Oxford University Press The American Journal of Comparative Law

Widow's Right of Succession in India
Author(s): J. N. Saxena
Source: The American Journal of Comparative Law, Vol. 11, No. 4 (Autumn, 1962), pp. 574-
585
Published by: Oxford University Press
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WIDOW'S RIGHT OF SUCCESSION IN INDIA
"The institution of the family, one of the pivots of the social system
been subjected to drastic alteration by several Acts of Parliament
contain provisions of a revolutionary character."2 Most of these Acts af
the Hindus, the majority community in India, and have rendered their
law, as it stood at the beginning of Independence in 1947, almost unrec
able. But it would be wrong to suppose that the Parliament of Ind
not afforded an opportunity to other communities also to adopt
rational system of family law-rational in the sense of being in line
other developing legal systems of the world today.
It was inevitable that these changes should have taken place.
today is not solely an agricultural country. It is slowly, but surely deve
ing its industrial potentialities. Education is spreading not only amo
but even more among women. The importance of the 'joint family
unit of society is fast fading, and the personality of the 'individual' is
ground. A man of average intelligence in India today cannot be
believe that he will have no salvation without a son8 or that a son
agnate is more important to him to avenge4 than his wife.
India is a vast country, and its population is composed of people belon
to different religious, cultural, and social groups. It is, therefore
natural though not very happy, to find great diversity in their pe
laws. The law of succession is no exception. Broadly speaking,5 ther
present three sets of laws that govern succession in India:
1 (a) The Special Marriage Act, 1954.

(b) The Hindu Marriage Act, 1955.
(c) The Hindu Succession Act, 1956.
(d) The Hindu Minority and Guardianship Act, 1956.
(e) The Hindu Adoptions and Maintenance Act, 1956.
2 Edward Jenks, "Recent Changes in Family Law, " (1928) 44 L.Q.R. 314.
s This was the belief among Hindus based upon the doctrine of spiritual benefit
in itself was founded upon the 'sradha ceremony,' in the course of which the per
presented different kinds of offerings, e.g., pinda and libations of water to his d
ancestors.
4 "Pre-Islamic Arabia, like the bedouin of Arabia today, was organized on

and patriarchal basis. Outside the tribe there was no security other than the un
law of the blood feud, under which a man must be avenged, if killed by one of an
tribe, by his agnatic relatives, while it was the agnatic relatives of the killer who
if they wanted to avoid further bloodshed, provide the bloodwite by way of co
tion to the 'heirs of blood.' It was only natural, therefore, that it should be th
agnates who would also normally succeed to a man's property on death, and that w
cognates and indeed minors should have no such right." J. N. D. Anderson, Isla
in the Modern World (1959) pp. 60-61.
5 For there are some persons who are still governed by the customary law
matter of succession.
574
1962] COMMENTS 575
1. The uncodified Mohamme

2. The Indian Succession Act
3. The Hindu Succession Act
The population of India at pr

Hindus, Mohammedans, Chris
succession, these are governed
The scope of this paper is to
these communities, so far as h
agricultural land) is concerned
available under the general Ind
share by the particular law g
venience and to avoid confusion,
and intestate succession affect
For the purposes of this pape
had only one wife.
I. HISTORICAL DEVELOPM
Before discussing the law of

communities in India, it is wort
of law as enforced and developed
As far back as 1772, Warren
Diwani Adalats (Civil Courts
according to "the laws of the
and the laws of the Shaster w
other words meant the Muslim
Hindus respectively.6 This state
regime in India, for the British
given by the Second Law Comm
the Hindu and Mohammedan l
tion in India, consisting of
governed by their own personal
The position regarding other
Armenians, Parsis, Anglo-India
presidency towns,8 they were
limits there was no certainty.
European was entitled to the l
confusion prevailed, but, as thei
decided without much difficu
etc., there does not appear to ha
applicable to them.
6 M. P. Jain, Outlines of Indian L

