Vibhum Shgaum*

This paper examines the Hindu Succession Act, 1956, regarding women’s inheritance rights. While the Act seemingly promotes gender equality in property rights, it indirectly perpetuates discrimination in inheritance mechanisms. It juxtaposes Direct Governmentalism (DG), focusing on egalitarian objectives, and Indirect Governmentalism (IG), emphasizing individual liberties. The Act grants women absolute property ownership but reverts it based on its source upon their death, favoring male heirs. This discriminatory structure, supposedly to prevent property from ‘strangers,’ limits women’s autonomy. The Act’s ideological bias towards patriarchal norms emerges in privileging husbands’ heirs over women’s blood relations. This paper advocates for a relational approach, combining DG and IG, emphasizing non-discrimination principles for a just inheritance law that respects individual liberties while addressing systemic biases against women.

Devolution of Hindu Women’s Property and Dichotomies of Governmentalism

Recently, the Supreme Court of India’s (SCI) decision upholding the widow/daughter’s right to inheritance from a Hindu male’s self-acquired or partitioned property as a recognised right under Hindu ‘customary practice’ has been seen as a progressive step towards a gender just society.  In its rendition, the court’s decision makes a seminal contribution to holding women’s property rights, but its inference does not stop there. Instead, it exhumes that the Hindu Succession Act, 1956 [HSA] expresses a just social consciousness since it establishes widow/daughter as a class I heir to the male dying intestate. Consequently, it exhibits an image of the HSA as ensuring an equal entitlement to property or, at least, without gender bias.

But mere assurances of the said expression do not evolve how the law sees women in the Act of 1956. As a rationale or concept, the law does not perpetuate harm; however, it is in its workings that women are discriminated against. The HSA, in its preamble, rationalises the need for the act to codify and consolidate the intestate succession of Hindu males and females. Moreover, the laws of Inheritance/succession are broadly centred on entitlements and statuses over the property. Despite its naturalistic (returns for obligation performances) or materialistic (distribution of property collected vide self-ownership) factors, the fact remains that inheritance is a distribution within blood relations. But this consolidation in determining the relatives of women creates different succession schemes for Hindu male and female propositus. While a difference in the system of devolution of the property does not make the act discriminatory, the effect that inhibits within the texts enables the creation of unfair differences. Recognising and differentiating women’s source of property for its distribution matters and not their husbands perpetuates discrimination against women. Therefore, this warrants a need to critically examine how the law perpetuates gender discrimination on women’s claims of property rights in its distribution.

While this study is warranted to account for the discrimination, it is alleged that gender studies focus more on direct governmentalism (DG), i.e., critiquing the statute guided by the egalitarian objectives, than indirect governmentalism (IG), which are libertarian principles that are evolutionary and based on individual experiences.[i] However, analysing the devolution of women’s property, I will argue how the IG principles develop with the DG approach and how, without IG, the DG approach leaves out a systematic predilection in the law’s intentionality for progressive reforms through the devolution rights of women’s property. In situating this relational nexus of IG and DG, the paper concludes that applying non-discrimination principles in this context becomes essential. In the ensuing section, part I of the article defines the IG and DG concept and politics in the family, and part II discusses the approaches in section 15, HSA. The paper concludes with the need for a relational approach to IG and DG that ensues in the non-discrimination principle ̶  a standard  ̶  to maintain the law’s fidelity.

Family, Women and Governmentalism:

Feminists have since long pointed out various mechanisms through which the oppression against women is maintained and perpetuated. However, it is not limited to the public sphere. The personal is political have exposed that the relationships of the private sphere are embedded in the power structures. Women’s biology,[ii] sex,[iii] and labour[iv] have been in debate since the 1970s, which argues how the relation of binary gender identity is of master (husband) and servant (wife) in the sexual contract of Marriage.[v] As women are seen as the property of their male counterparts, their property rights are systematically worse off through the laws of covertures. Further, women’s unpaid domestic labour is not accounted for but exploited by the sex/gender system of domination in biological determinism.[vi] This biological determinism constrains their participation in the public sphere and undervalues their contributions at home. Although the state’s role is considered patriarchal, the family wage has long been discussed, yet as the mode of change, it requires a radical transformation of the axis of the state’s welfarist policies.[vii]

Within these personal yet political discourses, Susan Okin’s seminal study on justice and gender broadens the scope of justice by bringing the importance of individual experiences of the sexes. She argues how justice- a welfarist objective- is limited without it.[viii] In theorising the injustices in the family structures, Okin introduced the dual potency of the liberal structure: to blind the silences in broad principles, making some the interiorised outside,[ix] and to account for such inconsistencies of equality.[x] Within these horizons, her work focused on expanding the justice element into the familial structures. This led her to question the structure of law, thereby constructing law as a tool for redistribution objectives like accounting for the labour of women in the family, equal sharing of parental responsibilities, etc.

