WIDOW RIGHT TO PROPERTY:

DISTINCTION WITH REGARD TO RELIGIONS

Submitted by

R.GOWTHAM

Reg. No. BA0150017

Under the Guidance of

Ms. DEEPIKA S
Assistant Professor

TAMIL NADU NATIONAL LAW SCHOOL

(A State University established by Act No. 9 of 2012)
Tiruchirappalli
Tamil Nadu 620 009
SEPTEMBER 2016
Ms. Deepika S
Assistant Professor in Family law II
Tamil Nadu National Law School
Tiruchirappalli
Tamil Nadu 620 009

CERTIFICATE

This is to certify that the project work entitled WIDOW RIGHT TO

PROPERTY: DISTINCTION WITH REGARD TO RELIGIONS is a bonafide record

of the research work done by R.GOWTHAM, under my supervision and guidance. It

has not been submitted by any other University for the award of any degree, diploma,

associate ship, fellowship or for any other similar recognition.

Place: Tiruchirappalli

Date:

Signature of the Guide

R. GOWTHAM
Reg. No. BA015017
II B.A., LLB. (Hons.)
Tamil Nadu National Law School
Tiruchirappalli
Tamil Nadu 620 009

DECLARATION

I, R.GOWTHAM, do hereby declare that the project entitled WIDOW RIGHT TO

PROPERTY: DISTINCTION WITH REGARD TO RELIGIONS submitted to Tamil

Nadu National Law School in partial fulfilment of requirement for award of degree in

Under Graduate in Law to Tamil Nadu National Law School, Tiruchirappalli, is my

original research work. It and has not been formed basis for award of any degree or

diploma or fellowship or any other title to any other candidate of any university.

Counter Signed Signature of the Candidate

Project Guide
 ACKNOWLEDGEMENT

At the outset, I take this opportunity to thank my Professor Ms.Deepika S., from

the bottom of my heart who have been of immense help during moments of anxiety and

torpidity while the project was taking its crucial shape.

Secondly, I convey my deepest regards to the Vice Chancellor KAMALA

SANKARAN and the administrative staff of TNNLS who held the project in high

esteem by providing reliable information in the form of library infrastructure and

database connections in times of need.

Thirdly, the contribution made by my parents and friends by foregoing their

precious time is unforgettable and highly solicited. Their valuable advice and timely

supervision paved the way for the successful completion of this project.

Finally, I thank the Almighty who gave me the courage and stamina to confront

all hurdles during the making of this project. Words arent sufficient to acknowledge

the tremendous contributions of various people involved in this project, as I know

Words are Poor Comforters. I once again wholeheartedly and earnestly thank all the

people who were involved directly or indirectly during this project making which

helped me to come out with flying colours.

