[This is a guest post by Kartik Kalra.]
During the hearing stages of the marriage equality case (Supriyo @ Supriya Chakraborty v. Union of India) before the Supreme Court, the Union has consistently highlighted the gendered language of the web of legislation governing marital relations, which includes the succession regime. This argument highlights the Court’s structural inability to redress the discriminatory character of the exclusion of same-sex marriage – even if the Court interprets Section 4(c) of the Special Marriage Act, 1954 (“SMA”) to permit same-sex marriages, the highly gendered web of legislation governing marital relations subsists. Since this web of legislation includes the law on succession, the argument proposes the Court’s abstention as the sole way of avoiding unanticipated complications. What happens when a Hindu homosexual couple marries – would they continue being a part of their respective Hindu Undivided Families (“HUF”)? When a gender-neutral interpretation of the SMA is offered, would the relationships stipulated in the orders of succession in the Hindu Succession Act, 1956 (“HSA”) and the Indian Succession Act, 1925 (“ISA”) be constructed similarly? In case this is done, would elements of classical Hindu law that permeate into legislation – especially in context of notional partitions u/s 6 of the HSA, also undergo interpretive changes?
In this piece, I examine the veracity of this, and propose that a gender-neutral construction of the ISA and HSA offers sufficient resolution. Since the HSA governs succession for Hindu unions pursuant to Section 21A of the SMA, I propose the extension of this interpretive choice to both the ISA and HSA in avoiding inter-se disparities among same-sex unions. In saving the SMA from unconstitutionality due to its exclusion of same-sex marriages, therefore, the Court must declare the extension of its gender-neutral interpretation of the words “widow” and “widower”, as they appear under the SMA, to both the ISA and HSA. Since the HSA (unlike the ISA) operates substantially within the gender binary, preventing the exclusion of Hindu transgender persons from the succession regime requires yet another declaration – the terms “male” and “female”, especially as they appear u/ss 8 and 15 of the HSA (defining the orders of succession), must be interpreted to include transgender persons based on their gender self-identification.
I make this argument in the following manner, using only extant statutory framework and doctrine – firstly, I propose the framework for succession under the ISA for inter-faith and non-Hindu same-sex unions; secondly, I propose the framework for succession under the HSA for Hindu same-sex unions; and thirdly, I propose that the ideal path for the Court to adopt, in order to prevent a disparity among same-sex unions inter-se, would be to mandate the continued application of the HSA to govern succession for Hindu same-sex unions.
A Preliminary Framework for Same-Sex Succession for Non-Hindus under the ISA
Section 21 of the SMA holds that succession to the property of any person whose marriage is solemnized therein would occur in accordance with the ISA, meaning that the personal laws of neither partner apply in the devolution of property. An exception is carved u/s 21A, which states that when two Hindus marry under the SMA, the HSA governs their succession. The HSA, however, won’t be applicable when a Hindu marries a non-Hindu, given Section 19 calling for their severance from the HUF. On the other hand, when two Muslims, Parsis, Christians or Jews marry under the SMA, the ISA applies with full force given Section 21, while retaining their membership of their respective households given the absence of an equivalent Section 19. The law governing succession for two kinds of marriages under the SMA – those between a Hindu and a non-Hindu; and those among non-Hindus – is found in Chapter II of the ISA, which I shall demonstrate to be as efficaciously applicable to same-sex unions using the gender-neutral interpretation of the terms “widow” and “widower” u/ss 33 and 35 of the ISA. The law is quite simple, which is as follows:
- Section 33(a) of the ISA – In the presence of widow and lineal descendants, the former takes a one-third share, and the latter take two-thirds collectively;
- Section 33(b) of the ISA – In the absence of lineal descendants, but the presence of widow and kindred, the former takes one-half, while the latter take the remaining one-half collectively.
While Section 33 of the ISA uses the term “widow” to signify the spouse, Section 35 equates the rights of the widow and the widower. Any reference to the rights of a widow, therefore, also constitutes a reference to those of the widower. This already makes matters quite simple – a reference to a male’s “widow”, pursuant to extant statutory framework, can be interpreted as a reference to their widower. Likewise, a reference to the rights of a female’s “widower” can be interpreted as one to their “widow”. The succession regime under the ISA also prevents the exclusion of transgender persons – a single order of succession is envisioned for all persons, irrespective of their gender or sex identities. For clarity on spousal shares in succession for same-sex unions, consider the following illustrations:
A, a Muslim male, marries B, a Parsi trans-man under the SMA. A dies, leaving behind B, two adopted sons, two adopted daughters, his mother, father, brother and sister.
