Abstract: The objective of this article is to prevent the succession of the property of a Hindu Intestate from the notion of ‘Secular Succession’ and to let it remain as a Hindu Succession in the real sense. The author has done so by critically analyzing a judgment of Gujarat High Court in this regard and its devastating effects of Hindu Society. The author also provides some suggestions as to amend some existing ambiguous law provisions to prevent a targeted onslaught on Hinduism in this regard.
Recently two judgments of two different High Courts of the Country drew my attention which irked my consciousness. These two judgments are on the same subject matter and delivered by Gujarat High Court and Bombay High Court respectively. These judgments are an evident example of a judicial overreach which ultimately makes it a tyrannical pronouncement against Hindu society.
In Nayanaben Firozkhan Pathan @ Nasimbanu Firozkhan Pathan v. Patel Shantaben Bhikhabhai & Ors, Special Civil Application No. 15825 of 2017, the Hon’ble Gujarat High Court ruled that a Hindu woman converting to Islam after marrying a Muslim man does not lose her inheritance rights in her father’s ancestral property. She is equally entitled in the property even after converting to Islam as she was entitled before her conversion. The similar premise is also held by Hon’ble Bombay High Court in Balchand Jairamdas Lalwant v. Naazneen Khalid Qureshi, Appeal from order no. 1175 of 2014, where it relied upon the aforesaid Gujarat High Court Judgment.
These strange judgments are products of an emaciated judicial reasoning which is both legally and logically untenable. In these judgments the Court not only misinterpreted the Hindu Succession Act, 1956 but also overlooked the current legal position & the legislative intent.
Though there have been few other judgments in this same line, however, since the Gujarat High Court’s judgment being genus of the latest two, I decided to scrutinize it on legal and logical basis.
In succinct, the Gujarat high Court has ruled its premise on following grounds:
- According to The Caste Disabilities Removal Act, 1850, change in religion does not result into forfeiture of property and exclusion of inheritance.
- As per section 2 of the Hindu Succession Act, 1956, the Act would apply onto all persons whose parents are Hindus. So it doesn’t matter whether he/she has converted or not.
- As per section 4 of the Hindu Succession Act, 1956, any other law immediately before the commencement of the Act shall cease to apply to Hindus in so far it is inconsistent with any of the provisions of the Act. Since all other inconsistent laws were abolished except for Caste Disabilities Act, hence it will apply over and above the Succession Act.
- Section 26 of the Hindu Succession Act, 1956, has no impact on the convert’s right to inherit property from her Hindu Relatives. It only disqualifies the children born after her conversion and their descendants and not the convert himself/herself.
Now, let me explain how these legal points relied by the Court are naïve and dangerous while interpreting a personal law such as Hindu Succession Act, 1956.
Firstly, Court applied a 178 year old repealed colonial law over a personal law despite having a clear provision that any law inconsistent with the Hindu Succession Act, 1956 shall not have any bearing on it. The uni-section contained Caste Disabilities Removal Act, 1850 reads as follows-[1]
“Law or usage which inflicts forfeiture of, or affects, rights on change of religion or loss of caste to cease to be enforced ; So much of any law or usage now in force within India as inflicts on any person forfeiture of rights or property, or may be held in any way to impair to affect any right of inheritance, by reason of his or her renouncing, or having excluded from the communion of, any religion, or being deprived of caste, shall cease to be enforced as law in any Court.”
Court used this section to override the Hindu Succession Act, 1956. The Court’s reasoning that since all other inconsistent laws except for Caste Disabilities Removal Act were abolished, therefore it has an overriding effect over the Hindu Succession Act, 1956 suffers from a legal infirmity. As said before, the said legislation was repealed already but despite that the Court used it for overriding provisions of Hindu Succession Act, 1956.
Even if the said Act were not repealed, the same could not have been applied in the present situation. The Court is confused with the existence of a particular law and the application of its provisions over the other laws. For instance, existence of a particular law doesn’t imply that its provisions are mandatory and have its application over a personal law like Hindu Succession Act.
Section 4 of the Hindu Succession Act, 1956 provides –[2]
“4. Overriding effect of Act. (1) Save as otherwise expressly provided in this Act,
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act, shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.”
When section 4(1)(a) and section 4(1)(b) of the Hindu Succession Act, 1956 clearly provides that any law which were made before the commencement of this Act shall cease to apply on Hindus in so far as it is inconsistent with any of the provisions contained in this Act, it is absolutely ridicules to rule that the provisions of Caste Disabilities Act shall override the provisions of the Succession Act. Section 4 of the Hindu Succession Act itself gives primacy that the Act will be absolute and exclusive when it comes to intestate succession among Hindus and no other Act shall have any bearing on it whatsoever. Hence, juxtaposing of a general law with a personal law sets a dangerous and appalling precedent of judicial pronouncement.
Secondly, section 2(c) of the Hindu Succession Act, 1956 clearly provides, inter alia, that the Act wouldn’t apply on Muslims. Section 2 of the Hindu Succession Act, 1956 is as follows –[3]
“2. Application of Act. (1) This Act applies
(a) to any person, who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Explanation .The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.
(3) The expression Hindu in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.”
So, when a person converts from Hinduism to Islam, he/she ceases to be a Hindu and by virtue of section 2(1)(c), he/she shall not be governed by the Hindu Succession Act,1956. Having read this, it is abundantly clear that a ‘Hindu’ Succession is not meant to regulate the succession of a Muslim person. But the Court overlooked this simple thing also.
