Section 15 of the Hindu Succession Act | Day 1: Provision discriminates against Hindu women, petitioners argue

Arora: Section 15 is discriminatory towards Hindu intestate women

Arora argued, that the HSA creates two different regimes for succession for Hindu men and women. She noted that in a situation where a married man dies without a will, Section 8 of the HSA states that devolution of property must take place according to the Schedule of the Act. The Schedule enumerates two classes of heirs. While the property first devolves upon Class I heirs (who get a simultaneous right over the property), it devolves upon the Class II heirs only if there is no Class I heir.

Arora argued that contrary to this process prescribed for male intestate succession, Section 15, which deals with succession from Hindu intestate women, was discriminatory. Upon the death of the woman, the property devolves upon the husband or children, and in their absence, to members of the husband’s family.

Arora highlighted the Supreme Court’s decision in Omprakash v Radhacharan (2009). In this case, a Division Bench had applied a strict reading of Section 15 and ruled against the deceased woman’s parents from inheriting the assets that she built during her lifetime. While the woman, who had been thrown out of her matrimonial home after becoming a widow three months into marriage, had been educated by her parents, the Court ruled that because of Section 15, the property would go to the husband’s nephew.

Justice Nagarathna appeared unconvinced. “What prevents a lady from making a will?” she asked. Arora explained that in rural regions, instances of intestate succession of the property of women were common. Justice Nagarathna responded: “We have come from the rural areas. We know how many women in India [in] rural areas have property.”

Justice Nagarathna also objected to Arora citing the Omprakash decision where the wife’s property went to the husband’s nephew over the wife’s mother, explaining that it was a ‘rarest of rare’ case. “It is the rarest of rare cases where a lady who is married will not have a husband or children. In that case, if she does not make a will [only then a situation like this would arise],” she said. She observed that a ‘rarest of rare’ example, which was an exception, could not be used to strike down a law.

Arora: There has been a sea change of circumstances since Section 15 was enacted

Arora also contended against Section 15(2) of the HSA. Section 15(2) provides that when a Hindu woman dies intestate, the property that she got from her father-in-law or the husband goes to the husband’s family line, and the property taken from her father goes to the heirs of the father or the father. Arora attempted to argue that Section 15(2) merely treats the woman as a “vessel”.

Justice Nagarathna, however, remarked that Section 15(2) only ensures that the property goes back to the source.

Arora argued that Section 15 had become anachronistic. She reminded the Court that Section 15(1) and (2) were the result of B.R. Ambedkar and other legislators’ compromise during the debates surrounding the HSA and the Hindu Code because of the “peculiar” positioning of Hindu women in personal law. Ambedkar had subsequently resigned from his position as law minister after the Hindu Code was not accepted.

“My Lords, we are 75 years from then,” Arora said, “What the Hindu woman stood at that point in time, at the time when this particular Hindu Succession Act was [enacted], today, there is a sea change.” She noted that modern, working women were not necessarily comfortable with distant relatives of the husband having a superior claim to their property over their own mother and father.

Justice Nagarathna raised an interesting line of enquiry, questioning whether Arora’s prayer had more to do with the rights of the successor. She stated that a Hindu woman after marriage left her parental home and went to her husband’s house. At the time of her death, if she did not have her husband or children, which was a rare case, and she had also not made a will, then it would go to the husband’s heirs. Justice Nagarathna seemed to suggest that it was only fair because the husband has an obligation under the Hindu Adoption and Maintenance Act to look after the wife and maintain her. “Today, you are agitating the rights of the parents of a Hindu woman who dies intestate. This has nothing to do with gender justice” she said.

Court detags various matters

Through the rest of the hearing, the bench largely heard individual petitions tagged in the matter. The object was to detag petitions which were not squarely challenging the constitutionality of Section 15. This included the main matter Kamal Anant Khopkar v Union of India, which Advocate Mrunal Buva explained had been a succession dispute that was settled already. While Buva pressed for the petition to not be de-tagged, Justice Nagarathna objected that it would be akin to “luxury litigation.”

The Court directed the Union to submit the counter-arguments and has directed the registry to list the case after four weeks.