The Gendered Legacy of Inheritance

**Sara Dharwadkar 

In India’s journey toward gender equality, the laws governing succession have been both a barometer and a battleground. The Hindu Succession (Amendment) Act, 2005 was enacted with an objective to remove gender discrimination and was regarded as a revolutionary step that heralded an era of woman empowerment with respect to property rights. Despite landmark judgements paving the way for the realization of this noble objective i.e. Vineeta Sharma v. Rakesh Sharma, 2020 which granted equal coparcenary rights to daughters – there still exist provisions embedded in patriarchal logic. 

One such provision – Section 15 of the Hindu Succession Act, 1956 (‘Section 15 HSA’) now stands before a three judge bench of the Supreme Court of India (‘SC’) under constitutional scrutiny.

This blog critiques the constitutional arguments on the matter, analyzes the legal principles involved, and argues that its explicit sex-based differentiation fails constitutional scrutiny. It also assesses whether and how the Court can strike down or modify the provision. 

Context

In 2018, a mother approached the Supreme Court after the Bombay High Court denied her claim to her deceased daughter’s property. Relying on the statutory scheme of Section 15 HSA, the High Court held that the husband and his heirs have the right to the self-acquired property of a Hindu woman before the woman’s own parents. Though the dispute was ultimately resolved out of court, the SC agreed to hear the writ petition in Kamal Anant Khopkar v. Union of India, 2018 (‘Khopkar’) challenging the constitutionality of Section 15 HSA. 

However, this dispute is not just another property dispute for, at the heart of this writ petition lies a powerful question: does the Hindu Succession Act treat a Hindu woman’s birth family as less significant to her legacy than her marital family?

Statutory Scheme of the Section

Section 15 of the HSA lays down a special order of succession for a married Hindu woman who dies intestate. In particular, Section 15 (1) states that if a married woman dies intestate her property first devolves to her children and her husband; in their absence, it devolves to the heirs of the husband (e.g. the woman’s in laws) and only in their absence does it pass to the deceased woman’s own parents. 

Section 15 (2) establishes a ‘source rule’ which states that the property inherited by a woman from her husband will pass down to her husband’s heirs and property inherited from her father revert to her father’s heirs – infact, even the property she inherits from her mother reverts to her father’s heirs.

As per Section 15 HSA, the husband’s and father’s heirs are given greater priority than the woman’s own kin. It makes a preposterous and antiquated presumption – that the woman has no family of her own and that she ‘belongs’ to either the family of her father or husband. 

Tale of Two Schemes: Section 15 HSA vis a vis Section 8 HAS

Indian personal laws have had a history of treating men and women unequally. In the present context, this argument can be substantiated by juxtaposing Section 15 HSA which governs intestate succession of a Hindu woman’s self-acquired property with Section 8 HSA which governs the succession of a Hindu male’s property. The contrast in these two provisions is glaring: while a Hindu male’s mother and father are among the first few heirs, a Hindu woman’s parents only acquire the same right after the right of her husband’s heirs is extinguished. Critically, there is also no reciprocal provision in Section 8 HSA for the wife’s heirs inheriting the husband’s property whatsoever. 

The asymmetry is clear – Section 15 HSA gives the Hindu woman’s husband’s heirs a priority over her own parents whereas Section 8 HSA gives the Hindu male’s blood relatives (including his parents) a greater priority than those of the woman. 

Judicial History 

The judicial response on this matter up until now has been mixed. 

One of the earliest constitutional challenges to Section 15 HSA was made in Sonubai Yeshwant Jadhay v. Bala Govinda Yadav And Ors.,1983 where the Bombay High Court (‘Bombay HC’) held that marriage results in the creation of ‘one family’ hence the woman’s property should remain in the husband’s line because they become one unit after marriage. The Court relied on the ratio laid down in State of Bombay v. Narasu Appa Mali, 1952 which notes that personal law is placed in a distinct category and treating Hindu women differently within that class does not amount to discrimination under Article 15. 

In 2012, the Bombay HC delivered one of the most explicit acknowledgements of the Section 15 HSA being unconstitutionally discriminatory. In Mamta Dinesh Vakil v. Bansi S. Wadhwa, 2012 the Court found that Section 15 HSA makes a classification solely based on sex and marital status; it imagines a different succession regime only for a Hindu female and classifies her heirs strictly on the grounds of her sex and marital status. 

Omprakash v. Radhacharan, 2009 is the best example to demonstrate the extent to which Section 15 impairs the rights of women. A woman expelled by her in-laws and supported by her parents still lost her inheritance to her husband’s heirs as a result of the succession scheme imagined by Section 15. 

Infact, The Law Commission of India (204^th Report, 2008) itself has called for a reversal of the order in Section 15 (1) to place the woman’s natal family above the husband’s heirs in cases of her self-acquired property.

The Constitutional Argument – Why Section 15 HSA Is Vulnerable

Why Classification on the Basis of ‘Sex – Marriage’ Fails The Reasonable Classification Test Under Article 14

Article 14 of the Indian Constitution guarantees “equality before the law and equal protection of laws.”  When a law makes a differentiation between two classes of people, it must pass Article 14’s ‘reasonable classification’ test as laid down in the State of Punjab v. Darvinder Singh (‘Darvinder Singh’) This test requires that such differentiation be made on the basis of (1) intelligible differential, (2) have a rational nexus with the objective of the Act and (3) it must not be arbitrary and must serve substantive equality in line with the transformative goals of the constitution.