R.GOWTHAM
 SYNOPSIS

S.No CHAPTER NO INDEX

1 1.1 INTRODUCTION

2 HINDU WIDOW PROPERTY RIGHTS

2.1 THE HINDU WOMENS RIGHT TO PROPERTY ACT, 1937

2.2 THE HINDU SUCCESSION ACT, 1956

2.3 PROPERTY RIGHT OF WIDOW MOTHER

2.4 PROPERTY RIGHTS OF WIDOW DAUGHTER

2.5 PROPERTY RIGHT OF WIDOW WIFE

2.6 PROPERTY RIGHTS OF WIDOW DADUGHTER IN LAW

2.7 CAN A REMARRIED WIDOW CLAIM HER DECEASED

HUSBAND PROPERTY
2.8 WIDOW RIGHT AND LIABILITY

3 MUSLIM WIDOW PROPERTY RIGHT

3.1 RIGHTS OF FEMALES

3.2 WIDOWS RIGHT TO SUCCESSION

3.3 PROPERTY RIGHT OF WIDOWGRANDMOTHER

3.4 PROPERTY RIGHT OF WIDOW DAUGHTER

3.5 PROPERTY RIGHT OF WIDOWAS A WIFE:

3.6 PROPERTY RIGHT OF WIDOW MOTHER:

3.7 MARRIAGE UNDER THE SPECIAL MARRIAGE ACT, 1954

3.8 THE MAHER (ENTITLEMENT) & THE WASIYAT (WILL)

 4 CHRISTIAN WIDOW PROPERTY RIGHTS
4.1 INDIAN SUCCESSION ACT, 1925
4.2 DOMICILE
4.3 KINDRED OR CONSANGUINITY
4.4 PROPERTY RIGHTS OF THE WIDOW WIFE
4.5 PROPERTY RIGHT OF WIDOW DAUGHTER
4.6 PROPERTY RIGHT OF WIDOW DAUGHTER IN LAW
5 CONCLUSION
6 BIBLIOGARAPHY

INTRODUCTION

It is common knowledge that the Indian society is predominantly patriarchal and the
preferential rights given to men with respect to property, both movable and immovable. In the
Vedic era, women were treated at par with men, economically. Wives had equal rights over
their husbands properties. In stark contrast to the Vedic scenario is Manus declaration that
property should not be granted to the wife, the slave or the minor son. Widows were no better
off in their matrimonial homes. Even if women were allowed ownership of property, it was
only a life interest, which reverted back to the source on their deaths 1. For example: women
were given the right to their separate stridhan they didnt enjoy complete control over it, they
needed their husbands consent to dispose of a certain part of their stridhan. This paper shall
focus broadly on the various rights and responsibilities, concerning property, of widow, with
regard to the religions.

1
http://timesofindia.indiatimes.com/india/Widows-have-right-on...property.../49776259.cms
 HINDU WIDOW PROPERTY RIGHTS
THE HINDU WOMENS RIGHT TO PROPERTY ACT, 19372

Prior to 1937 there were no codified laws to deal specifically with the Hindu womens right to
property, where disputes arose, they were settled in accordance with the customary practices.
In 1937, the Hindu Womens Right to Property Act was passed after much voicing of
discontent over the unsatisfactory condition of womens rights. In the prevalent socio-legal
atmosphere of that time this Act came as a breath of fresh air for supporters of female
empowerment. However, it was by no means enough to achieve the lofty target of gender
equality. Under the said Act a widow was entitled to a limited interest over the property of
her husband what was to be termed as Hindu widows estate. Under this Act, a Hindu
mans widow, his widowed daughter in law and widowed granddaughter in law are entitled to
inherit to his estate, not only in default of, but along with, his male issues.3 The widow in a
Hindu coparcenary succeeds to her husbands claim irrespective of the existence of male heirs.
The right of survivorship of his collaterals is hence defeated. However, the claim granted to
the widow is a limited one and it is such a limited interest that has come about to be called as
a Hindu womans estate. A Hindu widow in possession of the estate is entitled to its complete
beneficial enjoyment and is answerable to no one as long as shes not guilty of willful waste.
The peculiarity of this estate is that on the death of the widow, the estate does not pass onto her
heirs but to the heirs of the last male owner or the last full female owner with regard to stridhan
property.

THE HINDU SUCCESSION ACT, 1956.

The idea of limited estate as propagated by the Hindu Womens Right to Property Act was
abolished in 1956 by the introduction of the Hindu Succession Act. 4 The Supreme Court
declared that as under section 14 of the Act, the disability of women to hold property absolutely
was removed. In addition to this, it converted the limited estate of a female owner to an absolute
estate irrespective of the fact that the creation of the estate occurred at a point of time before

2
HINDU WOMENS RIGHT TO PROPERTY ACT, 1937
3
www.tarahaat.com/Law_Wrtp_Chris.aspx
4
www.familymattersonline.info/christian-inheritance-laws
the enactment of the said legislation, which was retrospective in nature. No woman can be
denied property rights on the basis of any custom.

PROPERTY RIGHT OF WIDOW MOTHER:

According to the Section 10 of the Hindu Succession Act, property rights of a mother, who is
a widow in her sons property will be given. As she comes under class I heir, she is given first
preference than others who were in the other class of succession. This is applicable only for
the true mother of such son who owns the property.

