The Subordination of Customary Schemes of Succession under the Hindu Succession Act

*Vanshika Rathi

India’s identity is defined by a pluralistic tapestry of religions and customs. To preserve this 'unity in diversity,' our lawmakers favoured enactment of personal laws over a Uniform Civil Code in matters like marriage and succession. However, having separate laws for marriage, adoption, succession and so on based on religious orientation have presented us with unique problems. From polygamy to discrepancies in maintenance, personal laws have perpetuated weeds of inequality and conflict. This problem extends even to the codification of the Hindu scheme of succession.

One of the many challenges that the codification presents us with is the subordination of traditional customary succession. It risks eroding cultural sentiments and negatively affecting the diversity of our civilization. The profound sense of alienation and neglect experienced by communities whose traditional social structures are marginalized by the current legal framework is far from a triviality and this is what warrants speaking up for them. This paper has been designed as an advocacy for the rights of matrilineal communities to whom Hindu Succession Act, which is predominantly based on the Mitakshara and Dayabhaga schools is applicable at present.

KEYWORDS

Patriarchy, diversity, customs, succession.

PATRIARCHY IN PERSONAL LAWS

Patriarchy is a venomous seed. If sown in society, its growth leads to an infestation of weeds of inequality. Yet time and again, our legal framework becomes the very devil that sows these weeds into the fabric of the society unbeknownst that it may starve the society of its harmonious coexistence. Personal laws in India contain many patriarchal provisions that have been incorporated in the name of secularism and pluralism which recognize personal laws as integral to religious identity and thus, warrant non-interference under Article 25 of the Indian Constitution which guarantees the right to freely profess, practice, and propagate religion. Legitimization of polygamy exclusively for the Muslim community is one such example of a patriarchy reinforcing provision, that draws its legitimacy from personal laws and perpetuates inequality among the members of the society.

The succession scheme in India is no less infected from this contagion, yet it is often less criticized for being discriminatory and more awarded for being neutral. In India, the succession scheme of Hindus has been codified under the Hindu Succession Act of 1956, the Muslim scheme of succession remains uncodified and succession for Christians, Parsis and non-Hindus married under the Special Marriage Act of 1954 is codified under the Indian Succession Act of 1925. Codification is a practice intended to help laws maintain principles of equality and keep up with societal shifts, however, the Hindu Succession Act of 1956, a code primarily based on the Mitakshara and Dayabhaga schools reinforces discriminatory practices and gender inequality through its separate schemes of succession for men and women and the concept of coparcenary which despite all amendments, still exclude women married into the family to be regarded as coparceners or joint heirs under Section 6. Before the 2005 amendment, these provisions were even more discriminatory as daughters born in the family were also not regarded as coparceners or joint heirs to the coparcenary property and could also not act as Karta for the Hindu Undivided Family even if they were the eldest living member of the family.

CUSTOMARY SCHEMES OF SUCCESSION

Despite these repercussions of the Act, it has been prioritised not just over state legislations but also alternate schemes of succession that are not as discriminatory. The customary succession schemes in many regions of India has been superseded by the Hindu Succession Act. For example, Section 7 of the Hindu Succession Act of 1956 bars the application of Marumakkattayam and Aliyasantana law to any Hindu to whom such law applies and prescribes that property of such Hindus shall devolve as per the testamentary and intestate succession scheme prescribed under the Act. It has not only forced them to adapt to new laws on inheritance as opposed to practising their own customary laws but has also firmed the ground for patriarchy in the daily affairs of such communities. While Section 17 of the Hindu Succession Act, 1956 makes attempts to prioritize the mother’s line ahead of the father’s line for such Hindus (by adding cognates to the list of legal heirs in male intestate succession and by preferring mother of the deceased female over her husband in female intestate succession), it barely incorporates the full "rigour" of the traditional matrilineal system.

The Marumakkattayam system of inheritance which draws its legitimacy from various sacred local Hindu texts and is followed by the Nair community in Kerala, is a matrilineal system where property flows from a woman to her sister’s children. Similarly, Aliya Santana is also a matrilineal scheme of succession followed in the Tulu Nadu region among communities such as the Bunts and Billavas. Under this system, the property of an intestate female devolves upon her lineal descendants, failing whom it passes to her mother's kavaru and husband, and thereafter to her maternal grandmother. The property of an intestate male devolves upon his mother, widow(s), and lineal descendants; in their absence, it passes to his mother's kavaru, then to his father and maternal grandmother's kavaru, and finally to his mother's maternal grandmother.

These systems are very different from the patrilineal coparcenary system central to the Mitakshara and Dayabhaga schools. Thus, bringing them under the cohorts of the Hindu Succession Act, not only negatively affects the diversity they bring to the landscape of India but also risks restricting their traditional autonomy. Furthermore, matrilineal succession schemes are also important tools to empower women and make them financially independent in an otherwise patriarchal societal set up. Thus, their systems provide the social fabric necessary to hold the various threads of Indian Social Justice system intact. Like there are temples only accessible by women, these systems of inheritance favour women and have been wrongfully restrained and replaced by the more discriminatory provisions of the Hindu Succession Act. It is thus necessary not just for maintaining the customary legacy of such communities but also for providing women with an equitable chance of survival and growth, that the matrilineal systems under section 7 of the Hindu Succession Act be allowed to practice their schemes of succession.