7 This was appointed in England in
mendations for the reform of court
Hindu Law and the Mohammedan
Hindu and Mohammedan religions.
the Mohammedan or Hindu religio
Law."
8 Calcutta, Bombay, and Madras.
576 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 11
Considering the situation, the Third Law Commission9 came to the con-
clusion that there was a great want of substantive civil law for various
classes of persons not professing the Hindu or the Mohammedan religion,
and that a law to regulate devolution of property on death was most urgently
required by those classes. Consequently, the Commissioners in their very
first Report produced a draft of the Indian Succession Act which was
passed as the Indian Succession Act (Act X), 1865. The Act was to serve
as the general law governing all who were not expressly exempted from it.
Europeans, Jews, Armenians, and Indian Christians were subject to this
general law. Hindus, Mohammedans, and Buddhists were excluded from
the Act. Parsis came to have separate law as to intestate succession in the
very same year known as the Parsi Intestate Succession Act (Act XXI),
1865. The Indian Succession Act, however, applies to them in cases of
testamentary succession.
In 1925 the Act of 1865 was revised and a consolidating measure called the
Indian Succession Act (Act XXXIX) of 1925 was passed.10 The Parsi
Intestate Succession Act was bodily incorporated in it in Chapter III verbatim
and without any change, and by Schedule IX of that Act the Act (Act XXI)
of 1865 was repealed. The Parsi law of intestate succession was, however,
amended by the Indian Succession (Amendment) Act (Act XVII) of 1939.
The main change, relevant to the scope of this paper, was the improvement
in the position of the widow (relatively to the son) in respect of succession to
the property of a male Parsi intestate.1
II. TESTAMENTARY SUCCESSION
A. Mohammedan Law. The Muslims in India form two broad categories,

the Sunnis ( Hanafis) and the Shias. In pre-Islamic days, the power of a man
to dispose of his property was unlimited.12 But the Koranic injunction13
allotting definite shares of the inheritance, and a tradition of the Prophet14
curtailed his power in this respect.
Today, the testamentary power of a Mohammedan in India is limited in
two ways: (i) A Mohammedan cannot, by will, dispose of more than a
third of the surplus of his estate after payment of funeral expenses and debts.
Bequests in excess of the legal third cannot take effect unless the heirs
9This was established in December, 1861, for the purpose of preparing a body of
substantive civil law for India.
0 M. P. Jain, Outlines of Indian Legal History (1952) p. 472.
11 The Amending Act of 1939 made the widow's share, previously half the share of the
son, equal to the son's share.
12 A. A. A. Fyzee, Outlines of Muhammadan Law (1949) 301.
1' Koran IV-11, 12, and 177.
14 The tradition of the Prophet, as reported by Bukhari is: 'Sad ibn Abi Waqqas said:
"The Messenger of God used to visit me at Mecca, in the year of the Farewell pilgrimage,
on account of (my) illness which had become very severe. So I said, 'My illness has
become very severe and I have much property and there is none to inherit from me but
a daughter, shall I then bequeath two thirds of my property as a charity?' He said,
'No.' I said, 'Half?' He said, 'No.' Then he said: 'Bequeath one third and one third is
much for if thou leavest thy heirs free from want, it is better than that thou leavest
them in want, begging of (other) people .. ." A. A. A. Fyzee, Outlines of
Muhammadan Law (1949) p. 302.
1962] COMMENTS 577
consent thereto after the de