Fathers widow, who is a step mother for the son who owns the property, receives share under
the entry VI of class II of succession. However, there is no logic as they are not related by
propinquity or blood.

PROPERTY RIGHTS OF WIDOW DAUGHTER:

If the parties are Hindu, then section 6 of the Hindu Succession act will be applicable along
with section 10 of the act.

According to sec.6 of HSA Act, 1956, Devolution of interest in coparcenary property.5

On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint
Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,

(a) By birth become a coparcener in her own right in the same manner as the son;

(b) Have the same rights in the coparcenary property as she would have had if she had been a
son;

(c) Be subject to the same liabilities in respect of the said coparcenary property as that of a
son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a
reference to a daughter of a coparcener.

As the daughter of the coparcenary has a birth rights, her share in her fathers property will be
received by her, even though if she is a widow or not. Thus she receives as equal to the son.

5
HINDU SUCCESSION (AMENDMENT) ACT, 2005
PROPERTY RIGHT OF WIDOW WIFE:

Under Hindu Succession Act, 19566, the properties of a Hindu male dying intestate devolves,
in the first instance, equally on his sons, daughters, widow and mother and include the specified
heirs of predeceased sons or daughters. The widow of the deceased is entitled to inherit equally
with sons and daughters. The provisions of section 30 of the Act raise issues which are
questionable in nature whereby the deceased husband, if he so desires, may write a Will and
exclude his wife. The Will may contain bequeath of all his properties and no means of support
to the widow.

Sec 10. Distribution of property among heirs in class 1 of the Schedule. - The property of an
intestate shall be divided among the heirs in class I of the Schedule in accordance with the
following rules:- Rule1.- The intestates widow, or if there are more widow than one, all the
widows together, shall take one share. Rule 2- The surviving sons and daughter and the mother
of the intestate shall each take one share. Rule 3- The heirs in the branch of each pre-deceased
son or each pre- deceased daughter of the intestate shall take between them one share. Rule
4- The distribution of the share referred to in Rule 3- (i) among the heirs in the branch of the
pre-deceased son shall be son made that his widow (or widows together) and the surviving sons
and daughters get equal portions, and the branch of his pre-deceased sons gets the same
portion. (ii) Among the heirs in the branch of the pre-deceased daughter shall be so made that
the surviving sons and daughters get equal portions.

Section 10 in The Hindu Succession Act, 1956 talks about the distribution of property in
situation husband dies intestate and says that distribution of property shall take place among
the heirs in class I of the Schedule wherein the Rule 1 specifically states that the intestates
widow, or if there are more widows than one, all the widows together shall take one share.

ILLUSTRATION 1

If husband dies intestate and is survived by two widows and a son, heirs in Class I shall take
the property simultaneously and to the exclusion of all others. Here according to the provisions
of Rule 1 of section 10, both the widows of the husband shall take one-half share in the property

6
HINDU SUCCESSION ACT, 1956
of the husband and the other half shall go to his son.

ILLUSTRATION 2

In situation a husband dies intestate leaving two widows and no sons, both of them shall inherit
the property equally, i.e. both of them shall be entitled to one-half share, there being no other
Class I heir.

PROPERTY RIGHTS OF WIDOW DADUGHTER IN LAW:

The right to claim partition which a male owner may exercise is conferred upon a Hindu widow
by Section 3(3).

The Act gave the widow equal share as that of her son in the intestates separate property and
in default of a son she inherited the entire property. With respect to joint family property she
was given the same interest as he himself had. If there were more widows than one, all of
them together took one share.

