and Conclusions: This part contains the proposals and suggestions to replace and modify the law into a fair and equal law. Apart from this, this section will also contain the answer of the research questions followed by the conclusion.


Intestate Succession is the method by which property is distributed when a person dies without a valid will.

The Hindu Succession Act, 1956 slots property of a Hindu female under three categories:

i.            property inherited by a female from her father or mother

ii.            property inherited from her husband or father-in-law

iii.            properties that are not governed by the first two categories.

Under sec 15 r/w sec 16 of the HSA, the general rule for succession of all kinds of the properties is that it will pass on to the children (or if children predeceased the female, to the predeceased children’s children) and the husband. However, in case there is no one in existence from the above at the time when succession opens, the first kind of property will be inherited by the heirs of her father and the second by the heirs of her husband. Perhaps, the intention of the legislature was that the property should go back to the source from which it was received.

It is the succession procedure of the third kind of property, which includes the self acquired properties or properties received in any other manner or from any other source, provided the female has absolute rights in that property, which is under question in this research paper. Sec 15(1) of the act provides for a specific order, in which this property divests;

a)      firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

b)      secondly, upon the heirs of the husband;

c)      thirdly, upon the mother and father;

d)     fourthly, upon the heirs of the father; and

e)      lastly, upon the heirs of the mother.[3]

The HSA relegates blood relations of a Hindu woman to an inferior position vis-à-vis her husband’s heirs. This leads to a situation where a woman’s relatives from her parent’s side will never be able to inherit her property when the husband has an heir, however remotely related.
Under Article 15(1) of the Constitution, there cannot be discrimination “against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” This being the case, discrimination based only on the above grounds is unconstitutional, but not the one which is based on the above factors coupled with some other criteria like social and educational backwardness.

It was argued in the Mamta Dinesh Vakil case that the inequality which exists in Section 15(1) of the act is not based on gender alone, but also on family ties.

The woman, upon marriage, goes into the family of her husband; the converse is not true. A woman gives up her maternal/paternal ties upon her marriage and assumes marital ties. Hence, intestate succession for Hindus takes into account this ground reality.

It was argued that it is considering this reality that the legislature has provided for the heirs of the husband in the woman’s property.

The constitutional validity of the section in question was brought to the judiciary in an earlier case of Sonubai Yeshwant Jadhav v Bala Govinda Yadav[4]. It was held there that

“The object of the legislation was to retain property with the joint family upon marriage which brought males and females together forming one institution. It, therefore, accepted that in recognition of that position when the wife’s succession opened, the class known as heirs of the husband were permitted to succeed as a result of initial unity in marriage upon which the female merged in the family of her husband.”

The court, in the Mamta Dinesh Vakil[5] case, rejected this argument and added that the discrimination in the section is only based on gender and not on family ties. The court analysed the succession scheme of the male intestates under the HSA to check the viability of the argument. It noticed that keeping the property within the family was not being envisaged. Otherwise, the property of a male Hindu would not be inherited by daughters, sister’s sons and sister’s daughters. It was thus observed that the only basis of this classification was gender. It was further concluded that the section is extremely discriminatory inasmuch as the female’s property, even if self-acquired, is not inherited by her core heirs. Further, a Hindu female, “who would otherwise hope to succeed to an estate of another Hindu female as an heir would receive setback from the distant relatives of the husband of the deceased not even known to her or contemplated by her to be her competitors.” Therefore, the section is ultra vires of the scheme of the Constitution and hence invalid.

The succession laws are not only about the ones who are entitled to the property, but also about the ones who should be disentitled. The 21st edition of Principles of Hindu Law (Mulla) also observes that section 15(2) is based on the grounds that property should not pass to the individual “whom justice would require it should not pass.” Example of the same is the Section 25 of the HSA which disqualifies a murderer from inheriting the property of the person he/she has murdered. It is based on the belief that the deceased person will never want the person who murdered him/her to inherit property.


