Introduction
Section 23 of the Hindu Succession Act, 1956 on one hand recognises the qualified right of residence of Class I female heirs and on the other hand bars such female heirs from seeking partition of the dwelling house until the male heirs agree to divide their shares in the house. It is contended by several scholars that Section 23 of the Act is per se discriminatory as it provides male heirs with the absolute right to seek partition, while making right of female heirs contingent on the right of male heirs. Such a provision runs contrary to the principle laid down by the Supreme Court in Bank Nationalization case1 and the later decision of Bennett Coleman & Co. v. Union of India2.
The objective of the section is to prevent the fragmentation of a family dwelling house at the instance of a female heir to the prejudice of the male heirs.3 This section reflects one of the ancient Hindu law tenets that treasured the dwelling house of the family as an impartible asset.4 The Calcutta High Court opined that the legislative intent of this section is to prevent a Class I female heir from disposing her share in the dwelling house to a stranger and to secure for her a place of residence in case the male members decide to partition.5 In other words, according to the Court, the section merely postpones a woman’s right to claim partition until the male heirs choose to divide their respective shares therein.6
Women’s limited right to claim partition
The Act took a giant leap in 1956 by granting several rights to women equal to that of men but failed to do complete justice to women.
In Madhavan v. Vellayyappan7 the High Court of Kerala held that as long as the male heir(s), whether alone or in plurality, choose to live in the dwelling house, female heirs are not entitled to seek partition. However, this right given to male heir(s) to keep the house unpartitioned is lost the moment a stranger is permitted to occupy a portion of it, or the male heir(s) or their families cease to use whole of the house as dwelling house.8 When the male heir(s) choose to divide the dwelling house, the female heirs (or their transferees) become entitled to their share therein. Such transferees will step into the shoes of the female transferor at the time of partition.
The Madras High Court has held that in circumstances when there is just one male heir, the female heirs cannot seek partition until that male heir decides to do so.9 The Court further opined that in such a case, the right to demand partition, vested in the female heir, vide Section 23 of the Act would be permanently postponed and ultimately frustrated. Such contingencies would cause great hardship to the female heirs; but cannot be avoided.10 The High Court of Allahabad and Calcutta have given similar opinion.11
Conversely, some High Courts have taken a liberal interpretation.
In the opinion of the High Court at Bombay, the section becomes defunct when there is only a single male heir, as the property ceases to be a “joint family property”. The Court also held that one cannot read in Section 23 more than what the legislature really intended. Thus, in the context in which the word “male heirs” is used in Section 23, it would not include the singular.12 The High Courts of Orissa13, Gujarat14 and Karnataka15 have also expressed similar views.
Thus different High Courts have approached the section differently and have given conflicting opinions. This confusion and mystery loomed large until 1996, when the Supreme Court in the case of Narashimaha Murthy v. Susheelabai16 declared that: (SCC pp. 655-56, para 14)
“Though the words ‘the male heirs choose to divide their respective shares’, suggest that at least two such male heirs must exist and decide not to partition the dwelling house in which event the right of the female heir is postponed and kept in abeyance until the male heir or heirs of the Hindu intestate decide to partition it, it does not necessarily lead to the only inevitable conclusion that the operation of Section 23 must stand excluded in the case of the Hindu intestate leaving behind him/her surviving only a son and a daughter.”17
The Court relying on Section 13(2) of the General Clauses Act, 1897 interpreted the plural word “heirs” to be including the singular word “heir”. The Court also drew attention towards Section 44 of the Transfer of Property Act, 1872 and Section 4(1) of the Partition Act, 1893 that embody the same principle as Section 23 of the Hindu Succession Act, 1956 i.e. prevention of fragmentation of the dwelling house.
The Hon’ble Supreme Court looked quite comprehensively at the hardships that male heirs would have to face if the female heirs claimed partition, but it failed to look from the opposite side. There is absolutely no point in recognising a “contingent right”, since restriction is unreasonable in the light of Article 14 of the Constitution. As a consequence of this decision a woman cannot claim partition in the property that belongs to her even if she wants to live separately. Several scholars and women rights activists, who expected a liberal interpretation from the Supreme Court, the most potent sentinel of justice, have rightly criticised the Court for not furthering the ends of justice.
Discrimination of daughters on the basis of marital status
It is contended by scholars that the proviso to the section also discriminates between female Class I heirs on the basis of their marital status.18 The proviso to the section grants right of residence to daughters, but only until they are unmarried.19 It denies married daughters the right to residence in the ancestral dwelling house but at the same time grants such right to married sons.
