WIDOW’S REMARRIAGE AND HER RIGHT TO PROPERTY OF HER DECEASED HUSBAND The law of property of a Hindu Female is marked by vicissitudes starting from the Vedic society when female enjoyed equal status as economically and wife enjoyed equal rights in husbands house to an inferior position when Manu declared a wife, son and a slave are declared to have no property and if they happened to acquire it would belong to male under whom they are in protection.
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WIDOW’S REMARRIAGE AND HER RIGHT TO PROPERTY OF HER DECEASED HUSBAND
The law of property of a Hindu Female is marked by vicissitudes starting from the Vedic society when female enjoyed equal status as economically and wife enjoyed equal rights in husbands house to an inferior position when Manu declared a wife, son and a slave are declared to have no property and if they happened to acquire it would belong to male under whom they are in protection.
On July 16th 1856, the Remarriage of Hindu widows was legalized across all the jurisdictions of East India Company. The widows for many years were subject to extreme hardship including the practice of ‘sati’ which was finally banned in 1826 due to joint effort by social and religious reformer Raja Ram Mohan Roy and the British, who condemned the inhuman practice. Hindu Widow Remarriage Act was enacted on July 25th of the same year 1856.
The cause was championed by Ishwara Chandra Vidyasagar, an important figure of Bengal Renaissance. He went ahead and provided legal safeguards ensuring that widows do not lose out any inheritance that they were entitled to by their deceased husbands. However, according to the act, widows were to give up such inheritance after their remarriage under the above said Act. This act was particularly targeted at child widows whose husbands had died before the consummation of marriage.
It was again due to fruitful efforts of the social reformers in the British period, the Hindu Law of Inheritance (Amendment)Act,1929 and Hindu Women’s Right to property,1937 were passed to amend the law of all the schools materially to confer greater rights on women.
Under this Act a Hindu widow had no doubt a demonstrable right to obtain the entitlement to which her husband was entitled to either in his self -acquired property or in the coparcenary in which he was a member. She could demand a partition of her share from the other sharers of or coparceners. But overall limitations or circumscription which was conceived by the Act was that she should not for reasons not contemplated and accepted by then personal law of Hindus, sell alienate her share except for accredited and sanctioned purposes.
This right of widow was enhanced to become an absolute one after enactment of Hindu Succession Act 1956, wherein under S.14 of the Act, ”Any property possessed by a female Hindu, whether acquired before the Act, shall be held by her as full owner thereof and not as a limited owner as was under the earlier Women’s Right to property Act 1937.
The property under S.14of Hindu Succession Act 1956, includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance, or by gift from any person, whether a relative or not, before and after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also by any such property held as stridhana immediately before the commencement of this Act. This absolute right was considered as pre-existing right of a widow which cannot be cut asunder by any law or decree of the court.
But unfortunately many lower courts including High Courts failed to address this provision with proper legal reasoning when widows who were getting married were deprived of their inheritance to their deceased husband’s property by virtue of earlier law wherein a widow was divested of her husband’s property under the earlier Hindu Widow Remarriage Act (1856)according to S.2 of the said Act .Under Hindu Widows Remarriage Repeal Act 1983 stands repealed and according to the amended act, a widow after remarriage was not divested of her rights vested in her husband’s property.
Supreme Court has established this pre-existing right of the widow even after her remarriage in many judgments in this regard and Bombay High Court Bench upheld the view taken by a single Judge bench relying on Hindu Widows Remarriage Act was a misplaced one.
Summing up the above provisions of law governing the right of widow in the event of widow getting remarried and Courts decisions with regards to inheritance in this regard.
Do widows have a right over their husband’s property? What if they choose to remarry? These are some questions that seem to surface again and again when it comes to matters of property ownership. Let us try to find the answers.
What does the law say?
An earlier law forbade windows, who decided to remarry from inheriting their deceased husband’s property.
According to the Widow Remarriage Act of 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 there upon succeed to the same.”
However, this Act has been repealed. Under the provisions of the Hindu Succession Act, 1956, widows who choose to remarry do have a right on their deceased husband’s property.
Widows have the right
Recently, the Bombay High Court (HC) ruled that a widow who remarries does not need to give up her right over her deceased husband’s property. This came to the fore when a man (brother of the deceased) relied on Section 2 of the Widow Remarriage Act 1856 (quoted above) and asserted that his sister-in-law who had remarried should not be allowed to inherit her former husband’s property. However, the HC ruled that she still is grouped under the Class-I heir of her deceased husband and should inherit.