necessary to validate a bequest
before or after the death of th
unless the other heirs consent
According to Shia law, a testa
does not exceed one third of his
Thus, a widow (who is alw
Mohammedan (the majority o
chance of taking any share in
the other heirs agree thereto
may not be available in ma
Shia Mohammedan is better p
one third of her deceased husb
out the consent of the other he
In a very few cases, where Mo
by customary law,15 a widow m
property by will.
B. Indian Succession Act, 19
Europeans, Parsis, Armenian
British India other than Hindus and Mahomedans."'6
The provisions of testamentary succession described under Part VI of the
Indian Succession Act, 1925, do not apply to Mohammedans at all, though
some of them do apply to Hindus.17 However, the testamentary capacity
of a Christian, a Parsi, or a Jew is recognized under Section 59 of the Act,
which runs as follows: "Every person of sound mind not being a minor may
dispose of his property by will." But that is not all. Today this provision of
the Succession Act is equally applicable to any person who either marries
under the Special Marriage Act18 or, if already married under some other
law, has his marriage registered under the Act.l9
It is thus apparent that the widow of a Christian, a Parsi, a Jew, or of a man
married under the Special Marriage Act, 1954, or of one whose marriage has
been registered under the Act, has a chance of succeeding even to the whole
property of her deceased husband by a will.
C. Hindu Law. "It need hardly be mentioned that wills were unknown
among Hindus before the advent of the British into India and there is
nothing, therefore, in the Hindu law bearing on the subject of wills."20 The
testamentary capacity of a Hindu was not recognized in any of the Presidency
15 This position remains as such even after the Muslim Personal Law (Shariat)
Application Act, 1937.
16D. F. Mulla, "Hindu Wills," (1915) 31 L. Q. R. 435.
17 Section 58 (1), of the Indian Succession Act, 1925.
18 Under Section 4 of the Special Marriage Act, 1954, any two persons may marry,
if certain conditions are fulfilled, and succession to the property of such persons shall
be regulated by the provisions of the Indian Succession Act, as per Section 21 of the
Special Marriage Act.
19Section 15 of the Special Marriage Act, 1954, provides for the registration of
marriages celebrated in other forms, and after registration such a marriage will be
treated as one solemnized under that Act.
20 D. F. Mulla, "Hindu Wills," (1915) 31 L.Q.R. 435.
Courts before 1832, for before the British period, joint family property being
the rule, and separate property exceptional, there was hardly any necessity to
encourage its development. In that year, it was allowed in Bengal for the
first time. The courts at Madras and Bombay followed the same course
within a few years.21
As regards the property which a Hindu can dispose of by will, it may be
observed that:
(a) According to all the Schools,22 a Hindu may dispose of the whole
of his separate or self-acquired property by will, subject of course, to the
legal right of his wife or any other person to maintenance.23
(b) According to Dayabhaga law, a father may dispose of all his
property, whether ancestral or self-acquired, by will. Similarly, a copar-
cener24 may dispose of the whole of his interest in the joint family
property by will.
According to Mitakshara law, no coparcener, not even a father, could dis-

pose of his undivided coparcenary interest by will, unless he was a sole
surviving coparcener. But now the Hindu Succession Act, 1956, permits a
member of a Mitakshara Coparcenary to dispose of his undivided interest in
the coparcenary property by will.25
Thus it may be stated that it is now possible for a Hindu widow to suc-
ceed even to the whole property of her husband by will, subject to the legal
right of certain dependents of the deceased husband for maintenance.
Keeping the position of widow, as discussed above, in mind, it is apparent
that a Mohammedan widow in general, and the widow of a Sunni Moham-
medan in particular, is greatly handicapped as compared to a widow of any
community in India, so far as the extent of her share in the testamentary
succession of the property of her husband is concerned. It is worth mention-
ing here that the Sunni (Hanafi) Law of Testamentary Dispositions has been
reformed in many Muslim countries26 to the effect that, under the rule
allowing a testator freedom of bequest within the 'bequeathable third,' he is
free to bequeath it to an heir as well as to a non-heir, regardless of the consent
of the other heirs (a freedom always enjoyed by the Ithna Ashari Shias but
not by Sunnis).
While it is outside the scope of this paper to discuss the merits and demerits
21 A. Gledhill, The Republic of India (1951) p. 216; id., "Notes on Maine's 'Ancient
Law'," 22 L.Q.R. (1906) 73 at p. 77.
22 The two principal schools of Hindu law are: Mitakshara, considered as authority
in whole of India except Bengal; and Dayabhaga, considered as authority in Bengal.
23 See sections 18 to 22 of the Hindu Adoptions and Maintenance Act, 1956.
24 "A Hindu coparcenary is a much narrower body than joint family. It includes only
those who acquire by birth an interest in the joint or coparcenary property. These are
the sons, grandsons and greatgrandsons of the holder of the joint property for the time
being, in other words, the three generations next to the holder in unbroken male
descent." D. F. Mulla, "Hindu Law," (12th edition, 1960) p. 314.
25 Section 30 of the Hindu Succession Act, 1956.
26 J. N. D. Anderson, "Law Reforms in the Middle East," International Affairs (1956)
Vol. 32, No. 1, p. 43; Article 70 of the Code of Personal Status in Iraq, as mentioned
by J. N. D. Anderson in "A Law of Personal Status for Iraq," 9 Int. & Comp. L.Q.
(1960) 542 at p. 558.
1962] COMMENTS 579
of a law permitting a person to transfer his whole property by testamentary