Section 15’s primary basis of distinction is sex – it applies differently to women combined with their marital status. This is not a neutral kinship based category but an explicitly gendered classification which rests on outdated notions of marital relations thereby failing at the threshold.  Darvinder Singh implores that the legislative purpose itself must be constitutionally valid. If the objective itself perpetuates stereotypes – it cannot be saved by using the excuse of ‘reasonable classification.’

Moreover, Section 15 is both underinclusive and overinclusive. It allows estranged or distant relatives of a woman’s husband to inherit her property and excludes the woman’s own maternal kin at the behest of her husband’s heirs. The reasonable classification test argues exactly against these overbroad generalisations. 

It is also important to note that Section 15 fails the idea that  laws should dismantle and not preserve systematic disadvantage. Any classification that exacerbates pre-existing disadvantages is constitutionally infirm as per the principles of the  reasonable classification test. 

Therefore, such classification bears no link to preserve ‘familial unity’ as argued by the defence ; it funnels a woman’s property into the husband’s lineage arbitrarily (since the same rules do not apply to a man) with even estranged or abusive inlaws inheriting a woman’s property over her own family. 

Why Protecting Family Ties Does Not Save Section 15 From Article 15 Challenge

Article 15 of the Indian Constitution is more specific. It guarantees protection from discrimination on the basis of any grounds – “religion, caste, race, sex…” Though early rulings have taken a narrow view, affirming the constitutionality of “sex-plus” interpretations over time, courts have recognised that these rationales often mask gendered stereotypes. 

Now, under the standard laid down in Anuj Garg & Ors v. Hotel Association Of India, 2007 (‘Anuj Garg’) gender-based differentiation (“sex plus differentiation”) needs to be justified with a tightly tailored objective; tradition and social norms simply do not suffice. This is famously known as suspect classification which triggers strict scrutiny. Moreover, the assumption that a woman’s identity is unified with that of her husband after marriage is exactly the kind of patriarchal stereotype that the SC has tried to famously repudiate in Joseph Shine v. Union of India, 2018. 

Legal Scholar Zahra Ahmad’s work on intersectionality in India reminds us that discrimination isn’t a sum of parts but is a compounded reality. An individual’s sex, marital status, caste and ability come together to shape their experiences and increase the impact of discrimination. Therefore, the Constitution’s guarantee of equality must not be applied in the isolation of intersectionality. This underscores that legal standards cannot silo sex from marital status or other markers; instead, enriched scrutiny is needed to capture the nuanced realities of oppression.

The idea that marriage dismantles only a woman’s natal ties and subsumes her into the husband’s lineage is fundamentally outdated. A purposive reading of Section 15 must therefore recognise kinship as plural and bi‑directional: legal defaults should not presume a female intestate’s identification with her husband’s family to the exclusion of her blood relations.

Protector of Fundamental Rights- What Can The Supreme Court Do Now? 

Where personal laws have perpetuated sex – based discrimination, the Apex Court has not hesitated to strike them down. In Mrs. Mary Roy v. State of Kerala, 1986, Justice P.N. Bhagwati held the provision limiting women’s inheritance to token amounts under the Travancore Christian Succession Act, 1916  as unconstitutional. 

Shayara Bano v. Union of India, 2017 with its 3:2 constitutional verdict struck down the ‘talaq – e – biddat’ holding it to be unconstitutional ; the SC in this case outrightly denounced personal law immunity relying on the principle of constitutional subservience under Article 13. 

In Navtej Singh Johar v. Union of India, 2018 (‘Navtej’) the SC declared Section 377 of the Indian Penal Code, 1860 as unconstitutional for criminalising same sex conduct. Interlacing fundamental rights with the principle of constitutional morality as opposed to majoritarian notions of public morality, it allowed for an authoritative constitutional re-examination of inherently discriminatory laws. 

The judgment in Vineeta Sharma v. Rakesh Sharma, 2020 (‘Vineeta’) asserted that the amendment to Section 6 HSA instating daughters as coparceners by birth applies retroactively. Overruling prior restrictive readings, anchoring its rationale in equality under Articles 14 and 15 of the Constitution. 

Recently, the Rajasthan High Court in Manni Devi v. State of Rajasthan, 2025 deemed statutory exclusion of a tribal woman whose inheritance claim was denied on the basis of Section 2(2) HSA’s exclusion of Scheduled Tribes as manifestly unjustified. Underscoring that gender based exclusion in succession is constitutionally untenable even if it is embedded in custom or sociological application.

When personal laws or statutes contravene equality or dignity, the Court has shown both the legal authority and the moral obligation to act ; whether through outright invalidation (Navtej), interpretative expansion (Vineeta) or evidence-based challenge and legislative prompting (Manni Devi). These judgments validate the Supreme Court’s capacity and obligation to interpret personal laws through the prism of constitutional morality, not patriarchal inertia. 

In this context, the challenge to Section 15 of the Hindu Succession Act is not unprecedented; rather, it sits squarely within an established template of constitutional adjudication. Section 15’s sex-plus classification, elevation of in-laws over a woman’s natal family, and underpinning in patriarchal presumption is constitutionally indistinguishable from the discriminatory provisions invalidated in these precedents.

Therefore, the Supreme Court can and must take action by employing the same transformative vision, interpretative remedies, and doctrinal clarity enshrined in its precedents. The Court has the authority to realign the statute with Articles 14, 15, and 21 by severing, reading down, or invalidating the offending clause. Doing so would reaffirm the principle that personal law is not a sanctuary for sexism but it is subject to the Constitution’s superior command.

**Sara Dharwadkar is a third-year B.B.A. LL.B. (Hons.) student at Gujarat National Law University. Passionate about using law as a tool for equitable change, Sara aims to work at the nexus of legal frameworks and policy reform to craft solutions that are both impactful and implementable.

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.