A three-judge Bench of the Supreme Court will examine the Constitutional validity of Section 15 of the Hindu Succession Act, 1956 [Kamal Anant Khopkar v. Union of India].
The Act has been assailed on the ground that it discriminates when it comes to the devolution of property in case of a woman dying intestate (without a will) as against devolution of property of a man dying intestate.
A Division Bench of Justices DY Chandrachud and Surya Kant said on Monday that it will be better that if matter is heard by a three-judge Bench and listed the case for hearing on February 10.
“Let us have it in a 3-judge bench. And let us list it on a non-miscellaneous day next week, to dispose it of,” the Court said.
The Court also allowed counsel for the petitioner to file written submissions.
“Counsel for the parties would be at liberty to file their written submissions before the next date of listing and a copy of the submissions in the PDF format shall be emailed,” the order said.
The plea filed through Advocates Buva Mrunal Dattatraya and Dhairyashil Salunkhe contended that the provision discriminates between men and women with respect to devolution of property intestate.
Provisions under challenge
Section 15 read with Section 16 provides for devolution of property of women dying intestate, while Section 8 read with Section 16 provides for devolution of property of men dying intestate.
Section 15 provides the general rules of succession in the case of female Hindus. Sub-section (1) lays down that the property of a female Hindu dying intestate shall devolve according to the following rules set out in Section 16:
(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.
Section 16 deals with the order of succession and manner of distribution among heirs of a female Hindu. It stipulates that among the heirs specified in sub-section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously.
On the other hand, Section 8 (general rules of succession in the case of males) provides that the property of a male Hindu dying intestate shall devolve in the following manner:
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; [Heirs in Class I are- Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre- deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son]
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
[Heirs in class II are:
II. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister.
III. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s daughter’s son, (4) daughter’s daughter’s daughter.
IV. (1) Brother’s son, (2) sister’s son, (3) brother’s daughter, (4) sister’s daughter.
V. Father’s father; father’s mother.
VI. Father’s widow; brother’s widow.
VII. Father’s brother; father’s sister.
VIII. Mother’s father; mother’s mother.
IX. Mother’s brother; mother’s sister.
Explanation.—In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood]
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
Section 10 of the Act provides that the property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:
Rule 1: The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share.
Rule 2: The surviving sons and daughters and the mother of the intestate shall each take one share.
Rule 3: The heirs In the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.
Rule 4: The distribution of the share referred to in Rule 3— (i) among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters get equal portions; and the branch of his pre-deceased sons gets the same portion; (ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.
The petitioner has contended that the discrimination in the above provisions is only based on gender and not on family ties.
She had also filed a special leave petition against an order of the Bombay High Court rejecting her caveat on the ground that she did not have a caveatable interest in the property of her deceased daughter, during the lifetime of the spouse of the deceased. However, the same was disposed of after it was brought to the Court’s notice that the matter had been settled.
The Court had, however, issued notice on the writ petition in 2019 on the ground that it raised an important question on gender equality.
Read Order here
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