succession, it must be conceded that in many countries of the world, a man
cannot make a will in such a way as to leave his widow, children, or other
dependents to starve.27 But so far as the law in India is concerned, the
Mohammedan law of testamentary succesion, however rational it may be
in itself, certainly puts a widow in a disadvantageous position in comparison
with a Hindu, Christian, Jew, or Parsi widow.
III. INTESTATE SUCCESSION
A. Mohammedan Law. The present Islamic law of inheritance is a

mixture of pre-Islamic law and Koranic law.
Sunni (Hanafi) law. The Hanafi jurists divide the heirs into three classes:
(a) "Sharers" or Koranic heirs. They are entitled to a prescribed share of the
inheritance. The property goes in the first instance to such of them as are
entitled to get a share. The wife is one of the sharers. (b) Residuaries or
Agnatic heirs. They were the principal heirs before Islam, and continue to
remain in Sunni law the principal heirs, who take no prescribed share, but
succeed to the residue after the claims of the sharers are satisfied. In the
practical world, the residue constitutes the bulk of the property. The son,
the father, the brother, the paternal uncle, and the nephew are all in this
important class. (c) Distant Kindred. These are all those relations by blood
who are neither sharers nor residuaries. They are female agnates and cog-
nates, male and female, e.g., daughter's children, son's daughter's children,
brother's daughters, etc. If there are no sharers or residuaries, the inheritance
is divided among the distant kindred. In one case alone, where the only
sharer is the husband or wife and there is no other sharer or residuary, they
inherit with the husband or wife as the case may be.
Shia law. The Shia Law divides the heirs into two groups : (a) heirs by
consanguinity, and (b) heirs by marriage, i.e., husband and wife. The heirs
by consanguinity are again divided into three classes, each class being
further sub-divided into two sections: I(a) Parents and (b) lineal descend-
ants; II (a) Grandparents and (b) Brothers and sisters and their descendants;
III (a) Paternal and (b) Maternal uncles and aunts of the deceased, and
of his parents and grandparents and their descendants. While the heirs in
class I exclude those in class II, and of class II exclude those in class III,
the heirs of the two sections in the same class inherit together. In Shia law
there are only sharers or residuaries but no distant kindred. The husband or
wife is a sharer, and inherits together with the nearest heirs by consanguinity.
Thus a Mohammedan widow, both in Sunni as well as in Shia law of
inheritance, is a sharer. Her share is: one fourth when the husband dies,
leaving no child or child of a son however low in Sunni law, or a lineal
descendant in Shia law; and one eighth when there is a child or child of a
son in Sunni law, or a lineal descendant in Shia law, of the husband.
B. The Indian Succession Act, 1925. As a general rule, Part V of the
Succession Act, which deals with Intestate Succession, does not apply to any
Hindu, Mohammedan, Buddhist, Sikh, or Jaina, but to all other cases of
27 F. H. Lawson, Introduction to the Law of Property (1958) 167.
intestacy in India.28 In other words, Christians, Parsis, and Jews are governed
by this Act. But that is not all. At present, after the Special Marriage Act,
1954, the succession to the property of any person whose marriage is solem-
nized under the Act (which includes not only a marriage celebrated under
that Act but also a marriage performed in some other form, but registered
under that Act) shall be regulated by the provision of this Act. This Act,
however, divides the rules of intestacy into two divisions. While Chapter II
of Part V is applicable to all persons other than Parsis, Chapter III is applic-
able only to Parsis.
Rules applicable to persons other than Parsis. In case of intestate succession
of a man other than a Parsi, when the intestate dies leaving behind him a
widow: (a) if he has also left any lineal descendants, one third of his prop-
erty shall belong to his widow;29 (b) if he has left no lineal descendants, but
has left persons who are kindred to him, one half of his property shall
belong to his widow.30 But this provision is subject to important modifica-
tions. Firstly, where the intestate has left a widow but no lineal descendants
and the net value of his property does not exceed five thousand rupees, the
whole of his property shall belong to the widow. And, secondly, if it exceeds
that amount, the widow shall get five thousand rupees plus one half share in
the residue. These modifications, however, do not apply (a) to the property
of: (i) any Indian Christian,31 (ii) any person professing Hindu, Buddhist,
Sikh, or Jaina religion the succession to whose property is, under the Special
Marriage Act, 1872, regulated by the provisions of the Indian Succession Act,
1925,82 and (b) unless the deceased dies intestate in respect of all his
property.88
Law applicable to Parsis. When a male Parsi dies intestate leaving behind
him a widow: (a) if he has also left children, the share of the widow and
each son shall be double the share of each daughter.34 But if in addition to
any lineal descendant, any child of such intestate has died in the lifetime of
the intestate, and (i) if such deceased child was a son, his widow and
children shall take his share in the same order as indicated above,35 and (ii)
if such deceased child was a daughter, her share will be divided equally
28 Section 29 (1).
29 Section 33 (a).
30 Section 33 (b).
81 "Indian Christian" means a native of India, who is, or in good faith claims to be,
of unmixed Asiatic descent and who professes any form of the Christian religion.
Section 2 (d).
32 As a general rule of interpretation, this provision will be equally applicable to cases
under the Special Marriage Act, 1954, which repeals the Act of 1872. Though a
Mohammedan has not been specifically mentioned in the provision, it is presumed
that he is also excepted from the advantage due to the general rule specified in Sec. 29
(1) of the Indian Succession Act, 1925.
33 Section 33-A, the Indian Succession Act, 1925.
34 Section 51(1) (a).
5 Provided where such deceased son has left a widow or a widow of a lineal
descendant but no lineal descendant, the residue of his share after such distribution has
been made shall be divided as property of which the intestate has died intestate, and in
making the division of such residue the said deceased son of the intestate shall not be
taken into account. (Section 53 a).
1962] COMMENTS 581
among her children.s6 (b) If he has also left children as well as o

