RIGHTS OF WIDOW
Rights of Widow Under Hindu Succession
The prevailing legislation at the time,
however, was a colonial creation, called The Hindu Widow’s Remarriage Act,
1856. According to this legislation, a Hindu widow had to give up any right to
property, or maintenance from her dead husband’s property (self-acquired and
joint family property), if she married again.
however, was a colonial creation, called The Hindu Widow’s Remarriage Act,
1856. According to this legislation, a Hindu widow had to give up any right to
property, or maintenance from her dead husband’s property (self-acquired and
joint family property), if she married again.
As a result, there was a lot of misuse of
this law. Plenty of Hindu families denied widows their rights on remarriage,
even when customary law allowed her to retain possession of property. The
legislation was also used to deny widows their rights when they turned
“unchaste,” a rather vague term that had no clear meaning.
this law. Plenty of Hindu families denied widows their rights on remarriage,
even when customary law allowed her to retain possession of property. The
legislation was also used to deny widows their rights when they turned
“unchaste,” a rather vague term that had no clear meaning.
This system prevailed until the early 20th
Century, where it was called in question for being arbitrary at the behest of
reformers. At this time, The Hindu Women’s Property Right Act of 1937 came into
place. Under this, single widows, i.e., widows who did not remarry, had some
rights for maintenance and property out of the joint family estate at the time.
However, things expanded and changed with the arrival of the Hindu Succession
Act and the Hindu Marriage Act in 1956.
Century, where it was called in question for being arbitrary at the behest of
reformers. At this time, The Hindu Women’s Property Right Act of 1937 came into
place. Under this, single widows, i.e., widows who did not remarry, had some
rights for maintenance and property out of the joint family estate at the time.
However, things expanded and changed with the arrival of the Hindu Succession
Act and the Hindu Marriage Act in 1956.
Hindu Widows’ Remarriage Act, 1856, – “All rights and
interests which any widow may have in her deceased husband’s property … shall
upon her remarriage cease; and the next heirs of her deceased husband, or other
person entitled to the property on her death, shall thereupon succeed to the
same.”
interests which any widow may have in her deceased husband’s property … shall
upon her remarriage cease; and the next heirs of her deceased husband, or other
person entitled to the property on her death, shall thereupon succeed to the
same.”
However, this Act has been repealed. The
Bombay High Court had ruled that the provisions of the Hindu Succession Act,
1956 would prevail over the repealed Hindu Widows’ Remarriage Act, 1856.
Bombay High Court had ruled that the provisions of the Hindu Succession Act,
1956 would prevail over the repealed Hindu Widows’ Remarriage Act, 1856.
A few years ago, the Bombay High Court (HC)
heard a case where the brother of a deceased man quoted the Section 2 of the
Widow Remarriage Act 1856 and asserted that his sister-in-law who had remarried
should not be allowed to inherit the property of her former husband.
heard a case where the brother of a deceased man quoted the Section 2 of the
Widow Remarriage Act 1856 and asserted that his sister-in-law who had remarried
should not be allowed to inherit the property of her former husband.
The court, however, ruled that a widow has
the rights over her former husband’s properties, even if she has remarried, as
she would qualify as a Class I heir while the husband’s kin would be considered
a Class II heir.
the rights over her former husband’s properties, even if she has remarried, as
she would qualify as a Class I heir while the husband’s kin would be considered
a Class II heir.
The Current Inheritance Laws For Widows – Fundamentally, as the law stands,
if there is a will defining how property is to be divided, that document, so
long as it is valid in the eyes of law, takes precedence over everything else.
It is when one dies without a will, that laws of succession kick in.
Succession, in simple terms, refers to the inheritance of property after the
death of the one who owns the property. One’s personal religious beliefs
identify the legislative or customary laws that govern succession. Accordingly:
if there is a will defining how property is to be divided, that document, so
long as it is valid in the eyes of law, takes precedence over everything else.
It is when one dies without a will, that laws of succession kick in.