While Okin’s work is a highly regarded critique of key political philosophies, Tomasi, in his critical reflection on contemporary feminists, including Okin, argued that all current feminist theories present limited potential for feminist critique. For him, the strategy for feminist critique of public policy and law can be divided into- DG and IG, with liberal and post-Marxist feminists identifying social concerns and pushing for an egalitarian constructive approach to the law, which he terms DG. With the aim of ‘setting beams and erecting walls’ in the conscious plan to achieve an objective through the state, Tomasi critiqued this DG approach of increasing the state’s involvement for its propensity to become restrictive[xi] to individual liberties. Setting objectives like gender equality, he argues, leads to the politics of essentialism in fulfilling the edict that the approach manoeuvres like legal provisions requiring how to share parental responsibility. He elucidates that such an approach permeates on dividing men and women. To overcome this, he favours the IG approach instead, which focuses on individual libertarian principles like self-ownership available equally to all with limited state involvement to the extent of enforcing it. Thus leaving open the space for the individual to direct their interaction and the law to provide support by only defining and enforcing constitutionally entrenched norms that protect the individual’s natural rights.

To credit Tomasi, the IG did bring the necessity of libertarian argument in feminist critique to law by accounting for the shortcomings of DG, but his account remains limited. It systematically neglects: i) how the feminist critique developed as a reaction to the criticism of the individual- a man or cisgender and ii) mistakenly forged the two strategies in juxtaposition. Where the former critique of the liberty principle is well documented in the feminist struggles,[xii] the latter is the underlying focus here. In its full effect, both the DG, in appealing to the justice objectives of the law and the IG, by restricting the law’s interference for individuals to engage among themselves, work to develop individual capabilities. When used together in reading law and bringing change, these strategies facilitate and enable a holistic legal perception of gender-neutral structures that diffuse opposition, not differences. One such demand is creating a neutral devolution property mechanism under HSA.

Although the attempt is not to explicate the discrimination under HSA alone, it is pertinent to note the constitutional untenability of the provisions in the HSA before we move to our discussion. The HSA is a legislative codification of the personal laws of Hindus, personal laws which have been immune from constitutional attack for a long time. In the long-held precedent ofState of Bombay v. Narasu Appa, the Bombay High Court judgment, while putting customs and usage to the test of part III of the Indian Constitution and its principles of equality and non-discrimination, constructed a space for personal laws beyond such challenges. Hence, such devolution of the property ought to be outside the judicial intervention. However, recent challenges to personal laws, the court’s reading of principles of arbitrariness, and transformative constitutionalism have started implicating the existing structures within personal laws and the unstainable divide. Nevertheless, it can be argued that the HSA, with its provisions, as a law made by the state, must abide by the principles of equality and non-discrimination or else such contravention stands void. 

Discontents and the Act, 1956:

Before the Act of 1956, the principles governing inheritance were covered under Hindu shastric principles. Under these principles, the property of a male was categorised based on its sources: coparcenary or separate property.[xiii] Amidst this, the question of women’s ownership rights remained an issue.[xiv] One of the reasons was that women were not equally considered in the foundational structure of Hindu patriarchal society as identities distinct from their male counterparts. Notwithstanding this later, for the first time, through legal intervention by the Women’s Right to Property Act of 1937 (Act, 1937), the law recognised the life interests of women.[xv] However, through this, the principles of IG- individual liberties- were not realised, making it ill-equipped to answer solely how oppression is produced and reproduced.[xvi] Thus, the gap underscores the DG’s approach to critiquing the law by upholding it accountable to an egalitarian objective. Subsequently, the codification of intestate succession in HSA and in new independence commitments to revamping social order for principles of equality removed the division of the sources of male property and simultaneously put across the principle of absolute ownership for women.

The legal intervention by instrumentalising the state apparatus- in the DG approach- constructed the social ordering for Hindu women in the liberal-egalitarian principles. However, the enumerated ways of devolution of Hindu female propositus property run counter to the principles it puts forth for the first time. Section 14 of the Act 1956, for the first time, provides women with the right to hold property from any source, inheritable/gift, etc., as their property under their complete and absolute control rather than for a limited purpose.[xvii] But immediately after, Section 15(2) puts forth the conditions for intestate succession of a woman’s property if she died issueless. Therein, the property is divided based on its sources. It enumerates that if inherited from the father or mother, it goes back to the father’s heir, and if it is received from her husband, it goes back to the husband’s heirs. This thereby exposes their property rights to an expression of the revisionist position of the property- an idea for property to return to its ‘original owners.’ This central idea, drawn from the expression of the text, puts their absolute right at stake since the property reverts to the male-original heirs based on the source of inheritance and not to the women’s heir as such- which, along with their children and the husband, includes their parents. Thus, such a classification in the law, i.e., sources of property, effectively undermines- women’s rights of ownership in favour of the original owners of the inherited property, who are, as the law enumerates, the father and husband of the woman.

