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Succession Rights Of Women In Hindu Law

Women in India, face numerous problems in their lives and some of them include being deprived of their rights in the society, at home, often face gender inequality and biasness at almost every phase of their lives, still considered as a weaker sex, and many more, all just for being a woman.

No matter how much ‘women empowerment’ or  ‘gender equality’ we talk about or cheer for , but in actual sense , we all can still feel that the root cause which is being borne since ancient times, till now regarding the considerably lower status of women, has not yet completely vanished from the society.

We all agree that due to growing literacy rates, awareness, increasing social media support for upliftment process of women, the condition and status of women are possibly way better than ever before in history.

But not all the credit goes to these platforms. It’s also due to the extreme struggle and zeal to achieve something, that kept women going and overcoming all the hurdles in their process of achieving their rights and keeping pace with men and often leading them in various fields.

But what is still same till now is that, no matter at which place, time, social circle you are, a woman always have to fight for her rights and prove herself to establish them. Such things were never a compulsion nor required for men, neither in past nor at present.

Say in a family of five, with a grandfather, father, mother, son and daughter, the main presumption is that the male descendent will eventually receive the whole property of the family. The female descendents are provided no such right of share or inheritance in ancestral or individual property, since ancient times. For many years women in India have been denied their rights in the ancestral property, due to countless reasons.

Differences in the concept of inheritance laws and succession rights

It may be due to huge differences in the concept of inheritance laws and succession rights in various different customary and personal laws.

Mostly all the different personal laws were reluctant and not favouring the passing on property to women, due to the concept of fear in their minds regarding bifurcation and eventually division of land and losing it to others due to marrying off the women. People used to consider girls as a liability and burden due to many reasons.

Some of them include liability to marry daughters, bear the expenses of their marriage, provided them ‘stridhan’ , dowry to in-laws, seen as mark of disgrace, and a way of the extortion of money from family of women by the in-laws  for lifetime etc. Due to various such reasons female infanticides and other crimes against women used to take place.

The most widely spread tradition, prevalent in societies , since ancient time, is the ‘patriarchal system’ and it’s still in pursuance. Such system had ultimately built a conceptual mindset (mostly negative) regarding the acquisition and transfers of inheritance rights, which are again favouring men, the most.

Women have been subjected to great fear and violence, even in regard with the succession and inheritance, by none other than her own family members. Such members are mostly males and even women are born and brought up in such an atmosphere, where the only recognised work of a women is to take care of family and household work, be a machinery for continuation of future progeny, considered as a tool for the fulfillment of physical desires of men etc. There is no denying of the above stated status of women, in many societies, since ancient time till now.

But with the changing era, status of women have seen various upliftments and even undergone radical changes. It has become much better and stable than ever before. With increasing literacy rates among females and increasing awareness, women are getting to know more about their rights.

Different customary and personal laws vary on the concept of provision of rights to women, in inheritance and succession.

Some of them are:

Under Christians

  • The inheritance and succession principles are governed under the Indian Succession Act, 1925
  • The heirs inherit equal shares irrespective of their gender
  • Daughter has an equal share as her brother in father’s property 
  • Daughter also have full rights over her personal property, on being a major 
  • On death of a person,
  • Mother receives share equal to the others surviving entitled sharers
  • first wife , when legally divorced or not alive , then her children have right in property
  • Second wife , when first wife is divorced or not alive , and children of second wife ( legal) have share in property
 
Besides all these, other provisions may be granted to favour women’s inheritance, but their practical applicability is rarely seen. Women are still suffering a lot, in the process of attaining their valid, legal rights in property and other assets as the males in the family try their best not to indulge women in receiving their shares and to  keep the property tightened under the control and occupation of the males in family.

Under Hindu Personal Law

  • They are governed by the Hindu Succession Act, 1956, which covers Hindus , Buddhists , Jain’s , Sikhs , converted Hindus
  • Property is generally ancestral and self acquired.
  • Under ancestral property, right to inherit is by birth for men and women ( by amendment Act 2005) and no difference between male and female in distribution of property. Their shares may vary, but right to share is not denied to women
  • Under self acquired property, which is one’s own purchased or attained by resources of own or acquired from share in ancestral property, discrimination against women may occur, as the owner has right to decide , to whom it may transfer or pass on the property
  • In absence of a will,
     

Wives are:

  • Entitled to an equal share in husband’s property
  • In case of no other sharers, she inherits whole property of deceased
  • Deceased widow entitled to share in ancestral property like all heirs
  • Married Hindu women have exclusive rights  over her individual property and is sole owner of her assets, whether earned, inherited, gifted etc
  • During divorce proceedings, women are entitled to seek share in property of husband, along with maintenance , alimony , child expenses, court fees , some other expenses as per the case.
  • By the amendment act of 2005

Section 6 of the Hindu Succession Act, 1956    was amended, and it ended indiscrimination against women by providing daughters equal rights in ancestral property as that of a son , that too by birth.