For a widow who asked for a property right in her father in law, the below said conditions
should be fulfilled:

Sons widow should not have been remarried at the time of the partition. ( before 2008)
Wife of a valid marriage alone is considered for the succession purposes
Her status/ conduct will not be taken into account or considered
The property right is not applicable for sons widow/ sons sons widow, who is
remarried/divorced when the succession takes place. (before 2008)

DALJITH KAUR Vs MARJITH KAUR, 20097

H is married to W1. W1 had a paramour. W1 always writes paramours name for all the official
record. 3 children for P and W1 and three had Ps name as initial. Her surgery was approved
only by P. Later H married W2 without legally divorcing W1. H dies. W1 &W2 claim to be
the legal wife for the share.

HELD: Only W1 gets the share as she is only the legal valid marriage. Though W1 had illicit

7
R.S.A. No.1205 of 1981 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
relationship as character/ status is not considered to decide the shares, which made her the
owner of the share.

SECRETARY OF STATE FOR INDIA V BANK OF INDIA LTD. (1938) 8

A widow or the widowed daughter-in-law can succeed to the property of a Hindu under the
Act freed from the restriction imposed by the Dayabhaga School that she should be .chaste at
the time the succession opens. On remarriage she forfeits the interest that she has taken, her
share then going to the persons who would be the heirs of the person as whose heir she had
originally taken the property. The same rule applies if she dies.

RAMAIYA KONAR VS. MOTTAIAH MUDALIAR. (1987)9

Madras High Court held that a Hindu married woman who is unchaste at the time of her
husband's death is disqualified from inheriting his interest in the joint family property under
Section 3 of this Act.

CAN A REMARRIED WIDOW CLAIM HER DECEASED HUSBAND PROPERTY?

A widow who remarries has rights in her former husbands properties. According to sec.2 of
the Hindu Widows Remarriage Act, 1856, which reads as under:

Rights of widow in deceased husband's property to cease on her remarriage10

On the strength of this provision, limited right and interest which a widow had in her deceased
husbands property would cease to exist if she remarries without express permission, and the
next heirs of her deceased husband, or other persons entitled to the property, shall thereupon
succeed to the same.

But According to Sec.8 of the Hindu Succession Act, 1956 which provides the general rules
of succession in case of males, says that his wife came under the class I heir under succession

8
In the Privy Council, Privy Council Appeal No.55 of 1937 (From Bombay)
9
AIR 1951 Mad 954, (1951) IIMLJ 314
10
Hindu Widows Remarriage Act, 1856
rights, and it is an absolute right, which means that right exists forever.

In 2008, the Supreme Court of India decided that widow who remarries cannot be deprived of
a share in her dead husbands property as according to it the widow becomes an absolute owner
of the deceased husbands riches to the extent of her share as the provisions of the Hindu
Succession Act 1956 would prevail over the earlier Hindu Widows Remarriage Act 1856.

The Supreme Court of India did not concur with the provisions of the Hindu Widows
Remarriage Act 1856 which says that all rights and interests which any widow may have in her
deceased husbands 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 deceaseds 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 Shastra 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 Widows Remarriage Act.

WIDOW RIGHT AND LIABILITY:

RIGHT TO CLAIM PARTITION

The interest which the widow takes is an alienable right and the alienee can ask for partition
and possession of her share. Again a suit for partition affects a severance in interest of a
coparcener and if anything the widow's position must be a fortiori. The proper view to take
seems to be that if there is a suit for partition either at the instance of the widow or at the
instance of her husband's coparceners she must be considered to possess her interest as a
separate coparcener and on her death whether pending the suit or after a decree for partition
the interest of her husband which she had taken under the Act must be held to go to her
husband's heirs and not to the other coparceners of the quondam undivided family.
CASE LAW: RAMASWAMI CHERRY VS. LAKSHMAMMA

RIGHT BY STATUTORY SUBSTITUTION:

On the death of a Hindu as a member of a Mitakshara coparcenary, his widow takes his interest
in the family property subject to the coparcenary incidents of the right of survivorship, right to
claim partition and right to maintenance. She takes the same interest as her husband" and not
"the same right as her husband" The interest of the widow vis-a-vis her husband's undivided
interest arises not by inheritance nor by survivorship but by statutory substitution

A Hindu widow need not be in actual physical possession of property belonging to her husband
in order to become absolute owner of that property under the Hindu Succession Act, 1956.