In enumerating the rationality for such structural difference in the classification of property’s source for an inheritance, SCI has held that these provisions aim to prevent the property from entering the hands of ‘strangers’. According to the precedential definition, as reinstated recently by the court, a stranger is not even remotely connected to the person who had originally held the property. If that is the case, it does not make good the claim of the differentiated nature of Section 15(2)(a). The section provides that property inherited from the father or mother returns to the father’s heirs. Imagine a case where a daughter inherits property from her mother, and her father remarries. Upon the death of the daughter, the property will go to the father’s heirs, i.e., the stepbrother and stepmother. In the illustration above, the property goes to their father’s heirs according to the law and not the mothers, who are, in all technicality, strangers to the property since they have no relation with the mother who initially held the property. Thus, the purpose of the provision of returning the property to its source is defeated in such a scenario. Doesn’t this mean that women hold inheritable property from their father or husband only for a limited purpose? If yes, then what absolute property rights do they have?

Within this state interference, this differentiated mechanism makes a stop-gap arrangement for the woman, which gives them the liberty to exercise complete control of their property when they are alive. Still, upon their death, their property requires- reversion. Even though women are the absolute property owners and can sell, this implies women’s position as subservient to their source- if that capability is not realised, the property reverts under the scheme after the woman’s death. So, the Act of 1956 tacitly and indirectly accepts that women have no heirs apart from their pre-deceased children or their children’s children. In contrast to their male counterparts, it is only the property’s original owner whose heirs are recognised- that too male.

Apart from the inherited property, regarding succession of separate property, the SCI in Om Prakash v. Radbacharan held that the Act 1956 does not provide a mechanism for devolving the self-acquired property of female propositus. The Court, nevertheless, stated that since women have absolute ownership of self-acquired property, the general provision under section 15(1)(a) would come into play in such cases. This provision stipulates that succession occurs in such an order that the children and husband are preferred. If the property is self-acquired and there is no heir of Section 15(1)(a), then in order of preference, the husband’s heir gets the property thereon, the father’s heirs and then the mother’s heir will get the share). Thus, the provision brings a contrasting order of distribution of property rights from that of the male propositus. The property in the latter’s case is marked to be the class I heir, which includes the widow, children, mother, and predeceased children’s children, and devolves to become the class II heir, which provides for father, brother, etc. That is to say, the property is divided based on blood relations or nearness to a male’s blood. However, in the case of women, the Act of 1956 provides a provision of transplanting women’s share to their in-laws rather than their -maternal and paternal family, in order of precedence under section 16 HSA. 

The provision of Section 15(1) and (2) Act, 1956, was challenged for its constitutionality in the Bombay High Court. The court, upholding its validity, rationalised that merely because ‘heirs of husband’ and ‘heirs to wife’ are written does not necessarily mean that the Act is discriminatory. The Court held that the differences existed to enable the ‘union of marriage’ concept to flourish. Further, the court expressed that recognition of the husband’s heirs is ‘logically necessary’ to ‘continue the unity of which the female has merged into’ through marriage. This ensures the affixation of women’s position and role to their ‘new’ families- husbands’ families. The law here reads how the parties ought to function in marriage, implicating any choice of an alternative lifestyle and the liberties to form a ‘new family.’ In addition, essentialising the permanent abode of the married home also expresses patriarchal structures.[xviii] Hence, in the constructiveness of the ideal structure, the state impinges on the principles of self-ownership of the individual. Thus, by marriage, the strangers- the woman’s in-laws become entitled to their property even when they owned the property before their marriage, while they are not entitled to the property of the in-laws in this union. Under Section 6 of the Act, 1956, women are not entitled to coparcenary rights in their in-law’s property,[xix] as it only expounds the right of the daughters post the 2005 amendment. So, they cannot claim the partition or be considered an owner of the said property (an extension of coparcenary rights benefits) but are still required to perform their obligations of dividing their separate/self-acquired property in their ‘own-new’ family. The consequence of these rationalities in the text leads to an order of succession to the woman’s husband’s heir rather than the mother, even when the former had pushed the woman out of the house after the death of her husband.

It is essential to point out that the cultural expectations of the union of marriage are prevalent in all cultures. However, the HSA subjugates women’s rights in one community as such a law expresses Brahminic Patriarchal consideration, where women’s identity is merged with their husbands, not vice versa. Even though the law allows marriage to become a free pass for the husband’s heir to access women’s property, it doesn’t allow a similar approach in such marriage union for the women’s relatives. The discussion, therefore, provides an account that ideology within the law creates spaces for injustices if not accounted for and that the DG, in isolation, fails to restrict the efflorescence of centripetal forces of patriarchal social order in the legal interventions. Here, the IG approach of limiting the law’s inferences- constructiveness- becomes an imperative tool through its deontological and natural right of equal liberty that forbids the constructive element into HSA by pushing the need for a neutral approach to the devolution of property. Thus, without a relational reading of DG and IG in the law, the individual capabilities are only partially realised in the law- in our case, HSA.