After amendment, daughters were recognised as a coparcener and her material status makes no difference in her rights.
  • Daughters will have same rights as the son, in father’s property, irrespective of her birth date i.e. born before or after the amendment doesn’t matter. But the father should be alive on date of amendment
  • Share of a pre deceased daughter, who would have got it , if been alive at the time of partition, may be allotted to her surviving children.
  • Mother entitled of equal share in property of pre deceased son like other surviving coparceners, if she has no one to depend upon.
Women though have received provisions for seeking their rights by inheritance, by various amendments and laws but it’s complete applied is still denied. Many customary laws still do not assist and provide inheritance rights to whom and no actions are still taken for it. 
  • As under the act of 1956,
    On death of a women, herself acquired property, in absence of a will goes to her husband’s heirs, and not to her parents. This is an essential area of law which requires change. No Such compulsion is there in case of a deceased man. It clearly depicts the huge amount of biasness and inequality done on basis of gender.
     
  • Different states have different local and land laws. Many agrarian laws do not grant women to inherit agriculture land. The main notion behind such laws is very lame. They try to avoid losing land to her in laws and further divide it. They try to keep land within the male Lineage of one family.
     
  • Due to social taboos and orthodox mentality among people in society, rights of women are suppressed and denied at large. Even they are not allowed to raise their voice against the unjust done to them.
     
  • In an inter faith or inter religion marriage, wife entitled to inherit as per personal laws applicable to husband. This concept even varies in case of wife whether have undergone conversion into religion of husband or not.
     
  • Wife’s religion does not prevent her from inheriting. It’s only the husband’s which impact on them

Rights of Widow Under Hindu Succession

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:
  1. The Hindu Succession Act, 1956 applies to Hindus, Sikhs, Jains and Buddhists for intestate succession/inheritance
  2. The Indian Succession Act, 1925, particularly Sections 50 to 56, apply to Parsis for intestate succession.
  3. The Indian Succession Act, 1925, particularly Sections 31 to 49, apply to Christians and Jews for intestate succession.
  4. The law of succession governing Muslims, for intestate succession, is the Muslim Personal Law (Shariat) Application Act, 1937.

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
  1. son, daughter, mother
  2. son of a predeceased son, daughter of predeceased son,
  3. widow of predeceased son, son of a predeceased daughter,
  4. daughter of predeceased daughter, son of predeceased son of predeceased son,
  5. daughter of predeceased son of a predeceased son,
  6. widow of predeceased son of a predeceased son.

It is to be noted that:
  1. Adopted children (sons or daughters) are also counted as heirs
  2. Children born out of void or voidable marriages are considered to be legitimate by virtue of Section 16, and are entitled to succession
  3. 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.
  4. 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).
  5. 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.

Rights of Widow of Christians & Parsis Under The Indian Succession Act

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.

Rights of Widow Under Islamic Law

The Muslim law of succession is a codification of four sources of Islamic law, namely:
  1. The Holy Koran, the Sunna (the practice of the Prophet
  2. The Ijma (the consensus of the learned men of the community on what should be the decision on a particular point),
  3. The Qiya (an analogical deduction of what is right and just in accordance with the good principles laid down by God).
  4. 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.

Case Law
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.

Conclusion
Many steps have been taken to minimise such differences and many more needs to be taken. By establishing a fair system for it, educating women with knowledge about their rights, providing base level helping systems to assist poor and needy women in attaining their rights, by fast and proper implementation of laws and increasing awareness among women betterment of status of women may be achieved. Gender neutral or equal inheritance laws are the grave need of the hour.

References:
  • Dr. Paras Diwan, modern Hindu law: succession, 405-59, 23rd edition 2016, Allahabad law Agency , New Delhi.
  • Dr. Paras Diwan, Muslim law in modern Indian, succession, 212-53, 12th edition 2016, Allahabad law Agency, New Delhi.
  • Riju Mehta, inheritance rights of women: how to protect them and how succession laws vary , Economic Times Bureau,29 July 2019.
Written By Shristi Kundu

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