INDORE INSTITUTE OF LAW, INDORE

SUBJECT: HINDU LAW

TOPIC: HINDU WIDOWS AND THEIR SUCCESSION RIGHTS

SUBMITTED TO: SUBMITTED BY:

MS. PRAGYA SHARMA PARYUSHI KOSHAL

[B.A. LL.B]

ROLL NO. - 12

SESSION: 2018-2023

SEMESTER – 3 rd

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 CERTIFICATE

This is to certify that Paryushi Koshal , B.A.LLB (HONS.) , 2nd year – 3rd semester has
successfully completed the project assignment in partial fulfillment of requirements for the
knowledge of hindu law provided by Ms. Pragya Sharma prescribed by INORE INSTITUTE
OF LAW .

This assignment is the record of authentic work carried out during the academic year 2019 - 20.

Signature of faculty ----------------------------

Date - ----------------------------

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 DECLARATION

I hereby declare that the project assignment entitled ‘Hindu widows and their succession
rights’ submitted for fulfilling the essential criteria of INDORE INSTITUTE OF LAW, is a
record of an original work done by me under the guidance of Ms. Pragya Sharma , B.A. LLB ,
Indore Institute of Law for the Academic session 2019 - 20.

Paryushi Koshal

BA.LL.B (Hons.)

2nd year – 3rd sem

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 ACKNOWLEDGEMENT

Trust in the lord with all you heart and lean not on your own understandings; in all your ways
acknowledge him, and he will direct your paths.

It is not possible to prepare a project without the assistance and encouragement of other people.
This is certainly no exception. On the very outset of this project I would like to extend my
sincere and heartfelt obligation towards all the personages who helped me in this endeavour.
Without their guidance, help, cooperation and support I would not have made headway in this
project.

I am ineffably thankful to Ms. Pragya Sharma for conscientious guidance and encouragement
to accomplish this assignment.

I extend my sincere gratitude to INDORE INSTITUTE OF LAW for giving me this

opportunity.

I also acknowledge a deep sense of reverence, my gratitude towards my friends and family
members who have always supported me morally as well as economically.

Last but not the least I want to thank THE ALMIGHTY who made everything possible.

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 TABLE OF CONTENTS

1. Abstract

1.1 Keywords

2. Introduction

3. Failure of hindu widow remarriage act, 1856

4. The hindu women's right to property act, 1937

5. The hindu succession act, 1956

5.1. Reforms in succession law through state amendments

6. Overcoming the short-comings of the hindu succession act, 1956

6.1.The Hindu Succession (Amendment) Act, 2005

7. Conclusion

8. References

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 1.ABSTRACT

Religion’s impact on society cannot be overestimated. In the multi-religious country of India, it

is prevalent in the micro-level interactions and practices of commoners and the macro-level
strategies and policies of political parties. Religion thus holds power to make or break societal
structures and practices. Religion was found to have a dual role. Through the sociological lens, it
is among the major reasons for these widows’ marginalized and dejected condition, having been
abandoned by their families and society. The sociological themes comprise interpreting the
doctrine of karma to rationalize widowhood, the formation of negative attitudes toward widows,
and religion as a source of exclusion. Conversely, through the psychological lens, religion
provides them with the necessary psychological resources to cope with several hardships in their
daily lives. The psychological themes comprise seeing misery as an instrument of God,
developing a personal connection with God, surrendering to God, using religious rituals as
distractions from misery and helping others. Widows didn’t had the right over the property of
their husband after his death. In this paper the researcher has to focus over the rights of women
and specially widows in succession.

Much like those of women of any other country, property rights of Indian women have evolved
out a continuing struggle between the status quo and the progressive forces. And pretty much
like the property rights of women elsewhere, property rights of Indian women too are unequal
and unfair: while they have come a long way ahead in the last century, Indian women still
continue to get less rights in property than the men, both in terms of quality and quantity

Keywords: religion, rights, women, marriage, widows.

