Rights and How to Implement Them
Justice Leila Seth (Retd.)
To appreciate the right of a widow it is essential to understand her position in society, her economic status and her state of empowerment. It is also necessary to look at customary law, statutory law and actual practice. Though customary law and statutory law might give a widow certain rights, in actual practice none of these rights might be effective because she is not socially empowered to assert those rights and fight for them. It is in this context that one needs to look at the historical background and the present position.
Widows were always looked upon as inauspicious and were not permitted to attend festive occasions despite the fact that many of the widows were young girls whose marriage had not even beenconsummated. Often the mother-in-law blamed her for being responsible for her son's death. The death of the husband was the start of young women's problems. She was either expected to commit Sati or to go back to her parents. But if she stayed in her husband's family she had to do all the menial work and was ill-treated and not even given proper food. Her hair shaved, her glass bangles broken, she was dressed in white thereafter; she was not allowed to make herself attractive as she was considered a sexual threat to society. She was made to eat vegetarian food in Uttar Pradesh. I know, she was not even allowed to eat Masur dal, onions and garlic, as they were considered "heating". A widow who remained chaste and unmarried was well thought of. Consequently, widow's remarriage was not permitted amongst Hindus except in certain tribal communities.
Widow re-marriage was, and still is, prevalent among tribal communities though it was not permissible among the Brahmins and higher caste communities. In fact among the tribal communities levirate marriage was very common, that is widow re-marrying her husband's unmarried younger brother. This entitled the widow to retain her right on her children and her late husband's property. In certain communities, for example, Bhumij tribals in West Bengal, if a widow decided to marry someone other than her deceased husband's younger brother she forfeited not only her right to her husband's property but also lost her children as the husband's family insisted on her leaving the children with them.
The widows in all communities carried the stigma of inauspiciousness and were thus required not to participate in religious or auspicious social functions such as marriage or other celebrations. A widow was not even allowed to perform the ritual ceremony to welcome her own daughter-in-law.
Reformers like Raja Ram Mohan Roy and others fought for doing away with the evil of Sati and permitting remarriage.
A widow was not allowed to have second marriage unless it was sanctioned by local custom, but in any case, even if permitted, it entailed the forfeiture or divesting of the widow's estate in most cases, as there was settled rule of Hindu law that chastity was a condition precedent for a widow to inherit her husband's estate unless this had been condoned earlier by the husband. Remarriage of widows was legalised in all cases by the Hindu Widows Remarriage Act, 1856.
But the Act provided that all rights and interest which a widow had in her deceased husband's estate would "cease and determine" on her remarriage, as if she had died. (This Act of 1856 was repealed by the Hindu Widows Remarriage (Repeal) Act, 1983 on the recommendation of the 81~ Report of the Law Commission of India. She could however succeed to the estate of her son or daughter by her first marriage who died after her second marriage.
However, the Hindu women's Right to Property Act, 1937 gave better right to Hindu women in respect of property, but gave a limited estate which is held by her only during her life time and then reverts to her husband's heirs. But in view of the limited right becoming an absolute right by virtue of the Hindu Succession Act, 1956, the question of divesting the property on remarriage does not arise. Under section 14 (1) of the Act the widow's limited interest gets automatically converted into an absolute right.
It is now judicially settled that once a widow has succeeded to the property and acquired an absolute right under the Hindu Succession Act, 1956 she cannot be divested of this right on remarriage.
In order to understand the law relating to widows' property rights, we need to appreciate that inheritance and property right are governed by the personal law of the religious communities and differ from area to area-even among communities and castes.
Among Hindus there are two kinds of property (1) self acquired and (ii) ancestral/joint family.
In India there are two major schools of Hindu law governing ancestral property, the Dayabhaga and Mitakshara. The Dayabhaga law prevails in eastern India such as Bengal and other adjoining areas whereas in most of northern India and parts of Western India it is
the Mitakshara law that prevails. In certain parts of western India the Mayukha school is prevalent whereas in some parts of southern India the Marumakkatayam, Allyasantama and the Nambudiri laws prevail.
