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Succession to the Former Limited Estate of a Remarried Hindu Widow Under the Hindu Succession Act, 1956 (A case for rethinking)
by V.S. Anjaria*
Cite as : (1973) 1 SCC (Jour) 17
I
1. 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. Several High Courts have opined that the estates specified in Section 2 are what are known in law as her "limited" estates and not the absolute ones. A Hindu widow, therefore, losses her rights, etc. in her limited estate and not in absolute estate, on her remarriage. After coming into operation of "The Hindu Succession Act, 1956" (for short, hereafter referred as "Act of 1956"), these limited estates of a Hindu widow are transformed into absolute estates of hers as provided in its Section 14. A question therefore recently had come up before several High Courts whether a Hindu widow loses her rights, etc. to her these former limited estates which have now become absolute ones, after her remarriage. As the estate taken by a Hindu female under Section 14(1) of the Act of 1956 is not defeasible under any circumstances, these High Courts have rightly decided that remarriage of a Hindu widow is now no longer a ground for divesting her of her right and interest in these absolute estates. In other words, on the remarriage of a Hindu widow, her former limited estates which are now enlarged into absolute ones will not come into the ambit of Section 2 of the Hindu Widow's Remarriage Act, 1856 so as to pass to the next heirs of the deceased husband on her remarriage, but they will continue to be her absolute ones in spite of her remarriage. The result is that if a Hindu widow dies intestate after her remarriage, her these estates will pass to her own heirs as her own property. This position of law will have important implications, after her death, on the distribution of her these estates, and on the rights of her heirs to them under the Act of 1956.
II
2. The first implication of continuance of former limited estate of a Hindu widow as her absolute one even after her remarriage, will be, that if she dies leaving children of her former marriage as well as of last marriage, then all of them together with the husband of her last existing marriage will be entitled to succeed to her former limited estate as her heirs under entry (a) of Section 15(1) of the Act of 1956. If she dies without leaving any issues, then her said husband shall inherit her said property. The effect of this order of succession will thus be, that some part of her former limited estate, and in certain circumstances, her entire former limited estate, shall pass to the heirs by new marriage. As these heirs by her new marriage cannot be truly said to be related by blood — as contrast with heirs related to the family through "daughter" — to the family to which the former limited estate belonged, this order of distribution of her this property, on her death, will lead to the drift of this property from the fold of the original family.
3. The other implication of making issues of her new and former marriage as equal heirs to her former limited estate will be that the issues of her new marriage will also get right of pre-emption when any of issues proposes to transfer his or her interest in the said estate as her heir as laid down in Section 22 of the Act of 1956. If any issues by her new marriage offers highest consideration for the purchase of interest to be transferred, then he shall be preferred to the exclusion of other heirs. The idea underlying behind insertion of this Section 22 to prevent the transfer of property to a person who is outside the fold of the original family is thus likely to be defeated in such an eventuality.
4. The third and last interesting consequence of giving equal rights of inheritance to her heirs by her new marriage with heirs of her former marriage will be that under Section 23 of the Act of 1956, if the former limited estate of the deceased widow consisted of a dwelling-house in occupation of any of the heirs of her former marriage, then the daughters of her former as well as new marriage — albeit, if she satisfies conditions on the proviso of this section — will have right of residence in it. The situation will be vice versa if the dwelling-house is in occupation of any heirs of hers by new marriage. In any event, it will result in allowing the female i.e. daughter of other family to reside with the opposite family of heirs. This will lead to many inconvenient effects on both the sides.
5. The scheme of succession to an estate of Hindu widow — which was a limited one formerly — emerging from the different provisions of the Act of 1956, thus show that it will lead to the disruptive influence in the family life in our society. The degree of this disruptive influence will increase with the number of times a Hindu widow has remarried before her death. The scheme of succession under any legal system should be such as will decrease, if not avoid, the disputes over the property, and preserve the harmony and cohesion in the family — of which a society is constituted. For these reasons, the present scheme of succession to the former limited estate of a remarried Hindu under the Act of 1956, needs rethinking.
III
6. The simplest solution of the problems arising out of the problems arising out of the present scheme of succession to the former limited estate of a Hindu widow under the Act of 1956, is to make the absolute estate of a Hindu widow which was limited one in law, revertible to the heirs of her husband on her remarriage. For this a clause should be added to Section 2 of the Hindu Widow's Remarriage Act, 1856. But such amendment in the law will cut at the root of the concept of absolute character of estate conferred on her under Act of 1956. This is neither desirable nor feasible in these days
of women's lib. The attempt should, therefore, be made to regulate the succession to her former limited estate in such a fashion that it may not drift further from the original source of its inheritance, rather than to attempt to curb the powers of a Hindu widow over it during her lifetime. With this object, the following amendments can be usefully introduced in the scheme of its succession under the Act of 1956.