The husband’s kin come under Class-II heirs.
Other Class-I heirs include son, daughter, mother, son of a predeceased son, daughter of predeceased son, widow of predeceased son, son of a predeceased daughter, daughter of predeceased daughter, son of predeceased so of predeceased son, daughter of predeceased son of a predeceased son, widow of predeceased son of a predeceased son.
Note
• Adopted children (sons or daughters) are also counted heirs.
• Children born out of void or voidable marriages are considered to be legitimate by virtue of Section 16, and are entitled to succession.
• In case there is more than one widow, they equally share one part of their deceased husband’s property.
• A widowed mother also succeeds to her share along with other heirs by virtue of Section 14. This has been upheld in the Jayalakshmi versus Ganesh Iyer case. Even if she is divorced or remarried, she is entitled to inherit from her son. Here the term mother also includes an adoptive mother. Moreover, 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).
Exceptions
However, the Hindu Succession Act also mentions that certain widows cannot succeed or inherit.
“Certain widows remarrying 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.”
Indian society has been evolving in terms of how widows are treated. In earlier times, they were subjected to discrimination in various spheres especially with regards to property inheritance, while what they really required was emotional and financial support to carry on with life’s journey ahead.
A law that came into force under the British rule had legalised the remarriage of Hindu widows. Although it was a landmark decision but it deprived widows, who remarried, from acquiring their share in their husband’s properties.
According to Section 2 of the 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.”
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.
Provisions under the Hindu Succession law
The Hindu Succession Act, 1956 mentions the 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. While the husband’s kin are counted among the Class-II heirs, the Class-I heirs who share their rights with the widow of the intestate, include – son, daughter, mother, son of a predeceased son, daughter of predeceased son, widow of predeceased son, son of a predeceased daughter, daughter of predeceased daughter, son of predeceased so of predeceased son, daughter of predeceased son of a predeceased son, widow of predeceased son of a predeceased son.
It is to be noted that:
Adopted children (sons or daughters) are also counted as heirs.
Children born out of void or voidable marriages are considered to be legitimate by virtue of Section 16, and are entitled to succession.
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.
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).
“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.”
Remarried widow has a share in dead husband’s property: SC
New Delhi, Feb 19 (PTI) A widow who remarries cannot be deprived of a share in her dead husband’s property, the Supreme Court has ruled.
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, a bench of Justices S B Sinha and B S Sirpurkar said.
The apex court passed the ruling while dismissing an appeal filed by Cherotte Sugathan and other legal heirs challenging a ruling passed by a civil court in favour of a widow Cherotte Bharathi, which was affirmed by the Kerala High Court.
Sugathan and other claimants had submitted that Bharathi was not entitled to any share in her deceased husband’s property since she had married another man.
They quoted Hindu Widow’s Remarriage Act 1856 in support of their contention.
According to the Act, 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.
But the two lower courts had ruled that the widow Cherotte Bharathi was entitled to a share in the property of her deceased husband in view of the subsequent enactment of the Hindu Succession Act which removed the disqualification provision for the widows.
Aggrieved by the ruling Sugathan and other claimants filed the appeal in the apex court. Since the Hindu Marriage Act provided for absolute ownership for a widow over her deceased’s husband property, she cannot be deprived of the same even after her marriage to another person, the apex court said while dismissing the appeal.
Interpreting a number of earlier rulings, the apex court observed the Hindu Succession Act had “brought about a sea change in Shastric Hindu law. Hindu widows were brought on equal footing in the matter of inheritance and succession along with male heirs.”
Citing section 4 of Hindu Marriage Act, the apex court said the provision stipulated that it would have overriding effect over the text of any Hindu law including the Hindu Widow’s Remarriage Act
‘Widow has right to property’
A widow has the right to enjoy the property bought by her husband in her name in the manner she wants, and her daughter and son-in-law cannot lay claim to it, a Delhi court has held.
The court ruled in favours of a 65-year-old woman who challenged the refusal of her daughter and son-in-law to vacate a portion of the house at Shastri Nagar in north west Delhi. Lajwanti Devi wanted back the portion of the property given to her daughter and son-in-law in 1985 but they refused to vacate. Additional District Judge Kamini Lau held the woman as the owner of the house and said the property was bought by her husband in 1966 in her name to “provide her a secure life” after his death.
N.GIRIRAJ,
ADVOCATE,
MADRAS HIGH COURT,
ENRL.NO. -438/78
LEGAL POINT.
DATE : 09/07/2020.