STATE LEGISLATIONS AND THEIR IMPOTENCE

While state legislations had originally been enacted to uphold the sui generis nature of succession in these communities, they stood repealed once the Hindu Succession Act was enacted. In Mary Roy v. State of Kerala, the Hon’ble Court applied Indian Succession Act, 1925, a central legislation, to Syrian Christians in Travancore in place of the more discriminatory Travancore Act of 1916. While this decision was primarily aimed at remedying inequity and did not, on its own, establish a general rule that central laws are always preferred over local ones, however, the Indian Constitution provides a clear hierarchy for such matters. "Wills, intestacy and succession" are enumerated in Entry 5 of the Concurrent List (List III), granting both Parliament and State Legislatures the authority to enact laws. According to the doctrine of repugnancy established in Article 254(1), when a central law is enacted on the same subject and is contrary to an existing state law, the central law prevails, and the state legislation is rendered void or impliedly repealed to the extent of that inconsistency. Thus, courts put heavy weight on central legislations over state legislations in matters relating to personal laws. In the case Jose Coutinho v. Maria Luiza Valentina Pereira, the Hon’ble court held that Goa Civil Code will be given preference over Indian Succession Act in matters relating to succession for the citizens of Goa. However, a Civil Code in a state is different from a state legislation and thus, the ratio of this case cannot be used to make the case of such Hindus to whom Mitakshara and Dayabhaga schools of law are not applicable.

ALTERNATIVE REMEDY

Section 2 of the Hindu Succession Act, 1956, defines the scope of the Act by specifying the persons to whom it applies. It applies to all Hindus, including Virashaivas, Lingayats, and followers of the Brahmo, Prarthana, and Arya Samaj movements. It also extends to persons professing the Buddhist, Jain, or Sikh religions. Additionally, the Act applies to any person who is not a Muslim, Christian, Parsi, or Jew, unless it is established that such person would not have been governed by Hindu law or any custom or usage forming part of that law had the Act not been enacted.

The Explanation to Section 2 further clarifies who is to be regarded as a Hindu, Buddhist, Jain, or Sikh for the purposes of the Act. It includes legitimate and illegitimate children whose parents both belong to any of these religions, as well as children with one parent belonging to any of these religions, provided they are brought up as members of that religious community. The Act also applies to persons who have converted or reconverted to Hinduism, Buddhism, Jainism, or Sikhism.

It is pertinent to note that under Section 2(2) of the Act, a carve-out has been made, to exclude the members of any Scheduled Tribe (as defined by Article 366 of the Constitution) from the applicability of the Act. This exemption remains in force unless the Central Government specifically issues a notification in the Official Gazette directing otherwise.

In the context of the above policy problem related to Hindus to whom Marumakkattayam and Aliya Sanatana law applies, it is suggested that to effectively protect the distinct cultural and legal heritage of these matrilineal communities, a strategic amendment could involve inserting a "carve-out" clause similar to the one that exempts Scheduled Tribes under Section 2. However, the mere inclusion of these communities in the list of exempted groups under Section 2 would be functionally hollow without the concurrent repeal of Section 7 and Section 17 which will then come in direct conflict with the inserted clause and create considerable difficulties for judicial officers to ascertain whether to apply Hindu Succession Act or Marumakkattayam or Aliya Santana systems.

Thus, to assimilate the special practices of such communities into the accepted framework of succession laws in India without any conflict to the existing provisions in the Hindu Succession Act and otherwise, an alternative and more effective course of action is to exclude these communities from the Act’s applicability by inserting a specific ‘carve-out clause’ under Section 2 of the Hindu Succession Act of 1956 intended to exclude Marumakkattayam and Aliya Santana systems from the Act’s applicability. When combined with an amendment to repeal Section 7 and Section 17, this shall serve as a successful step in preventing the wrongful curtailment of these matrilineal communities and their unique practices.

THE CASE FOR UNIFORMITY

The other side of the debate has long contended that incorporating traditional schemes of succession runs the risk of "diversifying law" and “increasing legal complexities". Proponents of the Hindu Succession Act (HSA), 1956, even argue that the Act actually represents a monumental advance for women’s rights. Furthermore, there is a legitimate concern that granting community-specific exemptions under Section 2(2) could create a precedent for other groups to claim similar "carve-outs," potentially fracturing the cohesive legal identity the Act sought to build.

However, a deconstruction of this "proposed uniformity" under the Hindu Succession Act reveals that it has often functioned as a "tyranny of the majority" where the popularly followed schools were given preference over the unique social structures of matrilineal communities. Furthermore, the concern regarding claim for similar grants is also without merit as Justice cannot be denied just because it is likely that others would also want to claim it. Justice is for all who claim it and thus, the number of claimants should not discourage its delivery.

Incorporation of matrilineal communities to the unified framework under the Hindu Succession Act in one way reinforces uniformity as it proposes a framework that will most likely result in harmonious coexistence and provide unity while preserving the diversity of our civilization. Thus, to claim that incorporation of matrilineal communities and their practices in the legal framework of our country risks affecting uniformity is logically incoherent and sets the wrong tone for advocating for uniform legal frameworks.

CONCLUSION

Matrilineal systems of succession in India represent unique customary traditions that have accorded women a central position in the family and in property allocation. The curtailment of these systems under the Hindu Succession Act, 1956, not only negatively affects the diversity and traditional autonomy principles in our nation but also reinforces gender discrimination. Furthermore, the claims that the present framework is necessary to prevent fragmentation have wrongfully assumed that uniformity lies in biased Codes. This paper argues that incorporation of these communities will naturally result in harmonious coexistence and thus would provide unity while preserving the diversity in our civilization. It is thus in the interests of justice, equity and conscience that these communities and their special practices be amalgamated in  the present legal framework and to realize this incorporation, it is proposed that an amendment at the national level that repeals Section 7 of the Hindu Succession Act, and amends Section 2 to include customary matrilineal systems of succession in the list of those who are exempt from the Act's applicability, be made.

*The Author is a third- year law student pursuing B. Com. LL.B. at Jindal Global Law School.

The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.