7. To retain the property in the fold of the family to which it belonged, Sections 15 and 16 of the Act of 1956 be amended as follows —
(i) a rule be added to Section 16 that if female dies intestate leaving her estate comprising her former limited estate which has now become absolute, and her other absolute estate, then in matter of succession to her former limited estate, the son and daughter of her that marriage (including the children of any such predeceased son or daughter) to which this limited estate relates shall succeed to it to the exclusion of her other heirs under entry (1) of Section 15;
(ii) a clause (c) be added to the present Section 15(2) to the effect that the former limited estate of a female Hindu which has become absolute under the present Act shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) by her marriage to which this limited estate relates, not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of husband of her said former marriage.
Note:— The present sub-clause (b) of clause (2) of Section 15 of the Act of 1956 seems to provide specially for the succession of that type of former limited estate of a remarried Hindu widow which she has inherited as heir from her first husband or father-in-law. But as the limited estate of a Hindu widow can consist of the property other than that which she may have inherited as an heir from her husband or father-in-law, this sub-clause (b) of clause (2) of Section 15 is not a full answer to the problems posed in this article. There is, therefore, necessity for grafting a new sub-clause to this clause (2) of Section 15 as detailed above. Further, the present clause 2(b) does not seem to be happily drafted. Hence, the addition of a new sub-clause to clause (2) as suggested above will not only supplement the present clause 2(b), but will also clarify the intention of the legislature underlying it.
8. Another devise to make possible the retention of the former limited estate of a Hindu widow within the fold of the family which is source of inheritance, without disturbing the present order of succession to it, is to confer a right on the heirs of a Hindu widow of her former marriage who are entitled to succeed to it, to purchase the said estate from the heirs of her second marriage who may have succeeded to it under present order of succession. This right be enacted by adding a new section to the present Act of 1956 on lines — with mutatis mutandis — of a right given under Section 22 of this Act to certain heirs to acquire interest by pre-emption when other heirs are disposing of their shares. A period be prescribed within which this right of purchase should be exercised. This devise will thus leave the rights of the heirs of a Hindu widow by her new marriage, to succeed to her former limited estate undisturbed, but it will make the holding of it in their hands subject to the exercise of right of purchase by the heirs of her former marriage.
9. Section 23 of the Act of 1956 giving right of residence in the dwelling-house to certain female heirs of the propositus (i.e. of the deceased) also needs amendment. This Section 23 as it stands at present, confers right of residence equally on the female heirs of a Hindu widow of her old and new marriage, in the dwelling-house of the deceased widow irrespective of which family of the widow occupies it. This will lead to the complications in the family life. To avoid, it a provision be added to Section 23 to the effect that when dwelling-house is occupied by the heirs of widow's old marriage, then the female heirs of the said old family should only have the right of residence in it, and vice-versa.
IV
10. It may be noted that the framers of the Act of 1956 have though given absolute character to the limited estate of a Hindu widow still they have tried to see — consistent with their idea to give absolute estate to a Hindu female — that her estate should return as far as circumstances permit to the original source of inheritance after her death. Two exceptions engrafted under Section 15(2)(a) and (b) of this Act are pointers of this attempt. They provide that an estate of a Hindu female she has got as an heir of her father and mother or as an heir of her husband, shall, after her death, go back under specified circumstances to the heirs of her parents or husband to whom it belonged. Other provisions in the Act of 1956 aiming to retain the inheritance within the fold of the original family by giving right of inheritance to near relations of the deceased in preference to distant ones are: (1) Preference to full-blood relations against half-blood relations under Section 18;(2) exclusion of uterine relations as per explanation given in the schedule; (3) preferential right to acquire property in certain cases to certain heirs under Section 22. This provision is a clear manifestation of the anxiety of the framers of this Act to prevent the outsider from acquiring any right or interest in the family property; (4) the other positive proof of such intention of the legislature is found in Section 24. It disqualifies certain widows from inheritance as such widow if they remarry. This Section 24 shows a kind of inconsistency in the scheme of succession under the Act of 1956. When, on one hand, this Act disallows a Hindu widow to inherit an estate of her former husband's family because of her remarriage, how fat it is reasonable to allow her to pass in succession her rights in the estate of her former husband's family to heirs of her new marriage?
11. The intention behind all the above provisions of the Act of 1956 is thus to retain the estate on succession, within the fold of the original family or of the source of its inheritance as far as possible. The amendments suggested in this article in the scheme of succession to the former limited estate of a remarried Hindu widow also aim similarly. Their engrafting in the Act of 1956 will therefore be in keeping in line with these provisions of, and the thinking underlying, this Act.
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