The supporters of such “discrimination” argue that if the married daughter is given right to residence, she might introduce her husband who would be a stranger to the family to the discomfort of other family members.20 It is also argued that the position of a daughter according to ancient Hindu law is that of a guest in her paternal home and her husband’s house is her permanent abode. Thus, to provide married daughters with the right to residence in the ancestral dwelling house would go against this settled principle of Hindu jurisprudence. Further, they argue that the section is pro-daughters and not discriminatory in the sense that in all circumstances under which a daughter would want to quit her matrimonial home,21 she is provided with the right to residence in the dwelling house of her paternal family but it is contingent on certain events.22
On the other side, several scholars argue that such discrimination based on gender must be done away with as it is violative of Article 14 and that differentiation based on marital status within the class of daughters is unreasonable and unconstitutional. This argument derives strength from Savita Samvedi v. Union of India23 where the Supreme Court held that the differentiation based on marital status is “wholly unfair, unreasonable and gender-biased” and is violative of Article 14. Referring to the distinction drawn by the railway circular between a married and an unmarried daughter, Punchhi, J. (as he then was) observed: (SCC p. 382, para 7)
“The eligibility of a married daughter must be placed on a par with an unmarried daughter (for she must have been once in that state), so as to claim the benefit………………………………… “
The observations made by the Hon’ble Court are symbolic of the changing trends of judicial interpretation that adopt a liberal view. However, it is difficult to import the ratio of this case, which deals with unreasonable classification for the purpose of allotment of railway quarter to the cases that relate to succession under family laws, (Section 23 of the Hindu Succession Act, 1956) as the objectives for classification behind both of them are different.24
Conclusion and suggestions
The objective of Section 23 of the Hindu Succession Act, 1956 is double-edged. It can be cautiously said that it protects the rights of female heirs to the extent of denying such rights. The idea of Section 23 is to provide right to residence to Class I female heirs, but the way the Supreme Court has interpreted it, such right has become meaningless, as female heirs cannot choose whether they want to live with other male heirs or separately.
In Indian society where widowhood, separation from husband and even unmarried status is frowned upon, a woman with such disabilities would want to claim partition and live a separate and peaceful life. However, she cannot obtain separate residence until her brothers are generous enough and concede to her demand. Right is made a subject of charity. The section also does not provide for right to residence to women in situations where the husband is cruel to the wife, and she wants to quit the matrimonial home without exhausting judicial matrimonial remedies, because of the social taboos linked with such remedies.
A daughter is a daughter for life and relations that she has with her natal family do not end on her marriage, then why should she be discriminated on the basis of her marital status? In India, the husband’s house is the permanent residence of the wife, and until compelled by circumstances the wife would not seek separate residence in the paternal house. If circumstances are such, then the law must help her by granting her right to residence. And, if it is feared that she will introduce a stranger by selling her share to him, then this fear is a myth, as under Section 22 of the Hindu Succession Act, in certain cases other heirs have a preferential right to buy the family property. Merely, on the basis of such apprehension an equitable right cannot be denied. The distinction between unmarried daughters and married daughters made by the Act may be unconstitutional.
The oft-raised issue of partibility of small houses was considered in Narashimaha Murthy v. Susheelabai26 where the Court held that partibility can still be condoned where the dwelling house is a mansion, but not when the house would be rendered uninhabitable if partitioned. The situation will become even more pitiable when the male heir will not be able to exercise his preferential right to buy the share under Section 22 of the Hindu Succession Act, 1956 because of his indigence. Rules based on the size of the property may be incorporated to determine the partibility of the house.
It is evident from the above discussion that a grave injustice is being done to women, and a section that was enacted to
empower them has in fact been used to subjugate them. It is submitted that, in spite of the liberal and just opinions expressed by various High Courts, the Supreme Court has put a seal of approval on Section 23 of the Act in Narashimaha
Murthy26 which invariably perpetrates gender injustice. Being a sentinel of justice, a larger Bench of the Supreme Court needs to review the case, and verify whether the ratio set in Narashimaha Murthy26 is the correct law.
In addition, the section, to an extent, has become redundant in Karnataka, Tamil Nadu, Maharashtra and Andhra Pradesh after passing of the State amendments which makes the unmarried daughter a coparcener. Being a coparcener, a daughter can ask for partition any time, and her right to do so will be no more contingent on the wishes of other male heirs of the same class. In the interest of the remaining married daughters an explanation may be added to Section 23 to provide absolute right to residence and to partition the dwelling house, which will remove some disparities between married and unmarried daughter which are created by the State amendments.
In the light of ancient Hindu jurisprudence on the status of women and the dwelling house27, it would not be fair to per se to do away with Section 23 of the Hindu Succession Act, 1956 as is suggested by the 174th Report of the Law Commission of India; but it may be interpreted by the courts or an explanation should be added by the legislature to provide qualified right to claim partition, that the section shall cease to apply when there is only one male heir28, and that all female Class I heirs shall have the right to residence in the ancestral dwelling house irrespective of their marital status.