Here, given the application of Section 21 of the SMA, succession occurs u/s 33 of the ISA. In the presence of lineal descendants, kindred are excluded. On this basis, A’s mother, father, brother and sister are excluded. B, being A’s “spouse” under the reinterpreted succession regime, takes a one-third share. The two adopted sons and two adopted daughters take a two-thirds collectively.
C, a Christian trans-woman, marries D, a Muslim female under the SMA. D dies, leaving behind C, one adopted son, two adopted daughters, her mother, father, brother and sister.
Here, given the presence of lineal descendants, kindred are excluded. C, being D’s “spouse”, takes one-third. The adopted son and two adopted daughters take two-thirds collectively.
From these two examples, it can be seen that the regime contained u/s 33 of the ISA, along with a gender-neutral interpretation of Section 35, makes matters quite simple for intestate succession for same-sex unions without requiring substantial legislative intervention. Matters may not be as simple for Hindu homosexual unions, both in terms of the inclusion of transgender persons and the highly gendered order of succession contained in the Schedule. I discuss this in the following section.
A Preliminary Framework for Succession for Hindu Homosexual Unions
Given the greater complexity of succession under the HSA, I propose a framework for same-sex succession specifically for Hindu same-sex unions in this section. In order to do so, firstly, I examine succession under the HSA in general (sub-section A); secondly, I evaluate the use of the HSA to undertake same-sex succession (sub-section B); and thirdly, I discern some anomalies arising from a gender-neutral interpretation of the HSA (sub-section C).
As noted above, Section 21A of the SMA mandates the HSA’s continued application to two Hindus who marry therein. This section, inserted in 1976, serves the purpose of preserving the HUF. It claims to do so by excluding the application of severance-based disability generated by Section 19, retaining the Hindu’s membership of the HUF if they marry another Hindu. The solemnization of a Hindu homosexual union under the SMA, therefore, mandates the application of the HSA to govern the marital parties’ succession.
The HSA retains the Mitakshara-based distinction between Joint Family Property (“JFP”) and separate property, with the former referring to property held jointly by the coparcenary – a managerial unit overseeing the property’s economic well-being. The coparcenary, following the Hindu Succession (Amendment) Act, 2005, consists of sons and daughters of up to three degrees of lineal descent, who possess a share in the JFP. The first stage of devolution occurs using a process called a notional partition, which crystallizes the coparceners’ shares in the JFP immediately prior to the coparcener’s death. Following the crystallization of all coparceners’ shares, the second stage concerns the devolution of the deceased coparcener’s share on their heirs according to the order stipulated u/s 8 of the HSA r/w the Schedule if they identify as “male”; and according to the order stipulated u/s 15 of the HSA if they identify as “female”.
In Uttam v. Saubhag Singh, the Supreme Court held that a property loses its character as JFP once it devolves u/s 8, meaning that the devolution of a single coparcener’s share in the JFP may alter its identity . The inheritors, however, are free to restart their own HUF, which carries a very low threshold as held in Commissioner of Wealth Tax v. R. Sridharan . In that case, a Hindu man married a Christian woman under the SMA, claiming to have begun an HUF with himself and his son as coparceners. The Court accepted his contention, holding that the petitioner must only discharge the burden of being a Hindu u/s 2(c) of the HSA . This was quite easy to prove, given its extremely low threshold according to the standards in Yagnapurushadji v. Muldas . On this basis, while all property devolving u/s 8 at the death of any coparcener becomes separate property in the hands of coparcenary heirs, those heirs can restart their HUF. Lastly, it must be noted that one’s membership of the HUF (and the coparcenary) is immune from decisions to the contrary made by its remaining members, irrespective of the grounds of such a decision. The HSA contains an exhaustive list of factors disqualifying one from succeeding – murdering the person whose property one wishes to inherit; and being a descendant of one who ceased to be a Hindu. Section 28 of the HSA is explicit in holding that “[n]o person shall be disqualified from succeeding…on any other ground whatsoever”, emphasizing the exhaustive character of the HSA’s two disqualifications. On this basis, therefore, the HUF’s objections to a same-sex marriage carry no implications for the marital parties’ right to succeed to JFP.