Thirdly, the Court stated that when both of the child’s parents are Hindus, he/she shall also be Hindu whether or not he/she is a convert. Court has taken this argument after reading section 2(1) explanation (a) of the Hindu Succession Act. This sheer argument is simply senseless and indigestible. It means that all the person whose both parents were Hindus and who has been converted to Islam, is still a Hindu in eye of law? There are umpteen numbers of examples where despite having Hindu parentage, people have changed their religion and governed by their respective personal laws. So in this particular case, the converted women shall be governed by two personal laws, isn’t it? Sadly, this premise has been held despite having stare decisis that a person cannot be governed by two personal laws.
Lastly, this leaves us with section 26 which provides when a person ceases to be a Hindu due to conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives. Section 26 of Hindu Succession Act, 1956 reads as follows –[4]
“26. Converts descendants disqualified: Where, before or after the commencement of this Act, a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens.”
Court primarily relied on this section and said that the provision does not deny the convertee’s right of heritance. It is only their descendants who are disqualified from inheritance and not her.
Here, one needs to see the entire scheme of the Hindu Succession Act, 1956 for understanding this provision. When this Act was formed in 1956, the daughter was never a coparcener. She didn’t have the inheritance rights until the amendment came in 2005 which gave her a right equivalent of a son. So, when section 26 was initially made, it was only made while keeping in mind the male Hindu perspective because that time it was only Hindu male who used to inherit the property. However, when the amendment in 2005 came in and made the Hindu female a coparcener, the section 26 was not amended accordingly and hence left a judicial lacuna. It was the Court’s duty to fill up this lacuna in the interest of justice. But Court didn’t.
Moreover, even if we go by the Court’s interpretation of this section, the legislative intent and the literal meaning of this section would be defeated. Let’s understand this with the following example: A Hindu woman has converted and acquired the property from her intestate father under section 26. Now, once she acquires the property she would be the absolute owner of that property and later it will devolve upon her descendants according to Muslim personal law. So, ultimately the property of Hindu father dying intestate would devolve upon the Convert’s descendant which is expressly barred under section 26.
Hence, interpretation by the Court is not only avoiding the legislative intent but also catering to something which is expressly barred by the section. Though the parliament should immediately amend this section and undo all its miscarriage done to Hindu families, but while it doesn’t, it is the Court’s task to apply its judicial mind and fill this gap. Otherwise the ramifications of this judgment are severe and drastic on Hindu society.
The impacts of these judgments are very insidious. Firstly, this judgment acts like a shot in arm of the activities and agendas like Love Jihad, which the Maulwis and other head preachers, in collusion with the Muslim men have been trying to achieve. It gives a Muslim man all the more reasons to marry a Hindu girl, for double the rewards, one from the Maulavis and second from the property inherited by the Hindu female. So, what prevents a Muslim man from doing this ghastly act with a greater vigor for double the reward?
One cannot simply deny the patriarchal pattern of our Society. Once they succeed in their mission of Love Jihad, they shall force their newly converted wife to file the suit for inheritance. And once the converted wife gets the property share from the inheritance, it is not a surprise that the said property shall be handled and disposed by the Muslim men only. So the situation would be that basically a Hindu (converted to Islam) wife shall be their ‘Golden Goose’. So why would a Muslim man miss this golden opportunity of getting free fund property and not file that suit for inheritance of property through his wife?
Second, these judgments are not only an attempt to disgrace Hindus but also an attack on its culture. Forget what a legislature or law would have meant, would a layperson ever think of applying Hindu succession Act on a Muslim? It is simply unfair for Hindus to give their hard-earned property to a Muslim man for which he was never entitled. The misinterpretation of section 26 gives a back-door entry to the other religious fundamentalists to interfere and misuse Hindus succession.
These Judgments were pronounced within the span of six months (Gujarat HC’s on 26th September 2017 & Bombay HC’s on 6th March 2018) and I was shocked that there were few other High Courts’ judgments which ruled the same premise. Though all others except for these two, were made before 2005. Therefore, I particularly chose these two to express my anguish.
These judgments are crying to be struck down because they not only misinterpret the Hindu law and take Hindus for granted but also make a mockery of Hindu culture, beliefs and their succession method. Apart from striking down this judgment, looking at the current scenario in the country, the legislature should immediately amend section 26 and make it very clear that no person shall have any right of inheritance in a Hindu Succession once he/she has converted to other religion. The parliament cannot retain a legal position in Hindu personal law in which a Hindu person is pressurized by law to give away his/her property to a person belonging from other religion. The current legal position in this regard is simply bizarre and vicious sans legal backing. Hence, parliament needs to bring an abrupt amendment in section 26 with retrospective effect and make it crystal clear that conversion to another religion from Hinduism amounts to abandonment of the ancestral property.
References
[1] Sec. 1, Caste Disabilities Removal Act, 1850 (21 of 1850).
[2] Sec. 4, The Hindu Succession Act, 1956 (30 of 1956).
[3] Sec. 2, The Hindu Succession Act, 1956 (30 of 1956).
[4] Sec. 26, The Hindu Succession Act, 1956 (30 of 1956).
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Purushottam Mishra is an advocate in Rajasthan High Court and an Alumnus, National Law University, Delhi.