It will be a blemish that even when the Hindu society is thriving towards gender equality, the succession laws discriminate. A legislation which discriminates only on the basis of gender, can be questioned, as was done when section 10 and 34 of the Indian Divorce Act were amended (in the cases of Ammini E. J. v. Union of India[6] and N. Sarda Mani v. G. Alexander[7]). Moreover, there have been progressive changes in the Hindu law itself, e.g. the amendment in sec 6 giving women the right to coparcenary and deletion of section 23 which deprived women of sharing the dwelling house by the 2005 amendment. Although there can be different laws for different religions, there cannot be different laws for different sexes and thus the judiciary has a right to interfere in the latter case.


The 174th Report of the Law Commission also examined the subject of “Property Rights of Women; Proposed Reforms under the Hindu Law” and had noted that the rules of devolution of the property of a female who dies intestate reflects patriarchal assumptions.

At the time of enactment of the HSA, the socio-economic conditions of women were different. At present, women hold some really good share of personal property and the family ties with her in-laws are the same as her own family due to the emerging concept of nuclear families.

The adoption of century old law, hence, does not make any sense and presents the possibility of being discriminatory and vague, which is true in the present case at least.


To set an example, some other States have amended the law. The Hindu Succession [Andhra Pradesh] Amendment Act, 1985 is one such example.

The Supreme Court has ruled that a Hindu woman or girl will have equal property rights along with other male relatives for any partition made in intestate succession after September 2005. A bench of justices R. M. Lodha and Jagdish Singh Khehar in a judgment said that under the Hindu Succession (Amendment) Act, 2005, the daughters are entitled to equal inheritance rights along with other male siblings, which was not available to them prior to the amendment. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005. The legislature has now conferred substantive right in favour of the daughters.


Omprakash and Ors Vs. Radhacharan and Ors[8]

In 1955, Narayani Devi married Deendayal Sharma, who died within three months. Soon she was driven out of her matrimonial home. She lived with her parents, earned a living and died on July 11, 1966. She left behind a substantial estate, but wrote no will. Both her mother and her husband’s family claimed a succession certificate. The Supreme Court considered the scope of Section 15 of the Hindu Succession Act and held against the mother.

The Supreme Court held that Section 15(1) lays down the ordinary rule of succession; Section 15(2)(a) only carves out an exception to Section 15(1). It observed that the law is silent on a Hindu woman’s self-acquired property, and such property cannot be considered as property inherited from her parents.

The court said:

“This is a hard case… But then only because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision, which is otherwise impermissible. It is now a well settled principle in law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous.”

In Narayani Devi’s case, the mother’s claim was not based on sympathy or sentiment, but logic and principles of fairness, equity and justice. The Supreme Court, however, found that the law was a hurdle to her claim.

Justice A.M. Bhattacharjee wrote thus in Modern Hindu Law Under Constitution: “Under the provision of Section 15(1) read with sub-section (2) in the absence of children, the order of succession in the case of a female Hindu would vary according to the source of acquisition of property.” He asked why the source of acquisition should be a determinant in the case of a Hindu woman when it is not so in the case of a Hindu man. “Unless we still want to perpetuate in a somewhat different form the old outmoded view that ownership of property cannot be full but must be somewhat limited.”

Hindu law as it existed before the Constitution has been the subject of criticism for the glaring inequalities that it perpetuated. But we find lurking inequalities even in subsequent enactments.

Here, the court granted the property to the very people who behaved cruelly with the deceased and did not maintain the relationship when she needed it the most.[9]

Although a magnum opus, the judgment of the Mamta Dinesh Vakil case has been passed by a single bench of the high court and needs to be affirmed by the division bench. Once it is so done, it will be a watershed judgment to bring in equality in the Hindu law. Once declared unconstitutional, the government can use the recommendations of the 207th Law Commission Report, 2008 to bring reforms in the law.

The report suggests two options, one of bringing the intestate succession laws in parity with the males, and the other of dividing the property equally among the matrimonial and natal heirs, taking into note the ground reality that the woman ultimately leaves her natal place and works under the constant support of her in-laws. Either of these options will be progressive changes in the Hindu law and would prove the supremacy of the Constitution.