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 2.INTRODUCTION

The position of women which consists nearly half of population of the country is not so good and
the position of widow is even worse. A woman who has lost her husband by death and has not
remarried is called a widow. Widows are considered to be a marginalized group in India because
they occupy a very low social status in society. Consequently they have to face severe social,
economic and cultural deprivations. Widowhood necessitates establishment of new relations
within the family, with the kin group and with the community. If such new relationships appear
difficult to emerge, widows often have to take refuge in charitable houses or ashrams and stay
away from their families. 1 The historically bore out perceptions of widows is that they are
“inauspicious dependents” on society, despite their rights in law, which are rarely exercised in
practice.

In order to save the plight of women who suffered an account of the death of their husbands the
Brahmo Samaj launched a campaign advocating widow remarriage. Despite Iswar Chandra
Vidyasagar’s campaign that led to the legislation of widow remarriage (1856) in India, Hindu
society had many reservations on this issue. The Brahmos campaigned against such prejudices.
To reinforce their commitment to this many young men of the Brahmo movement made a
positive point of marrying widows. Besides championing the cause of widows the Brahmo Samaj
also came to the aid of unmarried women as well. It was not just the lower castes who suffered in
the caste system. Despite their caste status, the girls from the upper caste families suffered
because of their position. If a suitable bridegroom could not be found for such a girl in their
caste, their options were limited, as marriage to lower caste men was not permitted. These girls
often found themselves being married off to very old men who were already married several
times over. Or worse still, sometimes these girls would be poisoned to death. Widows were
considered inauspicious and were not permitted to attend festive occasions, despite many of them
being young girls whose marriage had not even been consummated. It was very common for the
mother-in-law to taunt her as being responsible for her son’s death. The death of the husband
was only the beginning of a young woman’s problems. She was either expected to commit sati or
return to her parents. If she stayed with her husband’s family, she had to do all the menial work,
was ill treated and not allowed to eat properly. Her head was shaved, her glass bangles broken
and she was confined to white clothes; never being allowed to look attractive since she was

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considered a sexual threat to society. She could only eat vegetarian food. Widow re-marriage
was not permitted among Hindus, except in certain tribal communities.

As we have seen the condition of women where they were not allowed to remarry also as were
considered a burden on the society and were treated in the most inhuman way. The whole
identity of a woman was relevant because of her husband in the absence of whom was
considered to be gone as well. And the irony is that, the people themselves believed that the god
himself will take care of these widows as they had no one left. In a condition like this where
women were not even given basic human rights, succession rights were a bit of a distant dream
in itself at that time.

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 3.FAILURE OF HINDU WIDOW REMARRIAGE ACT, 1856

Throughout the British period in India many thinkers and philosophers tried very hard to change
the perception of society regarding the widows and mainly in the Hindu upper caste as the other
religion like Muslims and Christians widow re-marriage was still prevelant. The main 2
problems of widows were:

 Re-marriage; and
 Property rights

To solve this problem with the help of the British government and many social thinkers and
philosophers an act was passed on 26 july 1956 as a solution to these problems this act was
Hindu Widow Remarriage Act, 1856. However, this act was not very much used as the thinking
of the people still remained the same.

Section 2 of the Hindu Widow’s Remarriage Act, 1856, provides that on her remarriage, a Hindu
widow forfeits her rights and interests in her certain estates specified in the Section, and these
estates pass to the next heirs of her deceased husband as if she were dead, and the next heirs of
her deceased husband would succeed upon the same. This was one of the major reasons for the
failure of the Act of 1856. It was deficient in the sense that it did not guarantee proprietary rights
to widows. This was a factor which came in the way of accepting widow remarriages. The
effectiveness of this Act was lost by the condition of losing property. The Widow Remarriage
Act of 1856 had two serious limitations. First, the widow was heir to the deceased husband’s
estate only if there was no son. Second, her right to property was subject to many restrictions. A
widow’s right to inheritance was modified by the Act No. XXXIX of 1925. By Section 33A of
this Act, when the intestate had left a widow and also his lineal descendants, one third of his
property was to belong to his widow and the remaining two thirds to his lineal descendants.
Where he had left no lineal descendants, but had left persons who were his kindred, one half of
his property was to belong to his widow, and the other half to those who were related to him. If
he had left behind no person, either lineal descendant or kindred, the whole property should
belong to his widow. This legislation gave greater, though limited, rights to the widow.

