RIGHTS OF HINDU WIDOW

Project Assignment in Family Law

Submitted By

Kulvinder Nain
1st Year, LL.B. 11IP60011

Rajiv Gandhi School of Intellectual Property Law Indian Institute of Technology, Kharagpur

Introduction
This project deals with the rights of women who are widows. Although these rights are mainly concerned with the social status of widow and rights of succession to property of the husband, they have an impact on the rights of widows to remain in possession of the shared household and hence are being discussed. If we see the historical positions of widows in Hindu community carried the stigma of inauspiciousness and were thus required not to participate in religious or auspicious social functions such as marriage or other celebrations. A widow was not even allowed to perform the ritual ceremony to welcome her own daughter-in-law. Widows were always looked upon as inauspicious and were not permitted to attend festive occasions despite the fact that many of the widows were young girls whose marriage had not even been consummated. Often the mother-in law blamed her for being responsible for her sons death. The death of the husband was the start of young womens problems - she was either expected to commit Sati or to go back to her parents. Reformers like Raja Ram Mohan Roy and others fought for doing with the evil of Sati and permitting remarriage. A widow was not allowed to marry again unless it was sanctioned by local or custom, but in any case even if permitted it entailed the forfeiture or divesting of the widows estate in most cases. As there was settled rule of Hindu law that chastity was a condition precedent for a widow to inherit her husbands estate unless this had been condoned earlier by the husband.

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Right to Property
y Prior to the passing of the HSA, by the passing of the Hindu Womens Right to Property Act, 1937, for the first time, Hindu widows had got limited interest in their husbands and father-in-laws separate property as an heir and the same was known as the Hindu womens estate. The share of the widow was the sane as that of the son. In India there are two major school of Hindu law governing ancestral property, the Dayabhaya and Mitakshara. The Dayabhaya law prevails in eastern India such as Bengal and other adjoining areas whereas in most of northern India and parts of Western India it is the Mitakshara law that prevails. In certain parts of western India the Mayukha school is prevalent whereas in some parts of southern India the Marumakkatayam, Aliyasantama and the Nambudri laws prevail. In Dayabhaya system person held the property as tenants in common. When the father died the property was divided between the heirs ad they could hold it together if they wanted but their shares ware defined. Whereas under the Mitakshara systems a, widow took the place of her husband. She could claim partition of the property. However the share of the widow passed on her husbands heir after her death as revisioners y The Hindu woman thus did not have absolute rights over the property inherited from her husband till the passing of the HSA, which for the first time gave her absolute interest in the property. Under section 14 of HSA, any property possessed by a female Hindu, whether acquired before or after the commencement of HSA, shall be held by her as full owner thereof and not as a limited owner. Thus the HSA, converted the limited interest of Hindu woman in the womans estate into her absolute property. The section further clarified that property 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 arrears of maintenance, or by gift from any person, whether the relative or not, before, at or after marriage, or by her own skill or exertion, or by purpose or by prescription or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. Sub-section(2) however makes an exception to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift,

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will or other instrument or the decree, order or award prescribe a restricted estate in such property. y This section makes a woman a full owner of any property acquired by her either by inheritance or devise or partition or in lieu of maintenance. Possession, either actual or constructive or in any other form recognized by law is sufficient to enable a female Hindu to get her limited right enlarged into an absolute right under section 14(1). 1 Section 14(2) should be interpreted very strictly and should not be interpreted in such manner which would rob Sub section (1) of its efficacy and deprive the protection sought to be given to a Hindu female.2 It was held in the case of Yemanappa Dudappa Marve v.Yelubai3that earlier the widow had a very limited interest in the scheduled property which was given to her in lieu of her maintenance and the same ripens into an absolute estate. However sub-section (2) of section 14 must be read as proviso or exception to subsection (1) of section 14 and its operation must be confined to cases where property is acquired for the first time as grant without any pres-existing right. If the female has an existing interest in the property, the interposition of any instrument will not affect the operation of sub-section(1) of section 14 and the property will be held by the female as her absolute property4. y In the case of V.Tulasamma v. Sesha Reddy5 it was held by the Supreme Court that by virtue of section 14(1) of the HSA the widows limited interest gets automatically enlarged into an absolute Right notwithstanding any restrictions placed on the document or instrument. Whereas section 14(2) has a field of its own and applies to the instruments or decrees, awards and gifts, which create independent or new title in the favour of the female heir for the first time. By virtue of section 14(1) of the HSA women can become the absolute owners of the property they inherited. They can sell it, gift it and so on. After her death the property can be divided equally amongst her heirs. The Supreme Court in the case of Raghubir Singh and other v. Gulab Singh and others6 held that the right to

