INDORE INSTITUTE OF LAW

(AFFILIATED TO D.A.V.V. AND BAR COUNCIL OF INDIA)

B.A.L.L.B. (HONS)

An Assignment of

SUBJECT- HINDU LAW

TOPIC- “RIGHTS OF HINDU WIDOW”

SUBMITTED TO:

ASST. PROF. MS. PRAGYA SHUKLA

SUBMITTED BY:

NAME:SHASHANK GUPTA YEAR: II

SEMESTER: III

MARKS OBTAINED ………………………….

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 CERTIFICATE

This is to certify that SHASHANK GUPTA has successfully completed the project
titled “RIGHTS OF HINDU WIDOW” on the subject HINDU LAW for the partial
fulfilment of the DAVV norms under the supervision of Asst. Prof. Ms. PRAGYA
SHUKLA at Indore Institute of Law.

This project is the record of authentic work carried out during academic year 2019-
2020.

Signature

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 DECLARATION

I, Shashank Gupta, hereby declare that the project titled:

“Rights of Hindu Widows”

Was solely undertaken by myself and that no help was provided from other sources as those
allowed. All sections of the paper that use quotes or describe an argument or concept
developed by another author have been referenced, including all secondary literature used, to
show that this material has been adopted to support my thesis.

I take full responsibility for any kind of plagiarism.

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 ACKNOWLEDGEMENT

This project consumed huge amount of work, research and dedication. Still,
implementation would not have been possible if we did not have a support of many
individuals and teachers. Therefore I would like to extend our sincere gratitude to all of
them.

First of all I am thankful to Indore Institute of Law for their logistical support and for
providing necessary guidance concerning project completion.

I am also grateful to My Teachers for provision of expertise, and support in the

I would like to express our sincere thanks towards volunteer researchers who devoted
their time and knowledge in the implementation of this project.

Nevertheless, I express my gratitude toward my friends and colleagues for their kind
co-operation and encouragement which help me in completion of this project.

Shashank Gupta

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 CONTENTS

ABSTRACT .......................................................................................................................................... 6

INTRODUCTION................................................................................................................................ 7

WHETHER A HINDU WIDOW CAN CLAIM HER RIGHTS IN HER HUSBAND’S

DOES A WIDOW WHO REMARRIES HAVE A RIGHT IN HER FORMER HUSBAND'S

WHETHER A HINDU WIDOW CAN ADOPT A CHILD? .............................................. 11

CONCLUSION .................................................................................................................................. 13

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 ABSTRACT

The women play a significant role in the life of every individual human being. Securing her
better birthrights would mean giving better future to our own society, family and to every
individual. Prior to commencement of the Act of 1956 the property held by a Hindu female
was classified under two heads: (1) Stridhan and (2) Hindu Women’s estate. The former was
regarded as her absolute property over which she had full ownership and on her death it
devolved upon her heirs. The later was considered to be her limited estate with respect to
which her powers of alienation were limited. Such property on her death devolved not on
heirs but upon the next heirs of the last full owner. But section 14 of the Act abolished the
later classification and conferred absolute ownership on her withrespect to every property
acquired by her through lawful means. In this Research we have discussed about the various
rights of a Hindu widow and have also discussed whether a widow claim rights in her
husbands property.

Indian society has been evolving in terms of how widows are treated. In earlier times, they
were subjected to discrimination in various spheres especially with regards to property
inheritance, while what they really required was emotional and financial support to carry on
with life’s journey ahead.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.

RESEARCH METHODOLOGY

This paper based on the method of study and research based on the compilation and analysis
of data.

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 INTRODUCTION

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.1

WHETHER A HINDU WIDOW CAN CLAIM HER RIGHTS IN HER HUSBAND’S

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 life time, and it is only when she manifest during her life time 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 life time, 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 yearswith reasonable prudence on the same lines as it had been
conducted in his life time. 2The 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

1
Carroll L. Law, custom, and statutory social reform: the Hindu Widows' Remarriage Act of 1856, The Indian
Economic & Social History Review, 1983 Dec;20(4):363-88.
2
Halder D, Jaishankar K. Property rights of Hindu women: A feminist review of succession laws of ancient,
medieval, and modern India, Journal of law and religion, 2008;24(2):663-87.