Succession, in simple terms, refers to the inheritance of property after the
death of the one who owns the property. One’s personal religious beliefs
identify the legislative or customary laws that govern succession. Accordingly:
1. The Hindu Succession Act, 1956 applies
to Hindus, Sikhs, Jains and Buddhists for intestate succession/inheritance.
to Hindus, Sikhs, Jains and Buddhists for intestate succession/inheritance.
2. The Indian Succession Act, 1925,
particularly Sections 50 to 56, apply to Parsis for intestate succession.
particularly Sections 50 to 56, apply to Parsis for intestate succession.
3. The Indian Succession Act, 1925,
particularly Sections 31 to 49, apply to Christians and Jews for intestate
succession.
particularly Sections 31 to 49, apply to Christians and Jews for intestate
succession.
4. The law of succession governing Muslims,
for intestate succession, is the Muslim Personal Law (Shariat) Application Act,
1937.
for intestate succession, is the Muslim Personal Law (Shariat) Application Act,
1937.
Today, widows have a right to inheritance
from their deceased husbands’ property, even if they remarry.
from their deceased husbands’ property, even if they remarry.
Provisions under the Hindu Succession law-
Under the scope of the Hindu Succession Act, 1956, which acts as the property
law for those who are Hindu, Buddhist, Sikh or Jain, the properties of a Hindu
male who dies without a will, go to his sons, daughters, widow and mother
equally.
Under the scope of the Hindu Succession Act, 1956, which acts as the property
law for those who are Hindu, Buddhist, Sikh or Jain, the properties of a Hindu
male who dies without a will, go to his sons, daughters, widow and mother
equally.
The Hindu Succession Act, 1956 mentions the
distribution of property among heirs in class I of the schedule.
distribution of property among heirs in class I of the schedule.
The first rule says that if a person dies
without leaving a will (intestate) then his widow, or if there are more widows
than one, all the widows together, shall take one share.
without leaving a will (intestate) then his widow, or if there are more widows
than one, all the widows together, shall take one share.
While the husband’s kin are counted among
the Class-II heirs.
the Class-II heirs.
The Class-I heirs who share their rights
with the widow of the intestate, include
with the widow of the intestate, include
a) son, daughter, mother,
b) son of a predeceased son, daughter of
predeceased son,
predeceased son,
c) widow of predeceased son, son of a
predeceased daughter,
predeceased daughter,
d) daughter of predeceased daughter, son of
predeceased son of predeceased son,
predeceased son of predeceased son,
e) daughter of predeceased son of a
predeceased son,
predeceased son,
f) widow of predeceased son of a
predeceased son.
predeceased son.
It is to be noted that:
a) Adopted children (sons or daughters) are
also counted as heirs.
also counted as heirs.
b) Children born out of void or voidable
marriages are considered to be legitimate by virtue of Section 16, and are
entitled to succession. –
marriages are considered to be legitimate by virtue of Section 16, and are
entitled to succession. –
c) A widowed mother (who may be an adoptive
mother) of the intestate also succeeds to her share along with other heirs by
virtue of Section 14. Even if she is divorced or remarried, she is entitled to
inherit from her son. –
mother) of the intestate also succeeds to her share along with other heirs by
virtue of Section 14. Even if she is divorced or remarried, she is entitled to
inherit from her son. –
d) However, if there is an adoptive mother,
the natural mother has no right to succeed to the property of the intestate. A
mother is also entitled to inherit the property of her illegitimate son by
virtue of Section 3(I)(J).
the natural mother has no right to succeed to the property of the intestate. A
mother is also entitled to inherit the property of her illegitimate son by
virtue of Section 3(I)(J).
e) Certain widows re-marrying may not
inherit as widows. Any heir, who is related to an intestate as the widow of a
pre-deceased son or the widow of a brother shall not be entitled to succeed to
the property of the intestate as such widow, if on the date the succession
opens, she has re-married.
inherit as widows. Any heir, who is related to an intestate as the widow of a
pre-deceased son or the widow of a brother shall not be entitled to succeed to
the property of the intestate as such widow, if on the date the succession
opens, she has re-married.
