The proprietary position of woman in any system of law represents the thought
and the feelings of the community. Hence the proprietary status which a woman
occupied in Hindu law was not only an index of Hindu civilization but also the
correct criterion of the culture of the Hindu race.
The position assigned by the Shastras to the widow and even to the women in
general, both in her family and society was a state of dependence and
submission. "Day and night
" says Manu, "must women be held by their
protectors in a state of dependence; even in lawful and innocent recreations,
being too much addicted to them, they must be kept by their protectors under
their own dominion." "Through independence, the women go to ruin though born
in a noble family.....
It was believed that the dependant and subservient status of women were because
of the fact that they were incompetent to perform sacrifices and to read Vedas.
Because of her dependent status, her right of having property was also treated
with dislike or disfavor as there was general reluctance displayed by the
ancient Rishis to allow females to hold property. The cause of reluctance was
that in Smritis, the property was intended for the performance of religious
The primary obligation of a person holding property was to perform religious
rites and ceremonies and a person was considered as a sort of trustee for the
performance of those rites and ceremonies. Since the females were declared by
the Smritis to be incompetent to perform religious ceremonies.
Therefore, her right to property was very nominal and whatever little she used
to get, that too was hedged with limitations. For instance, her husband could
exercise his veto even over certain kinds of Stridhan. So the question of having
absolute ownership in the true sense of the term (which includes the right of
alienation) did not arise with regard to the property which did not form her
Stridhan. She had only the right to have and enjoy, that property for her
sustenance and maintenance during her lifetime and this type of right in the
property was known as "Woman's Estate".
Rights Of A Widow Over Stridhan Pre 1956.
During widowhood, the woman has an absolute and unrestricted right of alienation
of property, irrespective of the fact whether it has been acquired prior to or
after the death of the husband.
Thus she can alienate the properties without any constraint. So far as the
question of succession to the property of a woman of bad character is concerned,
her bad character does not extinguish the blood relationship. Thus her near
relatives, who have not professed the profession of bad character, can inherit
the property. Her legitimate son will thus exclude her illegitimate
daughter and her husband will exclude his illegitimate son.
Rights Of A Widow Over Stridhan Post-1956:
under Hindu Succession Act.
A Widow is a limited heir, acquires the property for her life but she is the
owner of the property thus inherited as a tenant. But her right of alienation is
limited and after her death, the property does not pass to her heirs rather to
heirs of the last full owner thereof. Therefore, the characteristic feature
of a woman's estate is that the female take it as a limited owner, however, she
is an owner of this property in the same way as any other individual can be the
owner of his or her property subject to basic limitation:
- she cannot ordinarily alienate the corpus and;
- on her death, it devolves upon the next heir of the last full owner.
In Janki vs. Narayaswami
, the Privy Council has observed:
Her right is of the nature of the right of property, her position is that of the
owner; her powers in that characters are, however, limited. So long as she is
alive, no one has vested interest in succession.
Earlier Moni Ram vs. Kerry
 the Privy Council said: the whole estate is for
the time vested in her absolutely for some purpose, though in some respects for
only a qualified interest. Her estate is an anomalous one and has been compared
to that of a tenant in tail. It would perhaps be more correct to say that she
holds an estate of inheritance to herself and the heirs of her husband.
whatever her estate is, it is clear that until the termination of it, it is
impossible to say who are the people who will be entitled to succeed as heirs to
her husband. The succession does not open to the heirs of the husband until the
termination of the widow's estate.
Her power of disposal over the property is
limited and it is the limitation that goes to define the nature of her estate.
These limitations are not imposed for the benefit of the reversioners. Even when
there are no reversioners, the estate continues to be a limited estate.
- 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 thereupon succeed to the same.
- Hindu Succession Act, 1956: widows who choose to remarry do have a right
on their deceased husband's property.
- Legal necessity was held by Hindu law as a condition where the widow had
to sell her deceased husband's property. These were conditions where she
needed money for making donations or performing rituals in memory of her
late husband. The daughter's wedding expenses also formed a legal necessity.
Rights Of A Hindu Widow
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.
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.
Hindu Widow's Claim Over Husband's Property
Where immovable property was purchased by a Hindu widow in possession as such of
the estate of her dead husband out of the income of the estate, such property
does not necessarily become an accretion to the husband's estate. The widow has
full power to dispose of it during her lifetime, and it is only when she
manifests during her lifetime a clear intention to treat it as an accretion to
her husband's estate, or allows it at her death to remain undisposed of, that
such property will become part of that estate.
A Hindu widow in possession as such of her husband's estate is not liable to
account to anyone but is at liberty to do what she pleased with the property
during her lifetime, provided only that she does not injure the revision. The
widow of a separated Hindu succeeded as such to the business of her deceased
husband carried it on for a series of with reasonable prudence on the same lines
as it had been conducted in his life time. The business was that of a banker and
money lender and involved from time to time.
The purchase and resale of
immovable property. It was held that as regards immovable property not inherited
from her husband but purchased in the course of the business by her, the widow
was competent to sell again outright without proof of any legal necessity being
requisite, the 'legal necessity' being that the property was sold in the course
of a business which was entitled, if she chose to do so, to carry on. Neither
was it, in individual instances, a proof of absence of 'legal necessity' that
the property was sold for less than the widow had paid for it.
In the event of a man dying with more than one widow, the widows could invoke
law for acquisition and partition of property, which was not a mere struggle for
their share for maintenance. Their right to informally partition the estate
amongst themselves was recognized by the Court.
Whatever limitations there may
be upon the power of alienation of one of the two Hindu widows succeeding as
such to a life interest in their husband's estate, so long as the property
remains undivided; there is nothing to prevent them from affecting a partition
of such estate.
Although Hindu widows taking a joint interest in the inheritance of their
husband has no right to enforce an absolute partition of the joint estate
between them, yet where the widows cannot go on peaceably in the enjoyment of
the property they could by mutual agreement or otherwise separately hold the
property, although they have no right to partition in the proper sense of the
term, and the share of one will go by the right to survivorship, to the other
notwithstanding the separation.
The Act put the widow of a member of a joint family in the place of her deceased
husband, and the husband's interest or right to a share in the joint family
property in all schools, except the Dayabhaga, vested upon his death in the
widow, which she could enforce by claiming a partition in her own right and
independently of any partition taking place between the sons or not.
The rule that the widow succeeds in her deceased husband's property only in
default of his male issue, that is, son, grandson, or great-grandson, was
abrogated by the virtue of section 3 of the Act. She was to be entitled to the
same share as a son along with or in default of the male issue. Even though this
Act widened the scope of rights of the Hindu widow, the Act the widow a limited
estate which was to be held by her only during her lifetime and then reverted
back to her husband's heirs.
- Narada, XIII, 30.
- Manu, Chap. IX. Verse 10
- Brij inder Singh vs. Janaki Kunwar, 1 Cal. LR 318.
- Hira Lai vs. Tripura, 40 C 650: WN679 (FB).
- Meenakshi vs. Himiyandi, .38 M 1144.
- Jagannath vs. Narayan, 31 B 543.
- Prof. U.P.D. Kesari, Modem Hindu Law, 3rd Ed. 2001, p. 364
- Bijay vs. Rrishana, 44, IA 87
- (1916) 43 I.A.207.
- (1889) 7 I.A.115.
Award Winning Article Is Written By: Ms.Zeenat Ul Kubra
Authentication No: NV031942082140-14-1120