1 Palasseri Velayudhan and Anr. Vs. Palasseri Ithayi and Ors. AIR 1994 Ker 267. 2 V. Tulasamma & Ors vs V. Sesha Reddi AIR 1977 SC 1944. 3 AIR 2003 Karn 396 4 M. Shanmugha Udayar v. Sivanandam and Ors. AIR 1994 Mad 123. 5 AIR 1997 SCC 99 6 AIR 1998 SC 2401

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maintenance of a Hindu female flows from the social and temporal relationship between the husband and the wife and in the case of widows this rights exists even under shastric law, prior to the passing of the Hindu Womens Rights to Property Act, 1937 and the Hindu married Womens Rights to separate residence and Maintenance Act, 1946. These acts only recognized the position as existed under Hindu law, and gave it a statutory backing. y If a Hindu widow is in possession of the property of her husband, she has a Right to maintenance from it, and is entitled to possession of that property in lieu of her right to maintenance. Where a Hindu widow is given land in lieu of maintenance and she is put in possession of that property, it cannot be denied that she has acquired a limited interest in that property and this interest gets enlarged into full ownership and she can deal with the Property as an absolute owner7 y In case of Sukh Ram v.Gauri Shankar8 it was held by the Supreme Court that a widow acquiring an interest in a property by virtue of the Hindu Succession Act is not subject to any restrictions. The words of S.14 of the HSA are express and explicit, thereby a female Hindu possessed of property whether acquired before or after the commencement of this act holds it as a full owner and not as a limited owner. y In case of Gulwant Kaur v.Mohinder Singh9 it ws held by the Supreme Court that It is obvious that section 14 is aimed at removing limitations and restrictions on the right of a female Hindu to enjoy, as a full owner, property possessed by her so long as her possession is traceable to a lawful origin, that is to say, if she has a vestige of title. It makes no difference whether the property is acquired by inheritance or partition or in lieu of maintenance or by a gift. The explanation expressly refers to property acquired in lieu of maintenance and we do not see what further the widow has to establish before she can claim full ownership under section 14(1) in respect of property given to her and possessed by her in lieu of maintenance. The very right to receive maintenance is sufficient title to enable the ripening of possession into further ownership if she is in possession of that property in lieu of maintenance.

7 Gulwant Kaur and Anr. v. Mohinder Singh and Ors. AIR 1987 SC 2251 8 AIR 1968 SC 365. 9 (1987)3 SCC 674.

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In the case of Eramma v.Veerupana10 where a widow was given maintenance and life estate for residence in a specific portion of the Residential House when she had filed a suit for partition. The Supreme Court held that on her death no coparcenory property or interest was left behind as she did not acquire any right, title or interest by the decree.

It is now judicially settled that once a widow has succeeded to the property and acquired an absolute right under the Hindu Succession Act, 1956 she cannot be divested of the right of remarriage. Under section 8 of the HSA, the property of a Hindu male dying intestate (i.e. without leaving a will regarding how his property ought to be distributed), devolves first on his Class 1 heirs. Class 1 heirs are son, daughter, widow, mother in equal shares. However if there is more than one widow, then all the widows together shall take one share according to section 10 of the HSA. If the son or daughter predecease the father, then their share will devolve in equal parts to their children and the widowed daughter in law in the case of the son. In case even the grandchild predeceases the Hindu male, then the share of the concerned grandchild will devolve on his or her children and widowed grand-daughter in law. If there are any Class 1 heirs available, then the other heirs are excluded by them.

Under the HSA property devolves in equal shares among daughter, son, widow and the mother of the deceased. It was held in the case of Sudama v.Jagendra11 that two classes of heirs are provided in the Act, as will appear from the schedule, the primary heirs of class 1 share equally. Failing class 1, heirs listed as class 2 will succeed. In other words so long as deceased leaves behind any class 1 heir, he or she shall exclude the class2 heirs altogether from takingany share in the estate. It was held in the case of Kuppuswamy v.Authorised Officer12 that when a man dies leaving behind two widows shall succeed to the properties as co-owners shall succeed in equal shares for enjoyment of the same. Section 14(1) of the HSA would then make them the absolute owner and on death of one of the widows the surviving widow will be entitled to only one half of the property and not the entire property

10 AIR 1966 SC 1897. 11 AIR 1987 Pat 239 12.AIR 1996 SC 2816.

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Maintenance of Widowed Daughter-in-law Under Section 19 of the HAMA

