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.
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 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.
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However, this Act has been repealed. The Bombay High Court had ruled that the provisions of the Hindu Succession Act, 1956 would prevail over the repealed Hindu Widows’ Remarriage Act, 1856.
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.
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 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:
Today, widows have a right to inheritance 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.
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
a) son, daughter, mother,
b) son of a predeceased son, daughter of predeceased son,
c) widow of predeceased son, son of a predeceased daughter,
d) daughter of predeceased daughter, son of predeceased son of predeceased son,
e) daughter of predeceased son of a predeceased son,
f) widow of predeceased son of a predeceased son.
It is to be noted that:
a) Adopted children (sons or daughters) are 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. –
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. –
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).
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.
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.
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.
The Muslim law of succession is a codification of four sources of Islamic law, namely,
a) The Holy Koran, the Sunna (the practice 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),
c) The Qiya (an analogical deduction of what is right and just in accordance with the good principles laid down by God).
d) The Muslim Personal Law (Shariat) 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.
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.
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.
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.
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.
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.
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.
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,
“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.”
The Court also explained the concept of 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.”
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.