In Dayabhaga System person held the property as tenants in common. When the father died the property was divided between the heirs and they could hold it together if they wanted but their shares ware defined. Whereas under the Mitakshara systems a male member of the joint family had an interest by birth in the ancestral property. A man could ask for partition of his ancestral property but if he did not, when he died, his interest in the ancestral property was diverted to all male members of the coparcenary. It went to them by survivorship and not succession. Women were not coparceners and did not have any interest by birth in ancestral property. The Law Commission of India in its 174th report has recommended that daughters also be made coparceners. They were only entitled to maintenance i.e. expenses for food, shelter, clothing, education and marriage. However, if partition took place between the male members then mother and wives were entitled to limited interest basically for the purposes of maintenance and on their death the share reverted to the husband or son's heirs. She was not entitled to sell, mortgage or will away that property.
The Hindu Succession Act, 1956 brought about some changes. The most important changes were (a) to give equal rights to sons and daughters in their father and mother's property and (b) abolish the concept of a widow's estate which gave her only a limited life estate. But it did not do away with the concept of coparcenery nor did it give the daughter a right by birth in ancestral property. However, a Hindu male becomes entitled to will away his interest in the ancestral property. If he died without making a will his share would be divided among his heirs. His four primary heirs being his sons, daughters, widow and mother; the others are derivative heirs, i.e. children of pre-deceased son or pre-deceased daughter, widowed daughter-in-law and children of pre-deceased grandson and his widow.
With respect to his self acquired property a Hindu male was entitled to will it away before the Hindu Succession Act, 1956.
By virtue of section 14 (1) of the Hindu Succession Act, 1956 women become absolute owners of the property they inherited. They could sell it, gift it, mortgage it, waste it. After a women's death her property would be divided amongst her heirs. A female's heirs were different to a male's heirs. In the first class they were sons, daughters and husbands. The Supreme Court in Raghubir Singh & Others V. Gulab Singh & Others, Air (1998) SC 2401 held that a right to maintenance of Hindu female flows from the social and temporal relationship between the husband and wife and that right in the case of widow is pre-existing right which existed under the shastric Hindu law even before the passing of Hindu Married Women's Right to separate Residence and Maintenance Act, 1946. These Acts only recognized the position as/was existing under the shastnc 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 be maintained out of 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 Reddy (1977)3 SCC 99 also Ram Kali V. Choudhri Ajit Shankar (1997)9 SCC 613, and held that by force of section 14(1) of Hindu Succession Act, 1956 the widow's limited interest gets automatically enlarged into an absolute right notwithstanding any restriction placed under the document or instrument. Whereas section 14(2) has (field) of its own and applies to instruments, decrees, awards, gifts etc. which creates an independent or new title in favor of the female heirs for the first time. It has no application to cases where the instrument/document either declares or recognizes or confirms her share in property or her "pre-existing right to maintenance" out of that property.
Under Muslim law male can only will sway 1/3rd of his property. A widow is entitled to 118th of her husband's property if there are children, and to 1/4th if there are no children. If a man has two widows they would inherit 118th or 114th depending on whatever or not there are children. A daughter is entitled to half of her father's property if she has no brother. If she has a brother she will get half of whatever share the brother gets. The mother is entitled to 1/3rd of her son's property if there are no children and 116th if he has children.
In practice, both among Muslims and Hindus the widow's place of residence is crucial to the exercise of her right. A widow will get her share of property as long as she lives in her marital home but not if she remarries. This is despite the fact that widow re-marriage is permitted by Islam, but somehow it was not considered "respectful" to take up this option. A Muslim widow clearly had inheritance right in her parental home as a daughter but in practice as among Hindus daughters were not given anything. If a Muslim woman insisted on taking her share she would no longer be welcomed in her parental home and would have to break-up relationships. But she could stay in her parental home as dependent on becoming a widow in case she was not able to do so in her marital home.
