Hindu Succession Act: Bad in law to deprive tribal woman share in father’s assets, says SC

Lamenting the continuance of the provision after seven decades of India’s Independence, a bench of justices MR Shah and Krishna Murari said that “not to grant the benefit of survivorship to the daughter in the property of the father can be said to be bad in law and cannot be justified”.

It is “bad in law” to deprive a woman of her right in the father’s property, the Supreme Court emphasised on Friday, asking the Union government to consider amending the Hindu Succession Act (HSA) which disqualifies a scheduled tribe (ST) woman from being considered on par with male counterparts in matters of her share in the paternal property.

The bench, which was dealing with an appeal by a woman who was deprived of her share in the compensation with respect to a land that belonged to her father, said that there may not be any justification to deny the right of survivorship so far as the female member of STs are concerned. (HT Archive)

A pertinent provision of the HSA lays down that the law of succession shall not apply to the members of STs unless the Central Government, by notification in the Official Gazette, otherwise directs. The provision thus entails that a daughter in a ST community cannot legally demand her share in the father’s property.

Lamenting the continuance of the provision after seven decades of India’s Independence, a bench of justices MR Shah and Krishna Murari said that “not to grant the benefit of survivorship to the daughter in the property of the father can be said to be bad in law and cannot be justified”.

The bench, which was dealing with an appeal by a woman who was deprived of her share in the compensation with respect to a land that belonged to her father, said that there may not be any justification to deny the right of survivorship so far as the female member of STs are concerned.

Invoking the constitutional principle of right to equality, the bench flagged that when the daughter belonging to non-­tribal groups is entitled to an equal share in the property of the father, there is no reason to deny such right to the daughter of the tribal communities.

“Female tribal is entitled to parity with male tribal in intestate succession. To deny the equal right to the daughter belonging to the tribal even after a period of 70 years of the Constitution of India under which the right to equality is guaranteed, it is high time for the Central Government to look into the matter and if required, to amend the provisions of the Hindu Succession Act by which the Act is not made applicable to the members of the Scheduled Tribes,” it said.

The court asked the Centre to examine whether it is “just and necessary” to withdraw the provision keeping STs out of the ambit of the succession law, denying a daughter of her legal right in the father’s property.

“We hope and trust that the Central Government will look into the matter and take an appropriate decision taking into consideration the right to equality guaranteed under Articles 14 (right to equality) and 21 (right to life and liberty) of the Constitution of India,” it said.

However, under the existing legal regime, the court regretted that it cannot pass an order to direct giving the woman petitioner a share in the compensation, underscoring that when there is a conflict between the law and equity, the law will prevail.

“If the claim of the appellant on the basis of the survivorship under the Hindu Succession Act is accepted in that case it would tantamount to amend the law. It is for the legislature to amend the law and not the court,” it noted.

The petitioner had challenged an order of the Orissa high court which had cited the provisions of HSA to deny her 1/5th share in the compensation granted in lieu of acquisition of a land belonging to her father. While her four brothers got the compensation, the high court said in October 2016 that she will not be entitled to a share since the HSA will not be applicable to her for being a member of a ST.

In her appeal, she argued that denial of right to succession to ST women would amount to deprivation of the right to livelihood under Article 21 of the Constitution of India, besides being a gross example of discrimination between a tribal and a non-tribal woman.