In 2020, the State Legislature of Uttar Pradesh passed the U.P. Revenue Code (Amendment) Act, 2020 which received the assent of the Governor on 28-8-2020. The much welcomed, progressive and liberative Amendment Act recognised rights of the third gender in matters regarding property ownership, inheritance and succession which before any such amendment were available only to male and female members of the society. However, the amendment fails to put an end to the preferential treatment given under Sections 108, 109, 110 and 112of the U.P. Revenue Code, 2006 to the male relatives and unmarried women relatives in line of succession, the 2006 Code discriminates the married women relatives to their disadvantage by placing them on lower order of succession.
Section 108(1) lays down the principles to be followed for devolution of holdings of a male bhumidhar, asami or government lessee, it reads out to realise a preference in treatment of the heirs mentioned in any preceding clause of Section 108(2), it further states that the heirs in preceding clauses shall inherit exclusively and irrespective of the rights of heirs mentioned in succeeding clauses, that is to say, those in clause (a) shall be preferred to those in clause (b) and so on, in succession.
The abovesaid principles when put into action give out a discriminating effect against the married female class, due to the arrangement of heirs in Section 108(2) extracted below:
(2) The following relatives of the male third gender bhumidhar, asami or government lessee are heirs subject to the provisions of sub-section (1), namely–
(a) Widow, or third gender spouse, unmarried daughters, third gender issue and the male lineal descendants in the male line of descent per stirpes:
Provided that widow, unmarried daughters, third gender issue and sons howsoever low shall inherit per stripes the share which would have devolved upon the predeceased son had he been alive.
(b) Mother and father.
(c) Married daughter.
(d) Brother, unmarried sister, third gender sibling being respectively the son and daughter, third gender issue of the same father as the deceased, and son, unmarried daughter, third gender issue of predeceased brother, the predeceased brother, having been the son of the same father as the deceased.
(e) Son’s daughter and third gender issue.
(f) Father’s mother and father’s father.
(g) Daughter’s son, third gender issue and unmarried daughter.
(h) Married sister.
(i) Half-sister, being the daughter of the same father as the deceased.
(j) Sister’s son, third gender issue and unmarried daughter.
(k) Half-sister’s son, third gender issue and unmarried daughter the sister having been the daughter of the same father as the deceased.
(l) Brother’s son’s son, third gender issue and unmarried daughter.
(m) Father’s father’s son, third gender issue and unmarried daughter.
(n) Father’s father’s son’s son, third gender issue and unmarried daughter.
(o) Mother’s mother’s son, third gender issue and unmarried daughter.
The above arrangement is purposefully arranged to deprive the married female relatives of the bhumidhar, asami or government lessee from inheriting holdings at par with other relatives to protect and safeguard the holdings from alienation.
Section 109 of the 2006 Code lays down the provisions regarding succession to women inheriting interest as a female heir. Under the scheme of this section where before or after the commencement of the Code, any woman inherits the interest of a male [third gender] bhumidhar, asami or government lessee in any holding and such woman dies, marries or remarries after such commencement then, her interest in the holding shall, subject to the provisions of Sections 107 and 112, devolve upon the nearest surviving heir of the last male [third gender] bhumidhar, asami or government lessee. The words and expression, “nearest surviving heir” are to be understood as per the provisions of the abovestated Section 108. In case any woman inherits as a daughter, who has a surviving heir as mentioned in clause (a) of Section 110 then her interest shall devolve upon such surviving heirs, preferring the nearer heir against the remoter in same branch and excluding a widow who has remarried.
In the above set-up, it is evident even from blind eyes that a woman is made to choose between her right of inheritance and her right to marry or remarry and upon her death if she has no surviving heirs, her interest in the holding shall devolve upon the nearest surviving heir of the last male [third gender] bhumidhar, asami or government lessee.
The arrangement of heirs of a female bhumidhar, asami or government lessee under Section 110 of the 2006 Code again classifies on sex and marital status of heirs, it becomes immaterial of what marital status a male heir holds but it is imperative to determine the marital status of a female heir before she can even stand in line for succession, here again from protecting the holding from alienation.
Under Section 112 if two or more co-widows inherit the interest of a male tenure-holder, and any one of them dies or remarries without leaving any heir entitled to succeed in accordance with Section 108, the interest of such co-widow shall pass by survivorship to the surviving widow and where there are two or more surviving co-widows, then to the surviving co-widows in equal shares.
Therefore, in case a widow chooses to remarry she has to waive off her claim to the holding, if wanting to retain her interests, she must opt out of a resettlement in life and continue to live with the misery of a widow.