CASE LAW: SATRUGNAN VS. SABUJITPARI.

RIGHT TO ALIENATE:
The widow had the absolute right to alienate her undivided interest for legal necessity.
Moreover, the alliance was held entitled to partition of the joint family property even though
he had purchased only the widow's life interest in the presumptive share. The difficulty raised
by the Act. According to Professor Derrett, is that it gives the "same interest" subject to the
statements that the interest shall be the limited interest, known as the "Hindu women's estate".

According to the learned jurist the plain words of the Act give a women's estate, which involves
not only that a widow may alienate absolutely for legal necessity, but she may alienate her
interest without justification provided that it be for her life.

RIGHT TO CHALLENGE ALIENATION:

Section 3 (2) the widow gets the same interest as her husband had, that interest includes the
right to challenge an improper alienation by the managing member of the family without any
necessity or benefit, because she having the right to partition and to get a share of the property
undiminished except for proper reasons her right can be best protected only by her being
conceded the right of preservation of the property with the concomitant right of challenging a
non-binding alienation.

CASE LAW: POTHARAJU PAPPAYAMMA VS. GOPALAKRISHNAMURTHY

WIDOW'S LIABILITY FOR HER HUSBAND'S DEBTS
The question of the widow liability for the husband's debts in case he has died as a member of
a coparcenary is beset with doubts and difficulties but appears to depend for its determination
on the circumstance whether he died leaving sons or not and whether the debts is a simple debt
or a mortgage debt. If the debt is a valid mortgage debt then his share is taken by his widow
burdened with the debts and is therefore liable for its satisfaction.

In view of the decisions in Satrughan's case, the assumption that the widow takes under the
Act as the husband's heir and is therefore liable for his debts is not warranted. But if the husband
has left also sons, son's sons or son's son's sons, then her share must be held liable for the simple
debts in the same way as her sons' shares would be. The contrary construction would place the
widow in a more advantageous position, than that of the sons, for the sons would be liable for
the debts under the pious obligation but the widow would not be liable, a result which it is
difficult to hold is the intention of the Legislature.

MUSLIM WIDOW PROPERTY RIGHT

Muslim law of succession constitutes four sources of Islamic law

The Holy Koran

The Sunna - that is, the practice of the Prophet
The Ijma - that is, the consensus of the learned men of the community on what should
be the decision on a particular point
The Qiya - that is, an analogical deduction of what is right and just in accordance with
the good principles laid down by God.

Muslim law recognizes two types of heirs, Sharers and Residuaries. Sharers are the ones who
are entitled to certain share in the deceaseds property and Residuaries would take up the share
in the property that is left over after the sharers have taken their part.

Sharers:

The Sharers are 12 in number and are as follows:

(1) Husband (2) Wife

(3) Daughter (4) Daughter of a son (or son's son or son's son and so on)

(5) Father, (6) Paternal Grandfather

(7) Mother (8) Grandmother on the male line

(9) Full sister (10) Consanguine sister

(11) Uterine sister, and (12) Uterine brother.

The share taken by each sharer will vary in certain conditions. For instance, a wife takes
1/4th of share in a case where the couple are without lineal descendants, and a one-eighth share
otherwise. A husband (in the case of succession to the wife's estate) takes a half share in a case
where the couple are without lineal descendants, and a one-fourth share otherwise. A sole
daughter takes a half share. Where the deceased has left behind more than one daughter, all
daughters jointly take two-thirds.

If the deceased had left behind son(s) and daughter(s), then, the daughters cease to be sharers
and become residuaries instead, with the residue being so distributed as to ensure that each son
gets double of what each daughter gets.

Non Testamentary and Testamentary succession under Muslim law:

In Non testamentary succession, the Muslim Personal Law (Shariat) Application Act, 1937
gets applied. On the other hand, in case of a person who dies testate i.e. one who has created
his will before death, the inheritance is governed under the relevant Muslim Shariat Law as
applicable to the Shias and the Sunnis.

