The Supreme Court's recent upholding of the Hindu Succession Act (HSA) has brought attention to the law's differing treatment of men's and women's inheritance rights. Under the current framework, when a Hindu man dies intestate, his properties are distributed equally among his wife, children, and mother, with his father inheriting if no such successor exists. However, the law takes a markedly different approach for women. When a Hindu woman dies intestate, her properties - including those she acquired independently - pass to her children and husband, or in their absence, to her husband's heirs rather than her own parents. This is in contrast to the provisions in the Indian Succession Act of 1925 where the woman's natal family are placed above heirs of spouse, as in the case of the man.
This difference in the HAS creates distinct inheritance schemes for men and women. While a man's parents are recognized as Class I and Class II heirs, a woman's property is directed toward her husband's family over her own parents. The law particularly affects women who die without children, as their self-acquired property passes to their husband's family and distant relatives rather than their own parents.
The provisions of the HSA are fundamentally rooted in traditional assumptions about the Hindu joint family system and women's role in society. The law attempts to preserve property within the husband's family. The "heirs of husband" who have a right over the property could be far away from the husband's immediate family as (brother's sister), sister's daughter etc. This approach is based on two key assumptions: first, that the primarily land based rural joint family remains the primary unit of Hindu social organization, and second, that Hindu women lack the capacity to acquire and manage property independently.
However, contemporary demographic data reveals how outdated these assumptions have become. More than a third of India's population lives in urban areas. The average family size in India has shrunk from 5.16 persons per household in 2001 to 4.9 in 2011, with urban areas showing median family sizes below 4.
Families with only one girl child and the two child norm has led to many households with two daughters whom parents can depend on for their old age. About 9% Indian families have only daughters. A survey in 2016 revealed that 16 % parents plan to live with their daughters in their old age.
Emphasising the cultural roots of Hindu inheritance practices, the court noted. "There are villages in Uttar Pradesh and Bihar where a married woman's parents do not even drink water in the place they have married their daughters."
Legislative changes in India have nudged society away from gender biased traditional practices and behavioral patterns. The Dowry Prohibition Act of 1961 made giving, taking, or demanding dowry illegal in India, with offenders facing up to 5 years imprisonment and fines. Also, the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act of 1994 banned sex determination of foetuses to prevent female feticide, which had become widespread due to social preference for male children. This, along with emphasis on education of women is nudging society to move away from traditional responsibilities of sons and daughters.
As per the provisions of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 all children (except minors) of senior citizens are responsible to take care of their parents. In particular, sub-section 4 of Section 4 in the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 casts an obligation:
"Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such citizen or he would inherit the property of such senior citizen:
Provided that where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property."
As the law has been changed to give women the right to inherit the property of their parents, the law does not exclude daughters from the responsibility of taking care of their parents. In fact, it is a punishable offence not to do so.
The court also emphasised that "What happens after marriage? The woman gets a new gotra, new family and all rights and titles in her husband's properties."
In nuclear urban families new realities have emerged where modern working women derive their wealth from their own professional work. Female workforce participation has nearly tripled from 12% in 1971 to 33% in 2023. Today, 28% of women own land and 37% own houses, either independently or jointly. Financial inclusion has improved, with 53% of women maintaining bank accounts. Women's entrepreneurship has grown significantly, with female ownership of over 8 million proprietary establishments representing 15.4% of the total. Educational achievements are equally significant, with female literacy at 70% today. Women now constitute 46% of higher education enrolments and earn 53% of post-graduate degrees. The number of women taxpayers has been steadily increasing, with 22.9 million women filing income tax returns in the assessment year (AY) 2023-24. Over the past five years, the number of women tax filers has grown by 25.3%.
At the same time, the number of married women without surviving children has more than doubled from 2.4 crore in 1981 to 4.95 crore in 2011. India's total fertility rate has declined dramatically from 5.91 in 1960 to 2.51 in 2017. Furthermore, the widowed female population has grown from 2.4 crore in 1961 to 4.3 crore in 2011.
This suggests that self made property of issue less Hindu widows should be addressed by the legislative as traditional roles have changed and changes in other laws are no longer consistent with the notion of rural joint family farms or women's property coming only from husband's families. In any case the law takes care of the "source" in case the property is inherited by the woman from her husband's family, it goes back to her.
Legal concerns about provisions in HAS Section 15 extend beyond their practical impact. They potentially violate Articles 14 and 15 of the Indian Constitution and conflict with India's commitments under the UN Convention on the Elimination of All Forms of Discrimination Against Women. More equitable models exist in other Indian legislation, such as the Goa Succession, Special Notaries and Inventory Proceeding Act of 2012 and the Indian Succession Act of 1925, as well as in the succession laws of developed nations.
The growing disconnect between the HSA's traditional assumptions and contemporary Indian society makes legislative reform increasingly urgent. With more women acquiring property through their own efforts and demographic shifts expanding the affected population, modernizing these inheritance laws has become crucial. Parliament must consider making the HSA truly gender-neutral to reflect current social realities and ensure equitable treatment of women's property rights.