Conclusion:

The inheritance laws of Hindu Intestate sound progressive for a daughter’s right to property as coparcenary in inheritable or self-acquired property; however, their capacities are subjugated in the devolution of these properties in intestate succession. Since such devolution subsumes their identity in the spaces of the union of marriage and to sources of property – both benefit the patriarchal legacy. To challenge the personal law embedded in the act, the ghost ofNarasu Appa has to be re-examined. However, the attempt here is not to articulate a challenge to the constitutionality or legality of the Act of 1956. Even so, post Shayara Bano and manifest discrimination in the provisions provide a strong case for the same. The intestate succession reflects how the law discriminates against women’s property rights and their autonomy in the family structure. Indeed, women are free to transfer the ownership of their property by will. Nonetheless, the provisions of the current Act in an intestate succession of women’s property are values rationalised, which gets exposed when one reflects the denial of their self-determination in devolving their property to their blood relations before in-laws.

It can’t be denied that the HSA, in its DG approach, is revolutionary in its intention of creating absolute ownership of women over their property; however, the social situatedness of the law effectively undermines and escalates the differences by providing an unfair scheme which the IG approach assists in exposing. This restricts women’s evolutionary expression, which IG and DG promise to exhibit. Therefore, principles of inheritance [laws] that expound women’s liberty and account for these ideologies would facilitate establishing a representative and just social order in inheritance law. While gender-neutral laws are appealing as a solution, it is essential to look past the neutrality to how, as a whole, it creates an interiorised outside. Like in cases of coparcenary property, the daughter-in-law has no rights, yet her in-laws get preference over their parents. And herein, the significance of the non-discrimination standard, whether direct or indirect, lies. In affixing the law’s fidelity to balance the relational aspect of the law’s respect to individual liberty in the abstract construction of DG and principles of justice in the systemic exercise of IG, non-discrimination keeps check on legal arbitrage.

[i] John Tomasi, Can Feminism be Liberated from Governmentalism? in TOWARDS A HUMANIST JUSTICE: THE POLITICAL PHILOSOPHY OF SUSAN MILLER OKIN 67-92 (Debora Satz and Rob Riech ed. 2009).

[ii] Shulamith Firestone, Dialectic of Sex: The Case for Feminist Revolution 11 (1972).

[iii] Catharine Mackinnon, Feminism Unmodified 41 (1987).

[iv] Christine Delphy, Close to home: a materialist analysis of women’s oppression 78 (1984).

[v] Carol Pateman, The Sexual Contract 116 (1988).

[vi] Nancy Chodorow, The Reproduction of Mothering 154-58 (1978).

[vii] Nancy Fraser, After the Family Wage: Gender Equity and the Welfare State 22(4) POLITICAL THEORY591 (1994).

[viii] Susan Okin, Justice and Gender, 16(1) PHILOSOPHY & PUBLIC AFFAIRS 42 (1987).

[ix] J. Butler & G. Spivak, who sings the Nation’s state? Language, Politics, Belonging. Seagull(2011).

[x] Debora Satz and Rob Riech, Introduction in TOWARDS A HUMANIST JUSTICE: A CRITICAL INTRODUCTION TO THE WORK OF SUSAN MOLLER OKIN 3-12 (Debora Satz and Rob Riech ed. 2009).

[xi] Supra note (i) at 79.

[xii] Supra note (iii) at 42. Supra note (iv) at 28.

[xiii] Asmita Yadhav, Coparcenary Rights and Gender Justice, 78 PROCEEDINGS OF INDIAN HISTORY CONGRESS 1165 (2017).

[xiv] Id 1166.

[xv] Section 3(1) of Act, 1937 read with Section 3(3) of the Act, 1937.

[xvi] Ann Cudd, Review of Debra Satz, Rob Reich (eds.) The Political Philosophy of Susan Miller Okin 11

NOTRE DAME PHILOSOPHICAL REVIEW (2009). 

[xvii] Duraiswami Aiyangar, A Study of Hindu Succession Act- XXX of 1956 69 LW(JS) 101(1956).

[xviii] Poonam Saxena, Notes and Comments: Reinforcing Patriarchal Dictates through Judicial Mechanism: Need to Reform Law of Succession to Hindu Female Intestate 51 JILI 221 (2009).

[xix] Vijendra Kumar, Equal Property Rights of Daughter under Hindu Law: A Socio- Legal Study, 62 JILI 217 (2020).

*Vibhum Shgaum is a Research Assistant at NALSAR University of Law, Hyderabad