Gender discrimination in devolution of property under Hindu Succession Act, 1956

In India, statutes governing individuals on matters of personal law (marriage, divorce, inheritance, adoption) differ as per the religion of the individual. In this framework, matters of inheritance of property amongst Hindus, Buddhists, Jains and Sikhs are governed by the Hindu Succession Act, 1956 (HSA). This legislation applies to the transmission of all assets owned by Hindus. The provisions of the HSA discriminate against Hindu women by prescribing different rules for devolution of property held by men and women. These provisions have the effect of excessively, and unfairly prioritising the husband’s family in the scheme of devolution as compared to the woman’s own family, even when the property belongs to the woman. The legislation is a product of an era when it was inconceivable for Indian women to own and acquire property. However, these biases continue to be perpetrated upon Hindu women in India today. This discrimination is ultra vires of Articles 14 and 15 of the Constitution of India, it violates India’s commitments under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women, and leads to several undesirable consequences especially in cases where the property in question is acquired by the woman through her own skill or effort. Indian legislation such the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 (GSSNIP) and Indian Succession Act, 1925 (ISA), and succession laws of developed countries are far more gender-equitable, and can serve as an inspiration for eliminating the gender-discrimination in the HSA.The efforts, so far, to reform the HSA on this particular matter have been myopic at best. We provide a principles-based approach to comprehensively amend the HSA, to remove the gender discrimination in devolution of property. We propose a draft amendment to the HSA to effect this reform.