Bharat Ratna Dr B.R. Ambedkar stated, on the floor of the Constituent Assembly that in future both the legislature and the executive should not pay mere lip service to the directive principles but they should be made the bastion of all executive and legislative actions. Legislative and executive actions must be conformable to and effectuation of the fundamental rights guaranteed in Part III and the directive principles of State policy enshrined in Part IV and the Preamble of the Constitution which constitutes conscience of the Constitution. Covenants of the United Nations Organisation (UNO) add impetus and urgency to eliminate gender-based obstacles and discrimination. Legislative action should be devised suitably to constellate economic empowerment of women in socio-economic restructure for establishing egalitarian social order. Law is an instrument of social change as well as the defender for social change. Article 2(e) of CEDAW enjoins the courts to breathe life into the dry bones of the Constitution, international conventions and the Protection of Human Rights Act, 1993 and to prevent gender-based discrimination and to effectuate right to life including empowerment of economic, social and cultural rights to women.
The friction in law
I. The bare text of law
A. International law
The General Assembly of the United Nations adopted a declaration on 4-12-1986 entitled “The Declaration on the Right to Development” in which India played a crusading role for its adoption and ratified the same. Its preamble recognises that all human rights and fundamental freedoms are indivisible and independent. Article 1(1) assures right to development an inalienable human right, by virtue of which every person and all people are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development in which all human rights and fundamental freedoms can be fully realised. Article 6(1) obligates the State to observance of all human rights and fundamental freedoms for all without any discrimination as to race, sex, language or religion. Sub-article (2) enjoins that … equal attention and urgent consideration should be given to implement, promote and protect civil, political, economic, social and cultural rights.
Vienna Declaration on the Elimination of All Forms of Discrimination against Women (for short “CEDAW”) was ratified by the UNO on 18-12-1979. The Government of India which was an active participant to CEDAW ratified it on 19-6-1993 and acceded to CEDAW on 8-8-1993 with reservation on Articles 5(e), 16(1), 16(2) and 29 of CEDAW. The preamble of CEDAW reiterates that discrimination against women violates the principles of equality of rights and respect for human dignity; is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country; hampers the growth of the personality from society and family and makes more difficult for the full development of potentialities of women in the service of their countries and of humanity. Poverty of women is a handicap. Establishment of a new international economic order based on equality and justice will contribute significantly towards the promotion of equality between men and women, etc. Article defines discrimination against women to mean “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”. Article 2(b) enjoins the States parties while condemning discrimination against women in all its forms, to pursue, by appropriate means, without delay, elimination of discrimination against women by adopting “appropriate legislative and other measures including sanctions where appropriate, prohibiting all discrimination against women”. To take all appropriate measures including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women. Clause (c) enjoins to ensure legal protection of the rights of women on equal basis with men through constituted national tribunals and other public institutions against any act of discrimination to provide effective protection to women. Article 3 enjoins States parties that it shall take, in all fields, in particular, in the political, social, economic and cultural fields, all appropriate measures including legislation to ensure full development and advancement of women for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on the basis of equality with men. Article 13 states that “the States parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular”. Article 14 laid emphasis to eliminate discrimination on the problems faced by rural women so as to enable them to play in the economic survival of their families including their work in the non-monetised sectors of the economy and shall take all appropriate measures. Participation in and benefit from rural development and, in particular, shall ensure to such women the right to participate in the development programme to organise self-groups and cooperatives to obtain equal access to economic opportunities through employment or self-employment, etc. Article 15(2) enjoins States parties to accord to women in equality with men before the law, in particular, to administer property.
Article 5(a) of CEDAW to which the Government of India expressed reservation, does not stand in its way and in fact Article 2(f) denudes its effect and enjoins to implement Article 2(f) read with its obligation undertaken under Articles 3, 14 and 15 of the Convention vis-à-vis Articles 1, 3, 6 and 8 of the Declaration on the Right to Development. The directive principles and fundamental rights, though provided the matrix for development of human personality and elimination of discrimination, these conventions add urgency and teeth for immediate implementation. It is, therefore, imperative of the State to eliminate obstacles, prohibit all gender-based discriminations as mandated by Articles 14 and 15 of the Constitution of India. By operation of Article 2(f) and other related articles of CEDAW, the State should take all appropriate measures including legislation to modify or abolish gender-based discrimination in the existing laws, regulations, customs and practices which constitute discrimination against women.