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 4.THE HINDU WOMEN'S RIGHT TO PROPERTY ACT, 1937 1

Under orthodox law a Hindu widow was entitled to succeed to her deceased husband's property
only in the absence of son, grandson, great grandson. In the case of the Dayabagha School
prevalent in Bengal (also known as the Bengal school) a widow would, in the absence of those
mentioned earlier, succeed to her husband's separate property as well as to his share in the
coparcenary` or joint family property. In the case of the Mitakshara school, the widow in such
case was entitled to her husband's separate property but not to his share in the coparcenary
property. The Hindu Women's Right to Property Act, 1937 gave the Hindu widow, who had
previously been excluded from inheritance by the son, agnatic grandson or agnatic great-
grandson of her husband a right to intestate succession equal to a son's share in regard to her
husband's property liable to devolution by succession (i.e., separate and joint property under
Dayabagha and separate property under Mitakshara) and to the whole of her husband's interest in
property liable to devolution by survivorship (i.e., Mitakshara joint family property).2 According
to section 3(1) of the Act even when a man dies leaving male issue his widow inherits along with
his male issue his separate property if he is governed by the Mitakshara law or all his property
along with the male issue, if he is governed by the Dayabagha law.3

However, the Hindu Widow’s Right to Property Act, 1937 gave better rights to Hindu women in
respect of property, but gave a limited estate, which is held by her only during her lifetime then
reverts back to her husband’s heirs.

1
Act No. XVIII of 1937; BC, Vol. 11, at pp.384-385.
2
Supra note 39, at p. 387.
3
Supra note 47 at p. 858-9.

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 5.THE HINDU SUCCESSION ACT, 1956

In spite of the constitutional mandates done during the time of independence even though some
legislative actions were taken still women continued to be subjugated to patriarchal domination
and deprived of her rights including property rights.

Taking a stand in favour of women rights, the then Prime Minister of India, Pandit Jawaharlal
Nehru expressed his commitment to carry out reforms to remove disparities and disabilities
suffered by Hindu women. Consequently amidst strong resistance from orthodox Hindu section,
the Hindu Succession Act was enacted in 1956 and came into force on 17th june 1956.

The Hindu Succession Act, 1956 is an Act to amend and codify the law relating to inestate
succession among Hindus. The Act applies to all Hindus including Buddhists, Jains and Sikhs
and lays down a uniform and comprehensive system of inheritance and applies to those governed
by Mitakshara and Dayabhaga schools as well as other schools such as Murumakkattayam,
Aliyasantana and Namdudri.

The Hindu Succession Act 1956 reformed the personal law of Hindus and conferred upon Hindu
women absolute and full ownership of property instead of limited rights to property as evident
from Section 14(1) of the Act which provides that any property possessed by a female Hindu,
whether acquired before or after the commencement of this Act, shall be held by her as a full
owner thereof and not as a limited owner. The Apex Court in Punithavalli v Ramanlingam AIR
1970 SC 1730 :(1970) 1 SCC 570, held that the right conferred under Section 14 (1) is a clear
departure from Hindu law, text or rules, and the estate taken by a female Hindu is not defeasible
by any rule of Hindu Law and is an absolute ownership. Explanation appended to sub-section (1)
of Section 14 enumerates different methods by which woman may have acquired property or
would acquire property and states that ‘property’ includes both movable and immovable property
acquired by a female Hindu by inheritance or devise, or at partition, or in lieu of maintenance or
arrears of maintenance, or by gift from any person whether relative or not, before, at or after her
marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other
manner whatsoever, and also such property held by her as stridhana immediately before the
commencement of this Act.
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The Act is not retrospective in operation. But section 14 of the Act has qualified retrospective
application. Section 14 (1) confers an absolute right on the widow who acquired the property on
the death of her husband prior to the commencement of the Act and was enjoying only a limited
estate under the customary Hindu law. However, it will convert only those women’s estate into
full estate provided the ownership of property is vested on her and she has possession of the
estate concerned when the Hindu Succession Act 1956 came into force.