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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 effecting a
partition of such estate. Although Hindu widows taking a joint interest in the inheritance of
their husband have 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 right to survivorship,
to the other notwithstanding the separation.3

The Hindu Succession Act, 1956, governs the succession and inheritance laws for Hindus,
along with Buddhists, Jains and Sikhs. This is applicable to both women and men. The Act
makes no distinction between movable and immovable property. It only applies to intestate
succession (where there is no will) and to anyone who converts to Hinduism. It has no
application in case of testamentary succession (where there is a will).
4

“The property owned by a person can be classified only as ancestral or self acquired.
Ancestral property is one that is inherited up to four generations of male lineage without any
division, and the right to share in it is accrued by birth,” says Rajesh Narain Gupta, Managing
Partner, SNG & Partners, Advocates& Solicitors. On the other hand, self-acquired property is
the one that has been purchased by the person from his own resources or through any
property acquired from his share in an ancestral property. 5“For a self-acquired property, the
Hindu father continues to enjoy unfettered discretion to will it to anyone he wishes. This can
allow him to discriminate against women with impunity,” says Lakhotia.

3
Basu S. She comes to take her rights: Indian women, property, and propriety. Zubaan; 2005.
4
Derrett JD. The Hindu Succession Act, 1956: An Experiment in Social Legislation, Am. J. Comp. L,
1959;8:485.
5
Sridhar A. The Conflict Between Communal Religious Freedom and Women's Equality: A Proposal for
Reform of the Hindu Succession Act of 1956. Berkeley J. Int'l L.. 2002;20:555.

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When a man dies without a will, it devolves to his heirs according to four categories— Class
I, Class II, Agnates (if two people are related by blood or adoption wholly through males) and
Cognates (who are related to the intestate by blood or adoption but not wholly through
males)—with first preference to Class I heirs. In the absence of any Class I heirs, the property
devolves upon Class II heirs. If a man leaves no Class I or Class II heirs, the property
devolves to agnates, and then to cognates. Here’s how the various women in a man’s life
inherit his property if he dies intestate6.

DOES A WIDOW WHO REMARRIES HAVE A RIGHT IN HER FORMER

This verdict was given when the court was deciding on the case of 65-year-old Lajwanti
Devi, who had moved the court against her daughter and son-in-law. The two had refused to
vacate a portion of the Shastri Nagar house her husband bought in her name.

Additional District Judge Kamini Lau, held the woman as the owner of the house her husband
purchased in 1966 in his wife's name to “provide her a secure life” after his death and her
daughter and son-in-law were only having “permissive possession” of the house.

Archana Sahu, 23, was leading a happy matrimonial life till her husband passed away in a
freak road accident. Friends and well-wishers advised her to get married again. Initially
reluctant, Sahu gave in to family pressure. But, she was in for a rude shock when she realised
that her former in-laws were not interested in giving her a single penny from her late
husband's property, including the house in which she had made a part of the payment.7

Left emotionally aghast, Sahu took the matter to the court. Her lawyer told her that her
former in-laws were relying on the provisions of the outdated Hindu Widows' Remarriage
Act, 1856. The archaic law stated that the limited right and interest that a widow had in her

6
Ibid 5
7
Nagarajan H, Goyal A, Deininger K. Inheritance law reform and women's access to capital: evidence from
India's Hindu succession act. The World Bank; 2010 Aug 23.

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deceased husband's property would cease to exist if she remarries without permission, and the
next heirs of her husband shall be the successors.8

But, according to Section 8 of the Hindu Succession Act, 1956, which provides the general
rules of succession in case of males, the following would be the order of succession:

 First to Class-I heirs, which includes the deceased man's children, widow, mother, etc.
 Second to Class-II his father, siblings, etc.
 Third to the agnates (related through a male link) of the deceased.
 Fourth to the cognates (related to a female link) of the deceased.
This is why ruling in Sahu's favour, the court held that the provisions of the Hindu
Succession Act, 1956, would override the provisions of the repealed Hindu Widows'
Remarriage Act, 1856. The court held that even after remarriage, a widow would qualify as
Class-I heir, and her late husband's kin would still be the Class- II heir. The judge concluded
that a woman doesn't lose the right over her dead husband's properties — moveable and
immoveable — even if she marries.9

In the same breath, Section 23 of the Hindu Succession Act, disentitles a woman from
seeking partition in respect of a dwelling occupied by a joint family until the male heir
chooses to seek partition of the property to divide the respective shares. This is why,Sahu will
have to wait till the head of her late husband's family divides the shares among the legal
heirs.

Inserted in the Act in 2005, this Section gave daughters the same right as sons to reside in and
claim inheritance in the ancestral property but failed to talk about widows seeking a share in
their deceased husband's property. In 2008, the Supreme Court also held that a widow, who
remarries cannot be deprived of her share in her dead husband's property despite a change in
her marital status.10

8
Ibid 7
9
Jain PC. 21_Women's Property Rights under Traditional Hindu Law and the Hindu Succession Act, 1956:
Some Observations.
10
Singh MI. RIGHTS OF HINDU WOMEN IN ANCESTRAL PROPERTY: A REVIEW OF SUCCESSION
LAWS.