Section 15(1) of the Hindu Succession Act, is a violation of the Fundamental Right of Equality and hence, it needs to be amended. “What women can expect from Courts… is a qualified degree of equal treatment. Women’s equality as delivered by Courts can only be integration into a pre-existing, predominantly male world.”[10]

In India those who own property do not always write a will. Narayani did not. She did not know the law of succession. She certainly would not have wanted her husband’s sister’s children to grab her earnings. If her spirit is floating around, it must be a very unhappy one. In India if a woman loses her husband because of death, desertion or divorce, there is a high probability that she will come to be with her parents. In the present day, many women have self-acquired property that they have earned because of their parents’ support. These are the ground realities. Keeping that in mind, it’s not wrong to assume that the laws having such discriminatory orientation will be repealed and new changes will be introduced and accepted as the society grows and develops.



·         Hindu Succession Act, 1956

·         Hindu Succession (Amendment) Act, 2005


·         Jain, M.P., “Indian Constitutional Law”, ed. 7th, LexisNexis, (Pg 935-937), ISBN 978-93-5143-064-3

·         Shukla, V.N., “Constitution of India”, edited by Mahendra Pal Singh, ed. 12th, Eastern Book Company, (Pg 89-91), ISBN 93-5028-957-1


·         Prabha Sridevan, “A law that thwarts justice”, The Hindu, June 26, 2011 retrieved at 04:43 pm on 20 April 2016

·         Dr. Justice Ar. Lakshmanan, “Let us amend the law, it is only fair to women”, The Hindu, July 24, 2011 retrieved at 06:45 pm on 20 April 2016


·         Editorial, “Hindu Woman Entitled To Equal Property Rights: Supreme Court”, The Hindu, NEW DELHI, October 13, 2011 retrieved at 02:34 am on 30 March 2016


·         Javed Razack, “Inheritance and Succession, Rights of Women and Daughters under Personal Laws”, available at http://www.lexorates.com/articles/inheritance-and-succession-rights-of-women-and-daughters-under-personal-laws/ retrieved at 12:43 pm on 16 April 2016

·         Professor Wendy Williams, “The Equality Crisis: Some Reflections on Culture, Courts, and Feminism,” published in 7 Women’s Rts. L. Rep. 175 (1982), retrieved at 01:28 am on 20 April 2016

·         Ms. Arpita Saha, “Intestate Succession: Devolution Of Property After The Death Of A Hindu Without A Will”, available at http://www.legalserviceindia.com/article/l258-Intestate-Succession.html, retrieved at 12:56 am on 22 April 2016

·         Ayushi Singhal, “Female Intestate Succession under Hindu Law: Analyzing its Constitutionality”, September 06, 2015, available at

http://www.legallyindia.com/Blogs/female-intestate-succession-under-hindu-law-analyzing-its-constitutionality, retrieved at 04:56 pm on 25 April 2016


·         The Hindu Succession Act, 1956 available at

http://admis.hp.nic.in/himpol/Citizen/LawLib/C129.HTM, retrieved at 10:56 am on 12 April 2016

·         http://www.vakilno1.com/bareacts/hindusuccessionact/hindusuccessionact.html retrieved at 06:43 pm on 15 March 2016

·         https://indconlawphil.wordpress.com/2015/09/06/female-intestate-succession-under-hindu-law-analyzing-its-constitutionality/ retrieved at 04:50 pm on 18 April 2016

·         http://ncw.nic.in/frmReportLaws21.aspx retrieved at 10:56 pm on 20 April 2016







·         [1] 174th Law Commission Report: Property Rights of Women: Proposed Reforms Under the Hindu Law, 2000 retrieved at 11:43 pm on 26 March 2016
[2] (2009)15 SCC Page 66
[3] The Hindu Succession Act, 1956 available at

http://admis.hp.nic.in/himpol/Citizen/LawLib/C129.HTM, retrieved at 10:56 pm on 12 April 2016
[4] AIR 1983 Bom 156
[5] 2012(6) Bom.C.R. 767
[6] AIR 1995 Ker 252
[7] AIR 1998 AP 157
[8] (2009)15 SCC Page 66
[9] Prabha Sridevan, “A law that thwarts justice”, The Hindu, June 26, 2011, retrieved at 04:43 pm on 20 April 2016
[10]Professor Wendy Williams, “The Equality Crisis: Some Reflections on Culture, Courts, and Feminism,” published in 7 Women’s Rts. L. Rep. 175 (1982), retrieved at 01:28 am on 20 April 2016