HINDU FEMALE LAW OF INHERITANCE UNDER HSA, DISCRIMINATORY PROVISIONS AND THE WAY FORWARD

INTRODUCTION The Hindu Family Law in India is a coalescence of numerous principles laid down in shastras and samritis that have been used over years in various statues and courts, in both pre-colonial and post-colonial times. Broadly, the Hindu family law in India is divided into two branches: the Mitakshara school of Hindu law and Dayabhaga school of thought. Historically, a joint family under Mitrakshara law consisted of coparcenary having four male lineal descendants who acquire an absolute right in the undivided property of the joint family upon birth. The eldest male in the family was usually the karma and managed the affairs of the family. Females couldn’t become coparceners and hence couldn’t become karma either. Under Dayabhaga school, the males in the family do not get a right in the property by birth. Instead, shares for both males and females are ascertained at the time of the death of the owner.

In 1937, The Hindu Women’s Right to Property Act came into force to address the inherent discrimination against women in the customary Mitakshara law. Under the Act, widow of a predeceased son and widow of a predeceased son’s predeceased son were entitled to a share in the property of the males they survived and were now also considered the simultaneous heirs or the preferential heirs of the Hindu dying. (S.A Desai, Mulla Principles of Hindu Law, 295, (Butterworths, New Delhi,