“Freedom can’t be achieved unless the women have been emancipated from all kinds of oppression,” – Nelson Mandela
Widowhood is cursed in India, a woman is framed to be a ‘Husband Eater’ after the death of her husband. The rights of a widow have long been discriminated within a sorts of religion, class, caste, especially when it comes to her re-marriage. Also, they were referenced with conditions of her widowhood such as isolation, exclusion, non-participation in social events, etc. for them, being a widow is not only curse but also a punishment of the wrongdoing they didn’t even commit.
In short their condition is really heart-wrenching in India. Widows have faced various types of marginalization, as they were sent back to their parents’ home without any property rights of their own or they were isolated and excluded from social interrogations, also during historic times widows were forced to jump into the pyres of their deceased husband which was referred as “Sati Pratha”, during British India it was abolished by Governor-General Lord William Bentinck on 4th December 1829.
In 1856 during British rule the law of re-marriage of Hindu widow had come into force which referred as The Hindu Widow’s Remarriage Act, 1856 and it legalized the re-marriage of a Hindu widows.
After being bereft of all kind of social and financial standings, inheritance laws for widows have aimed to support them through economic liberation. Though it had been a landmark decision but it deprived Hindu widows to get share in the property of deceased husband after re-marriage.
In 1983 the Hindu Widow’s Remarriage Act, 1856 was repealed and Section 2 of the Hindu Widow’s Remarriage (Repeal) Act, 1983 provides the right of widow in deceased husband’s property to be cease on her remarriage. It also provides the rights and interests in her deceased husband’s property by way of maintenance or by inheritance of her husband or to his lineal successors, by virtue of any will or testamentary disposition, without express permission to remarry.
It includes that, if she died then the subsequent heirs of her deceased husband or other person entitled to the property of her death shall thereupon succeed to the same.
Section 4 of the Hindu Succession Act, 1956 has an overriding effect on all other enactments and there was no provision in the Hindu Succession Act, 1956 which was pari materia with Section 2 of the Hindu Widow’s Remarriage Act, 1956.
Section 8 of The Hindu Succession Act, 1956 provides that the property of male Hindu dying intestate shall devolve upon the heirs being relatives laid out in Class I of the schedule. If, there is no heir of class I then upon the heirs being the relatives specified in class II of the schedule and so on.
Whereas, Section 14 of the Hindu Succession Act, 1956 clearly states that any property possessed by a female Hindu, whether acquired before or after commencement of the Act, shall be held by her as full owner thereof and not as a limited owner, also the explanation of Section 14(1) clarifies that property includes both movable and immovable 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, or by purchase or by prescription, or in any other manner whatsoever etc.
In Chando Mehtain & Ors, Vs. Khublal Mahto & Ors. [AIR 1983 Patna 33],
in this matter the partition suit for an ancestral property of Khubo Mahnto was filed by Rukmini Debi being a widow of Nanku Mahnto who was one of the successors of Khubo Mahnto not being made a party to the suit because she remarried to Chandar Mahnto.
In this case the Supreme Court held that, the Hindu Widow’s Remarriage Act, 1956 has not been repealed by the Hindu Succession Act, 1956 as Section4 of the latter Act has an overriding effect, which abrogates the operation of the Hindu Widows Remarriage Act, 1856.
According to Section 4 of the Hindu Succession Act all existing laws whether in the shape of enactments or otherwise shall cease to apply to Hindus in so far as they are inconsistent with any of the provisions contained in this Act. Therefore, it was held that Rukmini Debi succeeded to the properties left by her husband after the passing of the Succession Act cannot be divested of the said properties on her remarriage.
In Sanjay Purshottam Patnakar Vs. Smt. Prajakta Pramod Patil [SC 2015 BOM 2217], the petition filed against the order of succession certificate passed in favor of Prajakta Pranod Patil being a widow of Appellant’s brother Prakash Purshottam Patnakar, as she remarried to Pramod Patil the succession certificate granted was invalid and also submitted that after the remarriage she lost all rights over the property of the her deceased husband.
It was held that the provision of Hindu Succession Act, 1956 would prevail over the repealed Hindu Widows’ Remarriage Act, 1856. Section 4 of Hindu Succession Act, 1956, has overriding effect on all other enactments. There was no provision in the Hindu Succession Act, 1956 which was pari materia with section 2 of the Hindu Widows’ Remarriage Act, 1856.
The court also observed that a widow even after she remarries, she can claim over the former husband’s property, as she would qualify as class 1 heir and her deceased husband’s kin will be consider as a 2nd class heir.
LEGAL REMEDIES FOR WIDOW WHEN RIGHTS IN FORMER HUSBAND’S PROPERTY ARE DENIED:
She can send legal notice to the party denying her rights in deceased husband’s property.
She can file suit for partition in civil court claiming her share.
If partition of such property is not possible, the court can auction the properties to give her share to the woman.
She can also seek for injunction to ensure that the property is not sold during the pendency of the suit.
If property is sold without her consent she can add buyer as a party to the suit.
WIDOW’S RIGHTS ON THE PROPERTY WIDOW’S RIGHTS ON THE PROPERTY