Rights of Widow of Christians & Parsis Under The Indian Succession Act
For the Parsi community – The widow of a
Christian male takes a specified share. The amount of that share depends on the
identity of the other succeeding relatives of the deceased. If the heirs are
children, the widow receives a third of the share, with the remaining going to
the others. If the heirs are relatives other than the children, the widow
receives a half of the share, and the remainder goes to the other relatives. If
there are neither children nor other relatives, the widow receives the entire
property.
Christian male takes a specified share. The amount of that share depends on the
identity of the other succeeding relatives of the deceased. If the heirs are
children, the widow receives a third of the share, with the remaining going to
the others. If the heirs are relatives other than the children, the widow
receives a half of the share, and the remainder goes to the other relatives. If
there are neither children nor other relatives, the widow receives the entire
property.
For the Parsi community – A widow receives
equal shares with each child or parent of the deceased husband. If the widow
alone is the lone heir, she takes half of the said property, and the residue is
to be divided among other relatives of the deceased.
equal shares with each child or parent of the deceased husband. If the widow
alone is the lone heir, she takes half of the said property, and the residue is
to be divided among other relatives of the deceased.
Rights of Widow Under Islamic Law
The Muslim law of succession is a
codification of four sources of Islamic law, namely,
codification of four sources of Islamic law, namely,
a) The Holy Koran, the Sunna (the practice
of the Prophet),
of the Prophet),
b) The Ijma (the consensus of the learned
men of the community on what should be the decision on a particular point),
men of the community on what should be the decision on a particular point),
c) The Qiya (an analogical deduction of
what is right and just in accordance with the good principles laid down by God).
what is right and just in accordance with the good principles laid down by God).
d) The Muslim Personal Law (Shariat)
Application Act, 1937.
Application Act, 1937.
Under Muslim law, no widow is excluded from
inheritance. A childless Muslim widow is entitled to one-fourth of the property
of the deceased husband, after meeting his funeral and legal expenses and debts.
inheritance. A childless Muslim widow is entitled to one-fourth of the property
of the deceased husband, after meeting his funeral and legal expenses and debts.
However, a widow who has children or
grandchildren is entitled to one-eighth of the deceased husband’s property. If
a Muslim man marries during an illness and dies from that medical condition
without brief recovery or consummating the marriage, his widow has no right of
inheritance. But if her ailing husband divorces her and afterwards, he dies
from that illness, the widow’s right to a share of inheritance continues until
she remarries.
grandchildren is entitled to one-eighth of the deceased husband’s property. If
a Muslim man marries during an illness and dies from that medical condition
without brief recovery or consummating the marriage, his widow has no right of
inheritance. But if her ailing husband divorces her and afterwards, he dies
from that illness, the widow’s right to a share of inheritance continues until
she remarries.
CASE LAW
Cherotte Sugathan (Died Through … vs Cherotte
Bharathi & Ors on 15 February, 2008 – Supreme Court of India – A Remarried Widow Can
Keep The Share Of Her Dead Husband’s Property – In 2008, the Supreme
Court of India decided that widow who remarries cannot be deprived of a share
in her dead husband’s property as according to it the widow becomes an absolute
owner of the deceased husband’s riches to the extent of her share as the
provisions of the Hindu Succession Act 1956 would prevail over the earlier
Hindu Widow’s Remarriage Act 1856.
Bharathi & Ors on 15 February, 2008 – Supreme Court of India – A Remarried Widow Can
Keep The Share Of Her Dead Husband’s Property – In 2008, the Supreme
Court of India decided that widow who remarries cannot be deprived of a share
in her dead husband’s property as according to it the widow becomes an absolute
owner of the deceased husband’s riches to the extent of her share as the
provisions of the Hindu Succession Act 1956 would prevail over the earlier
Hindu Widow’s Remarriage Act 1856.