The gender biased scheme in the Hindu Succession Act, 1956 under the guise of joint family
Mitakashara coparcenary which retained only males as coparceners, came under scathing
criticism from the supporters of gender equality. Section 6 of the Act provided that whenever a
male Hindu, having an interest in a Mitakshara coparcenary
property died after the commencement of this Act, then his interest in property would devolve by
rule of survivorship and not in accordance with the Act. However, if the Mitakshara coparcener
died leaving behind a female heir of Class I or a male heir claiming through her, then the interest
would devolve by testamentary or inestate succession in accordance with the Act and rule of
survivorship is inapplicable (Proviso to Section 6). This meant that Hindu females could not
inherit ancestral property by birth right and was excluded from joint family coparcenary under
Mitakshara system. For instance, if a joint family property was divided, then each male
coparcener took his share and female got nothing.

5.1.Reforms in succession law through state amendments

Acknowledging the discrepancies in regard to Hindu women’s position in Mitakshara

coparcenary, certain states, viz., Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and
Karnataka in India, took cognizance, that for economic and social justice to prevail, women must
be treated with equality. Accordingly, the Kerala Joint Hindu Family System (Abolition) Act,
1975 completely and fully abolished male’s right by birth to property and brought an end to the
joint Hindu family system. No one can claim any interest in ancestral property on ground of birth
in the family. By making amendment to section 6 of the Hindu Succession Act, 1956, the States
of Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka in 1986, 1989, 1994, 1994
respectively, declare that daughters are coparceners in Joint family property.

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As per the Amendment Acts of these four states, daughter of a coparcener in a joint Hindu
family governed by Mitakashara system, is entitled to be a coparcener by birth in her own right
in coparcenary property and be subject to similar liabilities and disabilities as incurred by sons.

Thus, by virtue of these amendments, dual rights have been conferred on daughters, as on one
hand, she becomes coparcenary property right owner in her natal joint family, and on the other
hand, she becomes a member of the marital joint family after her marriage.

The Supreme Court in Raghubir Singh and others v. Gulab Singh and others, 8 held that the right
to maintenance of a Hindu female flows from the social and temporal relationship between the
husband and wife and, in the case of 8 AIR 1998 SC 2401. widow, this right exists even under
shastric Hindu law, prior to the passing of the Hindu Women’s Right to Property Act, 1937 and
the Hindu Married Women’s Rights to Separate Residence and Maintenance Act, 1946. These
acts only recognized the petition as existed under the shastric Hindu law and gave it a “statutory”
backing. Thus, 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 retain the possession of that property in lieu of her right
to maintenance

The Supreme Court followed the earlier case of V. Tulasamma v. Sesha Reddy4 ,in which it was
stated that “Hindu joint family widow is entitled to maintenances out of her deceased husband’s
estate irrespective of whether that estate may be in hands of male issues or in hands of
coparceners. The joint family estate in which deceased husband had a share is liable for
maintenance of such widow and for the purpose of maintenance, such widow can follow joint
family property into hands of anyone who takes as volunteer or with notice of her having set to
claim for maintenance.

4
(1977) 3 SCC 99

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 6. OVERCOMING THE SHORT-COMINGS OF THE HINDU
SUCCESSION ACT, 1956

State amendments only brought sweeping reforms in their respective places. But, Hindu women
in other states of India continued to be subjugated to inequality in relation to their property rights
because of the shortcomings of Hindu Succession Act, 1956. To ameliorate the position of Hindu
females, initiative was taken up the Law Commission of India which in its 174th Report on
“Property Rights of Women: Proposed Reforms under Hindu Law” under the Chairmanship of
Justice B. P. Jeevan Reddy made important recommendations, stating that discrimination against
women is writ large in relation to property rights, social justice and demanded that woman
should be treated equally both in the economic and social system.

The recommendations of the Law Commission of India found reflection in the Hindu
Succession (Amendment) Act, 2005 with the amendment of section 6 and omission of sections
4(2), 23 and 24 which had under Hindu Succession Act, 1956 (original Act) perpetuated gender
biasness and inequality.

6.1.The Hindu Succession (Amendment) Act, 2005

The Hindu Succession (Amendment) Act, 2005 after having been passed in both the Houses of
the Parliament on August 2005, received the assent of the President of India on 5th September
2005 and came into force from 9th September, 2005 incorporating the reforms suggested in the
174th Report of the Law Commission of India.

The Amendment Act, 2005 deleted Section 4(2) of the Hindu Succession Act 1956, and paved
the way for women’s inheritance in agricultural lands equally to that of males.