Same-Sex Succession under the HSA
The rules for intestate succession for males and females are provided differently under the HSA, couched in gendered terms – the property of a “male Hindu” devolves upon the “widow”; the property of a “female Hindu” devolves upon the “widower”. In case the Court holds that these terms must be construed as “spouse” to save them from unconstitutionality, devolution for a same-sex female union would be covered u/s 15, and for a same-sex male union u/s 8. This interpretive choice will extend to transgender persons in the manner done by Arunkumar v. Inspector General of Registration – one’s gender self-identification would determine their status as “male” or “female” for the purposes of the order of succession. A transgender woman may be regarded as “female”, and a transgender man as “male” for determining the applicable order of succession. While this resolution is unsatisfactory due to its reduction of diverse identities into the gender binary, its purpose is to demonstrate the Court’s ability to secure sufficient equality using its gender-neutral interpretive framework. The argument proposing the Court’s structural inability in securing equality in matters of succession, therefore, is weak.
I now discuss concrete scenarios demonstrating the functionality of the gender-neutral interpretation of the succession regime. For the male union, the spouse of the deceased would inherit simultaneously with the deceased’s other Class I heirs specified in the Schedule. For the female union, the spouse of the deceased would inherit simultaneously with their sons and daughters, to the exclusion of all others. Consider the following illustrations:
A, a Hindu trans-woman, marries B, a Hindu female under the SMA. A dies, leaving behind B, two daughters D1 and D2, two sons S1 and S2, her brother, and her sister.
A, being a trans-woman, would be regarded as “female” pursuant to the gender-neutral interpretive framework. The coparcenary shares of D1, D2, S1 and S2 would be crystallized, and an equal share conferred on B pursuant to Gurupad v. Hirabai. In that case, the Court held that the widow is entitled to a share equal to that of the sons when undertaking a notional partition, since the notional partition occurs in accordance with rules of classical Hindu law mandating the same . The HSA, as amended by the Hindu Succession (Amendment) Act, 2005, states that all references to “sons” be construed as those to “daughters”, leading to an interesting amalgam of classical Hindu law and the HSA. In this amalgam, the spouse (B) is entitled to a share equal to the sons’ and daughters’ coparcenary shares. The gender-neutral construction of the term “widow”, therefore, must be taken to its logical conclusion, and prior doctrine on devolution of property be interpreted to maximize the rights of same-sex unions.
When this notional partition is undertaken, the sons and daughters, along with B, get one-sixth each. This one-sixth, according to Saubhag Singh, is their separate property. At the second stage of devolving the deceased’s share in the coparcenary, A’s own one-sixth devolves upon their heirs u/s 15. This devolves upon the sons and daughters along with B u/s 16, giving them an additional share of one-thirtieth each. The total property with D1, D2, S1, S2 and B, at the end of the exercise, would be one-fifth each.
C, a Hindu male, marries F, a Hindu trans-man under the SMA. C dies, leaving behind F, two daughters D1 and D2, a daughter of a pre-deceased son D3, and a daughter of a pre-deceased daughter D4.
F, being a trans-man, would be regarded as “male” for the purposes of deciding the order of succession, which would occur u/s 8 r/w the Schedule. A notional partition would be undertaken u/s 6, crystallizing the coparcenary shares of D1, D2, D3, and D4, along with conferring an equal share on F (being C’s “spouse”) pursuant to Gurupad v. Hirabai. The reasoning in the above example applies directly.
In the notional partition, D1, D2, D3, D4 and F get one-sixth each. This one-sixth, according to Saubhag Singh, is their separate property. At the second stage, C’s own share devolves u/s 8. This devolves upon the D1, D2, D3, D4 and F since all of them are present in Class I of the Schedule – giving them an additional share of one-thirtieth each. The total property with each, the end of the exercise, would be one-fifth each.
On this basis, it can be seen that once a gender-neutral interpretation is offered to the terms “widow” and “widower” in the HSA, intestate succession for same-sex unions can function within extant statutory framework and doctrine. There arise anomalies, however, with regards to the relationship between one same-sex partner’s spouse and the other’s HUF. I discuss these in the following section.
Some anomalies may arise despite the gender-neutral interpretation of the terms “widow” and “widower”, since the HSA’s remaining text would remain highly gendered. In this section, I address one such anomaly – differential rights of male and female same-sex partners to inherit the other’s ascendants’ property u/ss. 8 and 15. Consider the following illustrations:
A, a Hindu male, and B, a Hindu male, marry under the SMA. A predeceases X, his father. X dies in 2023, leaving behind two sons, two daughters, and B.
In this example, in order to make B eligible for inheriting A’s property, the words “widow of a pre-deceased son” as they appear under the Schedule would have to be read as “spouse of a pre-deceased son”. Once this is done, B can inherit the property of X as a Class I heir along with the two sons and daughters, obtaining a one-twenty-fifth share.