The Right to Maintenance of Hindu widow is a pre-existing right, which existed under the shastric law long before the passing of any of the legislations. The act merely recognized the position as it existed under the shastric Hindu law anf gives it a statutory backing.13 Section 19 of HAMA governs the rights of widowed daughter-in-law to claim maintenance.14 In the case of Kapur Kaur v.Kishan Singh where the daughter in law was given a plot of land, after she filed suit for maintenance, the court granted a certain amount of maintenance taking into account the gift made to her being capable of affording that amount of maintenance.15 It was observed by Kerala high court that the daughter-in-law would be entitled to maintenance if she was dependent on the father-in-law. Provided that her own assets are not adequate enough for maintaining herself.16 The case of Parul Bala v. Banghshidhar17 laid down the various circumstances under which the father-in-law would be under an obligation to maintain members of the family out of the family property. It stated:y Where there was ancestral property in the hands of the father, he was legally bound to maintain the sons widow out of such property. y Where there was no ancestral property in his hands, the father-in-law has no legal obligation to maintain a daughter-in-law out of the self-acquired property, but nevertheless, he was under a moral obligation to maintain all family dependents, which would include a sons widow. Even though sub-section(1) of this section is general in terms and might suggest a personal liability of the father-in-law, the scope of this sub-section is, in fact, limited by Sub Section (2) which says that the father-in-law is liable to pay maintenance only if he has coparcenory property sufficient to support the daughter-in-law18. In the case of T.A Lakshmi Narasamba v. T.Sundaramma19 where after the petitioners husband died the father in law disposed off his

13 Balbir Kaur and Ors. v. Harinder Kaur and Ors, AIR 2003 P&H 174. 14 Shrimati Rani Bai v. Shri Yadunandan Ram and Anr. AIR 1969 SC 1118. 15 AIR 1970 P&H 270. 16 Kunji Thomman and Ors. v. Meenakshi and Ors. AIR 1970 Ker 284. 17 AIR 1971 Cal 270. 18 Sharma Preeti, Hindu Womens Right to Maintenance (Delhi: Deep and Deep Publications) at p.227. 19 AIR 1981 AP 88.

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property by will. It was held by Andhra Pradesh High Court that the liability of the father in law to maintain sons wife devolves upon person who takes property from him and liability does not cease even if done is a stranger. In the case of Bitola Kunwari v. Girand Singh20 the Allahabad High Court stated that in case a widow is unable to obtain maintenance from her son or daughter or from her husbands estate, she is competent to institute a suit for obtaining maintenance from the heirs of her deceased father in law as dependent upon him. In the case of Anlu Ram v. Usha Rani 21 it was held by the Punjab and Haryana High Court that though it is not specifically mentioned in the Act, the court has power to grant interim maintenance under section 19 of the Hindu Adoption and Maintenance Act,1956. It was also held in the case of Sachchanand Wadhwani v.Nisha22 by the Madhya Pradesh High Court that when a widow was forced to leave her husbands house without any property she was entitled to maintenance from her father-in-law. It was held in the case of Balbir Kaur v. Harinder Kaur23 that the widowed daughter in law of a pre deceased son is entitled to claim right of maintenance against the self-acquired property of her father in law, whether it is in his hand or in the hand of his heir or done.

20 AIR 1983 All 425 21 2002(2) CCC 80. 22 AIR 1990 MP 247. 23 AIR 2003 P&H 174.

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Conclusion :The Hindu succession Act, 1956 brought about some changes. The most important changes were (a) to give equal rights to sons and daughters in their father and mothers property and (b) abolish the concept of a widows estate which gave her only a limited life estate. But it did not do away with the concept of coparcenary nor did it give the daughter aright by birth in ancestral property.

Bibliography:
y y y http://timesfoundation.indiatimes.com/articleshow/msid-47870463,curpg-3.cms Dr. Paras Diwan,Family Law, Ninth Edition:2009,Allahabad Law Agency. Indira Jaising, Law of Domestic Voilence, Second Edition:2007, Universal Law Publishing Co. Pvt. Ltd.

Cases:
y y y y y y
y

Palasseri Velayudhan and Anr. Vs. Palasseri Ithayi and Ors., AIR 1994 Ker 267. V. Tulasamma & Ors vs V. Sesha Reddi, AIR 1977 SC 1944. Yemanappa Dudappa Marve v.Yelubai, AIR 2003 Karn 396. M. Shanmugha Udayar v. Sivanandam and Ors., AIR 1994 Mad 123. V.Tulasamma v. Sesha Reddy, AIR 1997 SCC 99. Raghubir Singh and other v. Gulab Singh and others, AIR 1998 SC 2401.
Gulwant Kaur and Anr. v. Mohinder Singh and Ors., AIR 1987 SC 2251.

y
y

Balbir Kaur and Ors. v. Harinder Kaur and Ors, AIR 2003 P&H 174. Shrimati Rani Bai v. Shri Yadunandan Ram and Anr. AIR 1969 SC 1118. Kunji Thomman and Ors. v. Meenakshi and Ors. AIR 1970 Ker 284.

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y y y y

Parul Bala v. Banghshidhar AIR 1971 Cal 270. Bitola Kunwari v. Girand Singh AIR 1983 All 425. Sachchanand Wadhwani v.Nisha, AIR 1990 MP 247. Balbir Kaur v. Harinder Kaur, AIR 2003 P&H 174.

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