B. Domestic law
A combined reading of Articles 15(1) and (3) of the Constitution of India positively protects acts or actions made in favour of empowerment or upliftment of women. Article 21 of the Constitution of India reinforces “right to life”. Equality, dignity of person and right to development are inherent rights in every human being. Life in its expanded horizon includes all that gives meaning to a person’s life including culture, heritage and tradition with dignity of person. The fulfilment of that heritage in full measure would encompass the right to life. For its meaningfulness and purpose every woman is entitled to elimination of obstacles and discrimination based on gender for human development. Women are entitled to enjoy economic, social, cultural and political rights without discrimination and on a footing of equality. Equally in order to effectuate fundamental duty to develop scientific temper, humanism and the spirit of enquiry and to strive towards excellence in all spheres of individual and collective activities as enjoined in Articles 51-A(h) and (j) of the Constitution of India, facilities and opportunities not only are to be provided for, but also all forms of gender-based discrimination should be eliminated. It is a mandate to the State to do these acts. Property is one of the important endowments or natural assets to accord opportunity, source to develop personality, to be independent, right to equal status and dignity of person. Therefore, the State should create conditions and facilities conducive for women to realise the right to economic development including social and cultural rights.
The Hindu Succession (Amendment) Act, 2005 has availed the Hindu women coparcenary rights and thereby equal rights of succession as male coparceners, and being a central legislation, it enjoys primacy over any State law that may stand in contravention of it.
The U.P. Revenue Code, 2006, is a secular law that applies to all persons irrespective of their religion or belief. Therefore, the Hindus under the Hindu Succession Act, 1956 may draw significant benefits with regard to equal rights of succession, however there lies one area of discrimination which has not effectively been addressed by the 2005 Amendment.
Agriculture falls under the State List in the Seventh Schedule to the Constitution and therefore any law made by the State of Uttar Pradesh in this regard prevails over the Hindu Succession Act, in such a case the 2006 Code enjoys primacy over the central law and therefore the married and unmarried women are placed on different pedestals for succession and find themselves in a situation of second graders, similar is the case with members of the other religion and belief.
The Supreme Court of India in C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Swaminathaswami Thirukoil, observed that women have right to elimination of gender-based discrimination particularly in respect of property so as to attain economic empowerment, this forms a part of universal human rights that they have right to equality of status and opportunity which also forms part of the basic structure of the Constitution. Supreme Court is obliged to effectuate these rights of women, personal laws inconsistent with the constitutional mandates are void under Article 13.
In Valsamma Paul v. Cochin University, it was held that:
- Human rights are derived from the dignity and worth inherent in the human person. Human rights and fundamental freedoms have been reiterated in the Universal Declaration of Human Rights. Democracy, development and respect for human rights and fundamental freedoms are interdependent and have mutual reinforcement. The human rights for women, including girl child are, therefore, inalienable, integral and an indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth – cultural, social and economical. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights. Convention on the Elimination of All Forms of Discrimination Against Women (for short “CEDAW”) was ratified by the UNO on 18-12-1979 and the Government of India had ratified as an active participant on 19-6-1993 and acceded to CEDAW and reiterated that discrimination against women violates the principles of equality of rights and respect for human dignity and it is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country; it hampers the growth of the personality from society and family, making more difficult for the full development of potentialities of women in the service of the respective countries and of humanity.
In G. Sekar v. Geetha, the amendment introduced in Sections 6 and 23 of the Hindu Succession (Amendment) Act, 2005 was declared valid on the ground that the amendment is intended to achieve the object of Articles14 and 15 i.e. removal of gender inequality.
In C.B.Muthamma v. Union of India, it was held that in the face of equality of sexes being guaranteed under Articles 14 and 16(1), any rule which debars a married woman being appointed or requires a woman employee to resign on her marriage, would be struck down as unconstitutional, because there is no such corresponding bar in the case of men who, too, are likely to be involved on domestic commitments, on marriage.
In Vineeta Sharma v. Rakesh Sharma, the Court concluded as under:
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005.
(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the Act of 1956 or male relative of such female.
It is only reasonable to deduce that the classification of women based on their marital status to decide their place in the order of succession under the 2006 Code is violative of their rights recognised under Articles 14, 15, 16 and 21 as present in the constitutional schema. They cannot be made to choose between their right to marry and right to inherit property simply because such a mandate is against their dignity and an anathema to right to equality.
These issues having been much abated by the legal academia and even the Law Commission of India in its 174th, 204th and 208th Reports. After decades of legislative and judicial businesses, there still remains the stigma attached to inheritance of property by women, it is time that gender-based untouchability or second-grade treatment is done away with by way of social activism, targeted legislation and judicial guidance.
± 4th year student, Faculty of Law, BVDU, Pune.
 (1996) 8 SCC 525
 (1996) 3 SCC 545, 562-632
 (2009) 6 SCC 99
(1979) 4 SCC 260
 (2020) 9 SCC 1