C, a Hindu female, marries D, a Hindu female, under the SMA. C predeceases her father X. X dies in 2023, leaving behind two sons, two daughters and D.
In this example, there exists no statutory backing to make D eligible for inheriting X’s property. Since C and D have entered into a female same-sex union governed by Section 15, the order of succession provided thereunder must be followed, which is the following (in the order of precedence):
Sons, daughters (including children of pre-deceased children) and husband;
Heirs of the husband;
Mother and father;
Heirs of the father.
The term “widower of a pre-deceased daughter”, which describes the relationship between X and D, is evidently absent u/s 15. The absence of this term u/s 15 constitutes an impossibility to interpret it as “spouse of a pre-deceased daughter”, and to consequently confer succession rights on D. There exists, therefore, an anomaly – while a same-sex partner of a male deceased could succeed to his partner’s ascendant’s property, the same-sex partner of a female deceased would be unable to. This anomaly may be illustrative of the Union’s argument – judicial intervention may be unable to redress the highly gendered succession regime. In the following section, I argue that despite such occasional anomalies, the wisest choice to be exercised by the Court is to simply hold that until structured legislative change is introduced, the term “widow” and “widower/husband” shall signify “spouse” under both the ISA and the HSA.
Judicial Intervention Towards Succession and the Court’s Options in Supriyo
There exists no constitutional bar to the Court offering a gender-neutral interpretation to the terms “widow” and “widower” under the HSA and ISA, which it would do to save the SMA’s constitutionality. Marriage, without consequent succession rights, would be a continued equality violation, which the Court has sufficient infrastructure to redress. The options, therefore, are two – hold solely the ISA applicable to same-sex unions, resulting in Hindu same-sex unions’ severance from the HUF and their consequent ineligibility to inherit from its members; or hold both the ISA and the HSA applicable (with its limited anomalies), continuing their membership of the HUF and their eligibility to inherit from its members.
If the Court doesn’t wish to enter into the domain of succession under Hindu law due to anticipated allegations of overreach in matters of personal law, it may choose the former option. This option, however, carries substantial disadvantages for same-sex unions, for it would cause the extinction of their coparcenary rights and create a disqualification from inheriting the property of their HUF’s members. Alternatively, it can declare that both the HSA and ISA be interpreted in a gender-neutral manner, with succession for same-sex unions occurring under both. This option, I propose, is the least disruptive, and ensures a continuity of coparcenary rights for same-sex unions while keeping intact their eligibility to inherit HUF’s members’ property. The argument portraying the exercise of this option as judicial interference in matters of personal law misses a crucial point: this ship has already sailed, for the HSA’s contemporary succession regime for daughters and widows nowhere resembles its Mitakshara-law counterpart. The institution of the JFP has already been substantially weakened by legislation and case-law, with every single unit of property crystallizing upon a notional partition taking the avatar of separate property. The limited components of classical Hindu law that permeate into legislation, such as those dictating the manner of a notional partition, are equally efficaciously applicable to same-sex unions.
Further, as has been noted before, succession is a question of property, and concerns rights of a civil instead of religious character. The HSA has never been considered a religious codification necessitating the Court’s interpretive abstention, and has been consistently imputed with a transformative character, at least on the lines of gender – Gurupad v. Hirabai, Tulsamma v. Sesha Reddy, and Vineeta Sharma v. Rakesh Sharma are a few examples. The HSA’s gender-neutral construction, therefore, is in line with the Court’s consistent interventionist approach towards issues of succession law. In Supriyo, therefore, the Court must declare that same-sex marriages would occur under the SMA; and that succession for same-sex unions would be navigated both under both the ISA and the HSA, with a gender-neutral construction of the terms “widow” and “widower” as “spouse”.
On this basis, I submit that despite a few anomalies, succession for same-sex unions can be navigated with relative ease within existing succession law and doctrine. The JFP institution has been weakened by legislative change and judicial decisions, and a risk of judicial interference must not be a consideration. The Court, while holding same-sex marriage permissible under the SMA, must declare that succession shall be governed by the ISA for interfaith and non-Hindu same-sex unions, and under the HSA for Hindu same-sex unions. In making this declaration, it must hold that a gender-neutral construction of the terms “widow” and “widower” be done, undermining the gendered character of property undergirding the succession regime. It must also strive to include transgender persons within the succession regime following Arunkumar’s interpretive approach, using gender self-identification as the basis to determine the applicable order of succession. Members of a same-sex union must be conferred with the same succession rights as their heterosexual counterparts, a move that is well within the Court’s reach in Supriyo.