It is important to see how widows regard themselves with respect to property and what are their social perceptions and how aware are they of the law. People take recourse to statutory law only when there is dispute, but normally widows do not like raising disputes and want to live in harmony especially as they feel socially dependent. They like to practice what is in keeping with the societal community norms. They feel that a widow's rightful home is with her husband's family and all her rights are in her marital home and she does not want to assert the rights as a daughter in her father's home for fear of spoiling the relationship. As a judge I personally found daughters giving affidavits in court relinquishing their right in favor of their brothers on their father's death. When I questioned them I found they were aware of their rights but did so in the interest of family harmony with their brothers which they valued more than the property. Often widows are willing to forfeit their property rights in favor of their adult sons whom they perceive will look after them. But a widow with minor son claims the rights in her husband's property, a widow with daughters, with some difficulty, manages to claim her rights in her husband's lands, but a childless widow finds it very difficult to do so because the community does not perceive it as her social right. Thus, though in principle, the widow has the right and she is aware of the rights, in practice her rights have become limited and restricted either because her father-in-law refuses to give her a share of the property or her brothers-in-law refuses to give her a share of the property or her brother-in-law decide to act tough or because her adult sons will not allow her a share. This is basically based on the old conception that widows were given property rights to enable them to maintain~ sons and that is why she was originally given only limited usufructory rights, to use the property while her son was a minor. But even women who know the present law and know that they have rights are not willing to go and meet the officials or to go court to assert their rights. As I have noticed above, if their share is not given to them in their father's home voluntarily, they do not want to go to court for this purpose and relinquish their rights easily.
A young widow is often viewed as an adversary and the mother-in-law often taunts her as being responsible for her son's death. Her own parents try to provide emotional support and help to ensure that she gets her share of property but prefer her to stay in her marital home rather than come back to them. The ideal widows according to the community appear to be the ones "who obey all restrictions, observe all prescriptions and wear all symbols of Hindu widow despite the fact that they find it stifling to eke out a living while remaining imprisoned within the four walls of their houses. They cannot go and work outside, or eat anything which is nourishing or dress up because it would tempt the males of their husband's village."
With regard to remarriage the perception of widows is that unmarried men do not like to marry a widow and widower can easily get an unmarried girl as second or third wife. However, a childless widow is preferred for remarriage, to one with children.
It has been brought to my notice that the family pension which is being given to the widow of an army personnel is discontinued on her remarriage. This appears to be rather unfair. A similar unfairness is there in the case of an army person who remarries after retirement. It is said that on his death the widow does not get the family pension. The explanation given being that she was not his wife when he was in service. If such rules that have been indicated exist in the army then it is necessary to lobby and ensure that they are changed because a widow's right to her pension should not be snatched away if she exercises her right to marry.
It is necessary to build social awareness and to change the mind of people towards widows. It is necessary to educate the girls so that they can be independent and fend for themselves and fight for their own rights.
One of the biggest traumas a widow faces after the death of her husband is the whole 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 for her that it becomes impossible for her to remain there. If she is living in accommodation provided by the employer of her husband then that has to be vacated and she has to find a roof over her head. She may or may not be welcome in her parental home and is at mercy of relatives and others. It is thus essential that some thought is given to this aspect and some sort of shelter is organized during the life time of her husband. If joint family land has been partitioned then it should be registered in the name of the husband and wife so that after his death she can continue to look after the fields and support herself and her children.
Public pressure must also be built up to give her dignity and respect. Non-Government Organizations must take up the role of social reformers and press ahead to make life easier for her. If possible, training for employment or compensatory job opportunities should be examined—where a relative is given a job in lieu of the deceased. Smaller entrepreneurial units be made available such as STD telephone booths or gas agencies so that a widow has some means of livelihood and does not have to take recourse to migrating to Vrindavan or Varanasi as a last resort