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

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In India, matters of personal law (marriage, divorce, inheritance, adoption) are governed under statutes which 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 transfer of all assets owned by Hindus.

This paper, published by the National Institute of Public Finance and Policy, highlights the provisions of the HSA which 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 prioritizing 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, and its biases continue to be perpetrated upon Hindu women in India today.

The paper puts the spotlight on the discriminatory provisions under the HSA, by presenting cases where the legal outcomes on property claims have been undesirable for women. Noting that the issue of discrimination against women in the HSA has not gone unnoticed by the Indian state over years, it also looks at the previous efforts at reforming the HSA and assesses its shortcomings. However, acknowledging that these efforts have been myopic at best, the paper provides a principles-based approach to comprehensively amend the HSA to remove the gender discrimination in devolution of property. It also includes a draft amendment to the HSA as an example of how it can be done.