In cases where the subject matter of property is an immovable property, situated in the state of
West Bengal, Chennai and Bombay, the Muslims shall be bound by the Indian Succession Act,
1925. This exception is only for the purposes of testamentary succession.

Birth right:
Inheritance of property in Muslim law comes only after the death of a person, any child born
into a Muslim family does not get his right to property on his birth. If an heir lives even after
the death of the ancestor, he becomes a legal heir and is therefore entitled to a share in property.
However, if the apparent heir does not survive his ancestor, then no such right of inheritance
or share in the property shall exist.

Distribution of the Property:

Under the Muslim law, distribution of property can be made in two ways per capita or per
strip distribution.

Per capita distribution method is majorly used in the Sunni law. According to this method, the
estate left over by the ancestors gets equally distributed among the heirs. Therefore, the share
of each person depends on the number of heirs.

Per strip distribution method is recognised in the Shia law. According to this method of
property inheritance, the property gets distributed among the heirs according to the strip they
belong to. Hence the quantum of their inheritance also depends upon the branch and the number
of persons that belong to the branch.

RIGHTS OF FEMALES:

Muslim does not create any distinction between the rights of men and women. On the death of
their ancestor, nothing can prevent both girl and boy child to become the legal heirs of
inheritable property. However, it is generally found that the quantum of share of female heir is
half of that of the male heirs. Reason behind this is that under the Muslim law a female shall
upon marriage receive mehr and maintenance from her husband whereas males will have only
the property of the ancestors for inheritance. Also, males have the duty of maintaining their
wife and children.

WIDOWS RIGHT TO SUCCESSION:

Under Muslim law, no widow is excluded from succession. A childless Muslim widow is
entitled to one-fourth of the property of the deceased husband, after meeting his funeral and
legal expenses and debts11. 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

11
www.belgaumchamber.com/about-us/10-womens-right.html
subsequently dies of 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.

PROPERTY RIGHT OF WIDOWGRANDMOTHER:

The maternal grandmother will get one sixth of the share of the total property only if there is
no mother or grandfather. The maternal grandmother gets a share only if there is no father or
grandfather.

PROPERTY RIGHT OF WIDOW DAUGHTER:

Under the Muslim law ideology, a woman is half the worth of a man, a son takes double the
share of a daughter. But the daughter is the absolute owner of whatever property she inherits.
If there is no brother, she gets half a share. It is legally hers to manage, control, and to dispose
of according to her wishes12.

She is eligible to receive gifts from even from those she would inherit from. This is
contradictory because she can inherit only one-third of the mans share but can get gifts without
any hassle.

Till a daughter is not married, she enjoys the right to stay in her parents house and seek
maintenance. In case of a divorce, charge for maintenance reverts to her parental family after
the iddat period (approximately three months) is over. But, if her children are in a position to
support her, the responsibility falls on them.

PROPERTY RIGHT OF WIDOWAS A WIFE:

It is the responsibility of the husband to make reasonable and fair provision to maintain his
former wife even after separation under Section 3 (1Ha) of the Muslim Women (Protection of
Rights on Divorce) Act, 1986.

12
www.familymattersonline.info/christian-inheritance-laws
In the event of the death of her husband, a widow gets the one-eighth share, when there are
children but will get one-fourth share, if there are no children. If there is more than one wife,
the share may diminish to one-sixteenth.

PROPERTY RIGHT OF WIDOW MOTHER:

A Muslim mother is entitled to inheritance from her children, if they are independent. She is
eligible to inherit one-sixth of her dead child's property if her son is a father as well. In the
absence of grandchildren, she would get the one-third share.

MARRIAGE UNDER THE SPECIAL MARRIAGE ACT, 1954:

Where a Muslim contracts his marriage under the Special Marriage Act, 1954, he ceases to be
a Muslim for purposes of inheritance. Accordingly, after the death of such a Muslim his (or
her) properties do not devolve under Muslim law of inheritance. The inheritance of the
properties of such Muslims is governed by the provisions of the Indian Succession Act, 1925
and Muslim law of inheritance is not applicable.