The Supreme Court of India did not concur
with the provisions of the Hindu Widow’s Remarriage Act 1856 which says that
all rights and interests which any widow may have in her deceased husband’s
property by way of maintenance, or by inheritance, shall cease upon her
re-marriage and set it aside.
with the provisions of the Hindu Widow’s Remarriage Act 1856 which says that
all rights and interests which any widow may have in her deceased husband’s
property by way of maintenance, or by inheritance, shall cease upon her
re-marriage and set it aside.
The apex court based its decision on the
fact that since the Hindu Marriage Act provides for absolute ownership for a
widow over her deceased’s husband property; she cannot be deprived
of the same. The change in her marital status thereafter does not matter,
particularly after the tremendous changes brought in by the Hindu Succession
Act.
fact that since the Hindu Marriage Act provides for absolute ownership for a
widow over her deceased’s husband property; she cannot be deprived
of the same. The change in her marital status thereafter does not matter,
particularly after the tremendous changes brought in by the Hindu Succession
Act.
The Supreme Court in its decision observed
that the Hindu Succession Act had brought about a sea change in Shastric Hindu
law and made Hindu widows eligible and equal in the matter of inheritance and
succession along with male heirs.
that the Hindu Succession Act had brought about a sea change in Shastric Hindu
law and made Hindu widows eligible and equal in the matter of inheritance and
succession along with male heirs.
The Apex court held that section 4 of Hindu
Marriage Act would have overriding effect over the text of any Hindu law
including the Hindu Widow’s Remarriage Act.
Marriage Act would have overriding effect over the text of any Hindu law
including the Hindu Widow’s Remarriage Act.
Ajit Kaur v. Darshan Singh, 2019 SCC – 04.04.2019 – Widow can’t claim ownership over a
mutated property – under Section 14 of Hindu Succession Act – In a case where a
widow claimed possession of a property mutated in her name on the basis of the
oral gift from her husband before the enforcement of the Hindu Succession Act,
1956, the bench of AM Khanwilkar and Ajay Rastogi, JJ said,
mutated property – under Section 14 of Hindu Succession Act – In a case where a
widow claimed possession of a property mutated in her name on the basis of the
oral gift from her husband before the enforcement of the Hindu Succession Act,
1956, the bench of AM Khanwilkar and Ajay Rastogi, JJ said,
“Section 14(1) of the Act, 1956 clearly
envisage that the possession of the widow, however, must be under some vestige
of a claim, right or title or under any of the devise which has been purported
under the law.”
envisage that the possession of the widow, however, must be under some vestige
of a claim, right or title or under any of the devise which has been purported
under the law.”
The Court also explained the concept of
mutation and said.
mutation and said.
“the mutation of a property in the revenue
records are fiscal proceedings and does not create or extinguish title nor has
it any presumptive value on title. It only enables the person in whose favour
mutation has been ordered, to pay the land revenue. At the same time, the
effect of a declaratory decree to restore the property alienated to the estate
of the alienor and until and unless the alienees are able to convince the court
that they have no subsisting interest in the property, the heirs of the
alienees would be entitled to the benefits of the property as per the law of
succession.”
records are fiscal proceedings and does not create or extinguish title nor has
it any presumptive value on title. It only enables the person in whose favour
mutation has been ordered, to pay the land revenue. At the same time, the
effect of a declaratory decree to restore the property alienated to the estate
of the alienor and until and unless the alienees are able to convince the court
that they have no subsisting interest in the property, the heirs of the
alienees would be entitled to the benefits of the property as per the law of
succession.”
The Court, hence, held that in the instant
case, the widow although was holding possession but not under any of the devise
referred to under explanation to Section 14(1) of the Act, 1956 and mere
possession would not confer preexisting right of possession over the subject
property to claim full ownership rights after the Act, 1956 came into force by
operation of law.
case, the widow although was holding possession but not under any of the devise
referred to under explanation to Section 14(1) of the Act, 1956 and mere
possession would not confer preexisting right of possession over the subject
property to claim full ownership rights after the Act, 1956 came into force by
operation of law.
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BN – 18122019