The amendment has done away with the discriminatory state-level tenurial laws and benefited
many women who are dependent on agriculture for their sustenance.

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The Hindu Succession Amendment Act, 2005 has addressed a very pertinent matter relating to
rights of daughters in the Mitakashara coparcenary and thus elevated daughter’s position by
amending section 6 of the Hindu Succession Act 1956. The amended Section 6 deals with
devolution of interest in coparcenary property.

Section 6(1) provides that the daughter of a coparcener in a joint family governed by the
Mitakshara law shall, on and from the date of commencement of the Hindu Succession
(Amendment) Act, 2005, by birth become a coparcener in her own right in the same manner as
the son. She shall have the same rights and be subjected to the
same disabilities in the coparcenary property as that of a son and any reference to a Hindu
Mitakshara Coparcenary shall be deemed to include a reference to a daughter of a coparcener.

Any disposition or alienation including any partition or testamentary disposition of property

which had taken place before the 20th December, 2004, shall not be affected or invalidated by
the provision in Section 6(1) [Proviso to section 6(1)].

Further any property to which female Hindu becomes entitled by virtue of sub-section (1) of
section 6, shall be held by her with the incidents of coparcenary ownership and shall be regarded,
as property capable of being disposed of by her by will and other testamentary disposition
[section 6(2)].Section 23 of the Hindu Succession Act, 1956 has been omitted by the
Amendment Act, 2005, as a result of which, at present all daughters, both unmarried and
married, are entitled to same rights as sons to reside in and to claim partition of the parental
dwelling home.

The Amendment Act, 2005 has also omitted section 24 which had disqualified certain widows on
remarriage from succeeding to the property of inestate. Now the widow of a pre-deceased son or
the widow of a pre-deceased son of a pre-deceased son or widow of the brother can inherit the
inestate’s property even if she has remarried.

Moreover the Amendment Act, 2005 has added some more heirs to the list of Class I heirs who
are daughter’s daughter’s daughter, daughter’s son’s daughter and son’s daughter’s daughter and
daughter’s daughter’s son.
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 7. CONCLUSION

Hence it can be noticed that prohibition of widow remarriage was not something contemplated
by the Vedas but was introduced by men so as to maintain caste hierarchy and to suppress
women in every walk of life. In spite of various enactments being made to improve the
conditions of widows, it cannot however be said that widows in India are a free and happy lot.
This can be seen from the incidence of sati committed by Roop Kanwar in Deorala in Rajasthan
in 1987. She was eighteen years old and her husband of eight months died of gastroenteritis. She
jumped into the funeral pyre even before her parents could come to the village. But later even her
parents and brother accepted it and conducted a huge ceremony on the twelfth day in
commemoration of her valour. This shows that the mind set of the people towards widows has
not changed much in spite of the country undergoing social and economic change. Lot more is
required to be done to remove the stigma attached to widows. One of the greatest traumas a
widow faces after the death of her husband is the entire question of support or shelter; how and
where can she live. If she is living with her in laws, she is normally thrown out or life is made so
difficult that it becomes impossible for her to remain there. If she is living in accommodation
provided by the employer of her husband then that must be vacated. She may or may not be
welcome in her parental home, and is at

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 8.REFERENCES

[1] Widows in India: Social Neglect and Public Action, edited by Martha Alter Chen, Sage
Publications, (1998).

[2] Sources of Indian Tradition edited and revised by Ainslie Embree: Second Edition, Columbia
University Press, New York, Vol. 1 (1988).

[3] Mahadev L. Apte, Lokahitavadi and Chiplunkar, V.K., Spokesmen of Change in Nineteenth
Century Maharashtra, Modern Asian Studies, Vol. 7 No. 2 (1973).

[4] Seth, Liela, Former Judge of the Delhi High Court, Former Chief Justice of Himachal
Pradesh, and presently a member of the Law Commission of India, New Delhi.

[5] Raghubir Singh and others v. Gulab Singh and others, AIR 1998 SC 2401.

[6] V. Tulasamma v. Sesha Reddy, (1977) 3 SCC 99. [8] Ram Kali v. Choudhri Ajit Shankar,
(1997)9 SCC 613

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