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WHETHER A HINDU WIDOW CAN ADOPT A CHILD?

There were disputes over authority to adopt when the husband had given the widow the
instruction to do so. The adoption by a Hindu widow acting in accordance with authority
given to her by her deceased husband is an adoption not to herself, but to her husband, and
was therefore considered valid according to Hindu law. A Hindu father can by word or
writing nominate a guardian for his children. The nomination took place after his death. He is
unrestricted in the choice of a guardian, and may exclude even the mother from guardianship.
Widow's right over husband's estate valid even if the adoption of a son was found invalid or
valid later In a complex case : after adopting a son to her deceased husband a Hindu widow in
a suit by an alleged reversioner against her to set aside the adoption on the ground that she
had no authority from her husband to make the adoption alleged in her written statement and
stated in the Court, through her pleader that she had authority to make the adoption and that it
was valid. The suit was dismissed because the plaintiff was found not to be a reversioner. The
widow then brought a suit against the adopted son to set the adoption aside pleading that she
was not vested with authority from her husband to adopt and denied having made the
adoption. The adopted son contested the suit and it was decided by the Courts on the
evidence on that issue that the adoption was valid. In a suit by an alleged reversioner to the
estate of her husband against the adopted son for a declarationthat the adoption was invalid
and for possession of the estate. It was finally decided by the High Court that notwithstanding
the personal estoppel which bound her, the widow represented the estate on the question of
fact as to whether the defendant (respondent) had or not been validly adopted. The appellants
were not parties to the widow's suit against the adopted son. The principle of res judicata had
been applied by the Courts in India so as to bind reversioners by decisions in litigation fairly
and honestly given for or against Hindu females representing estates. The Court could not
decide that a Hindu lady, otherwise qualified merely owning to personal disability or
disadvantage as a litigant, although the merits of the case were tried and fair and honest. 11

11
Mitter DN, The position of women in Hindu law. Genesis Publishing Pvt Ltd; 2006.

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 WHETHER ALIENATION OF PROPERTY BY A WIDOW VALID?

The construction of a deed of sale executed by a Hindu widow of property held by her as heir
of her husband in favor of the appellant, she conveyed her absolute interest in such property,
and not only the limited interest of a Hindu widow. This decision was conditional upon the
fact : (a) that the husband did not leave property the produce of which was sufficient to meet
her necessary expenses, (b) that she had been obliged to borrow money to provide the
ordinary necessities of life (c) that there were ancestral debts still unpaid, and creditors
pressing for payment and (d) the only way to discharge them was to sell a portion of the
property of her deceased husband, recitals which were necessary if the executants were
disposing of her absolute interest but serving no purpose if the object was to convey merely
the limited interest of a widow, were held to show that the circumstances were such as to give
her power to dispose of her absolute interest and from which the inference could reasonably
be drawn that it was her intention so to dispose of it. The Judges were of the opinion that all
the parties to it meant that the absolute interest in the property should be conveyed to the
purchaser.12 The interest had been understood as meaning the right to and interest in the
property which had in the particular circumstances, powers, to sell and dispose of, that is
absolute interest and not merely meaning the right and interest which a widow normally took
in the immovable property which her husband owned at his death and left after him. A Hindu
dedicated whole of his property in favour of an idol. It was provided in the deed that the
settler should apply for mutation of names in favour of the idol, and that he should use the
income of the property for the expenses puja and rajbhog and for the repair of the temple. The
first settler was the man himself, after him his wife, and thereafter his children and their
descendents.13 The man died after six months and his widow succeeded him. The widow
brought a suit for a declaration that the property was endowed property. The Court noted that
she was not maintaining any accounts relating to the administration of the property and was
only spending one tenth of the total insole on the idol. The Court did not agree to declare the

12
Prasad NV. Remaking Her Family for the Judges: Hindu widows and property rights in the colonial courts of
North India, 1875–1911. Journal of Colonialism and Colonial History. 2013;14(3).
13
Carroll L. Law, custom, and statutory social reform: the Hindu Widows' Remarriage Act of 1856. The Indian
Economic & Social History Review. 1983 Dec;20(4):363-88.

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property as endowed on the groundsthat the widow was aiming to create perpetuity in favour
of the descendents of the settler's daughter.14

CONCLUSION

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 to 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 life time and then
reverted back to her husband's heirs.

14
Ibid 13

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