THE MAHER (ENTITLEMENT) & THE WASIYAT (WILL):

The maher (entitlement)

This is the total money or property that a wife is entitled to get from her husband at the time of
marriage.

There are two types of maher: prompt and deferred. In the former case, the amount is given to
the wife immediately after marriage; in the later, the amount is given to the wife when her
marriage has ended, either upon the death of her husband or by divorce.

The wasiyat (will)

A Muslim cannot give away more than one third of his/her total property through a will. In
circumstances where there are no heirs in the estate as prescribed by law, the wife may inherit
a greater amount by will.
 CHRISTIAN WIDOW PROPERTY
RIGHTS
Every law of succession defines the rules of distribution of property in case a person dies
without making a will. The Christian Law of Succession is governed by the provisions in the
Indian Succession Act, 1925.

INDIAN SUCCESSION ACT, 1925:

The religion of the deceased determines the succession to his estate. For example,
succession among Hindus is governed by the Hindu Succession Act, 195613. As such,
Christians in general are governed by the Indian Succession Act of 1925 for succession
purposes.

In 1865, the original Indian Succession Act was passed and a new question arose as to whether,
even under the provisions of this new Act, the convert could elect to be governed by the old
law. In the case of Kamawati v. Digbijoy thereafter it was held by the Privy Council that the
old law ceases to be applicable with regard to inheritance i.e. succession. Thereafter in a recent
2001 judgement, the Allahabad High Court reiterated that Hindu converts to Christianity will
be bound solely by the succession laws governing Christians, inclusive of the Indian
Succession Act, 1925, and it will not be possible for them to elect to be governed by the old
law in this or related matters.

DOMICILE

The Domicile of the deceased plays an integral role in determining the method of devolution
of his property. Halsbury defined domicile' thus: A person's domicile is that country in which
he either has or is deemed by law to have his permanent home. S.5 of the Act categorically
states that succession to the movable property of the deceased will be governed by the lex loci
as per where he had his domicile at the time of his death; whereas succession to his immovable
property will be governed by the law of India (lex loci rei sital), no matter where he was
domiciled at the time of his death. Also, S. 6 further qualifies this provision by stating that a
person can have only one domicile for the purpose of succession to his movable property. It

13
INDIAN SUCCESSION ACT, 1925
must be noted that domicile and nationality differ from each other - domicile deals with
immediate residence, whereas nationality implies the original allegiance borne by the person.
S. 15 lays down that upon and during subsistence of marriage, the wife acquires the domicile
of her husband automatically.

KINDRED OR CONSANGUINITY

S. 24 of the Act makes an initial reference to the concept of kindred and consanguinity, defining
it as the connection or relation of persons descended from the same stock or common
ancestor. S. 25 qualifies lineal consanguinity' with regard to descent in a direct line. Under
this head fall those relations who are descendants from one another or both from the same
common ancestor. Now, succession can be either per capita' (one share to each heir, when they
are all of the same degree of relationship) or per stirpes' (division according to branches when
degrees of relationship are discrete). For Christians, if one were to claim through a relative who
was of the same degree as the nearest kindred to the deceased, one would be deemed to stand
in the shoes of such relative and claim per stirpes.'14

S. 26 qualifies collateral consanguinity' as occurring when persons are descended from the
same stock or common ancestor, but not in a direct line (for example, two brothers). It is
interesting to note that the law for Christians does not make any distinction between relations
through the father or the mother. If the relations from the paternal and maternal sides are
equally related to the intestate, they are all entitled to succeed and will take equal share among
themselves. Also, no distinction is made between full-blood/half-blood/uterine relations; and a
posthumous child is treated as a child who was present when the intestate died, so long as the
child has been born alive and was in the womb when the intestate died.

Christian law does not recognise children born out of wedlock; it only deals with legitimate
marriages. Furthermore it does not recognise polygamous marriages either. However, a
decision has been made to the effect that it does recognise adoption and an adopted child is
deemed to have all the rights of a child natural-born, although the law does not expressly say
so.

The law of intestate succession under S. 32 states that: The property of an intestate devolves
upon the wife or husband or upon those who are of the kindred of the deceased, in the order

14
THE INDIAN SUCCESSION ACT, 1925
and according to the rules hereinafter contained in this Chapter. However, as aforementioned,
the Act recognises three types of heirs for Christians: the spouse, the lineal descendants, and
the kindred. These shall be dealt with now.

PROPERTY RIGHTS OF THE WIDOW WIFE:

S. 33, S. 33-A, S. 34 of the Indian Succession Act govern succession to the widow. Together
they lay down that if the deceased has left behind both a widow and lineal descendants, she
will get one-third share in his estate while the remaining two-thirds will go to the latter. If no
lineal descendants have been left but other kindred are alive, one-half of the estate passes to
the widow and the rest to the kindred. And if no kindred are left either, the whole of the estate
shall belong to his widow.

PROPERTY RIGHT OF WIDOW DAUGHTER:

In Christian law the male and female descendants will be treated equally, unlike Muslim law
which provides 2:1 share for son and daughter. Thus the widow daughter gets equal share as
her brother receives from her fathers property. Even if a Christian womans father spends
money on gifts at her marriage, she is still entitled to a share in her fathers property

PROPERTY RIGHT OF WIDOW DAUGHTER IN LAW:

When the succession takes place, the daughter in law, whose husband is deceased also has the
same right as her husband has and receives the same property as he would receive.

ILLUSTRATION:

If there is a property in deceased father's name. Mother is also dead. There are three son who were married
and one was dead. No will was made either by my father or mother. Property was self-acquired
by my father. Daughter in law is claiming a part in the property now. What does Christian/India
law say about a Christian issueless widow getting a share?

HELD: The widow of one brother who have no issues also have equal rights other two brother.
The property may be divided in three equal shares. One share for one brother, the second share
for another brother and third share for the widow of one brother.
CONCLUSION:

From a predominantly male centric set of property rights, the law has evolved over time to give
first limited then absolute rights to women where property is concerned. It was the previously
held view that giving women the right to property would lead them to have too much freedom
and a sense of their own importance that would lead to the eventual breakdown of the societal
structure and lead to utter chaos. Such views are now known to be erroneous. The various rights
and liabilities of women holding property are as of now at par after the amendment of the Hindu
Succession Act 1956, in 2005. However, the reality is far from the black letter of the law since
even now only one in ten women are aware of the rights they are capable of exercising. It is
the duty of the legally aware people in society to ensure that this deficiency is remedied.
Nevertheless, these laws are a significant step forward in achieving gender equality as
envisaged by the framers of our constitution, the founding fathers of our nation.
BIBLIOGRAPHY:

WEB SOURCES:

www.belgaumchamber.com/about-us/10-womens-right.html
https://www.lawctopus.com/academike/right-property-hindu-women.html
http://timesofindia.indiatimes.com/india/Widows-have-right-
on...property.../49776259.cms
www.tarahaat.com/Law_Wrtp_Chris.aspx
www.familymattersonline.info/christian-inheritance-laws

ACTS:

THE INDIAN SUCCESSION ACT, 1925

HINDU WIDOW REMARRIAGE ACT, 1856
INDIAN SUCCESSION ACT, 1925
HINDU LAW OF INHERITANCE ACT, 1929
HINDU WOMENS RIGHT TO PROPERTY ACT, 1937
HINDU SUCCESSION ACT, 1956
HINDU SUCCESSION (AMENDMENT) ACT, 2005

BOOKS

.Kedar, S.A., Hindu Succession Act, 1956, Eastern Law House, Kolkata, 2004.
Hindu Womens Right to Property (with special reference to The Hindu Succession
Act, 1956), Roy, Sujoy, PRP Journal of Human Rights, 2004, Oct. Dec