parents, the property shall be divided so that the father shall recei
equal to half the share of a son, and the mother shall receive a
to half the share of a daughter.7 (c) If he has no lineal descen
some other heirs, the widow shall take half the property.88 (d
left no lineal descendants, but a widow of any lineal descendant,
of the intestate shall receive one third of the property.39
As the rules affecting a widow alone (under the Indian Succ
1925) have been discussed above, there is no need to summarize
It is sufficient to observe that, while the share of the widow of a C
or of a Jew, or of one married under some other form, whose mar
been registered under that Act, is fixed, the share of a Parsi widow
depending upon the number of lineal descendants. Of course, in the
of lineal descendants, the share of the Parsi widow is also fixed.
C. Hindu Law. Before the Hindu Succession Act, 1956, there
systems of inheritance among the Hindus, viz., the Mitakshar
Dayabhaga. The difference between the two systems arose from the
while the doctrine of religious efficacy40 was the guiding factor f
succession under the Dayabhaga school, there was no such defin
principle under the Mitakshara school. Sometimes consanguin
garded as the guiding principle and at other times, religious ef
Mitakshara recognized two modes of devolution of property, na
vivorship in case of joint family property, and succession in case of
held in absolute severalty by the deceased. The Dayabhaga recog
one mode of devolution, i.e., succession.
Before 1937, the widow of a Hindu governed by the Mitakshar
a right of maintenance in respect of coparcenary property41 in
husband had interest. In respect of separate property left by her h
had only the right of maintenance when the husband had left a son
son, or a great grandson. She could inherit his separate property on
absence of these immediate heirs (the same was the position in
law also).
In 1937, important changes were made in the matter of succession by the
Hindu Women's Rights to Property Act.42 The main features of the Act
affecting a widow were that she became entitled in respect of the separate
property of her husband in respect of which be died intestate, to the same
share as a son; and secondly, where the husband at the time of his death
had an interest in a Hindu joint family property, his widow was given in
the property the same interest as he himself had. The interest devolving
36 Section 53 (a) and (b). The same rule will apply to remoter lineal descendants who
predeceased the intestate.
37 Section 51 (2).
38Section 54 (a).
39 Section 54 (b).
40 This is the same as the doctrine of spiritual benefit, cf. supra n. 3.
41Broadly speaking, it is the same as the joint family property.
42 Act No. XVIII of 1937.
on a Hindu widow under the provisions of this Act, however, was to

limited interest known as a Hindu Woman's Estate.43
The Hindu Succession Act, 1956. The Hindu Succession Act, 1956,
governs the succession to the property of a Hindu. The Act is a cod
enactment and overrides the previous law on the subject. Under the
sions of this Act, when a male Hindu dies intestate, all his property
his interest in a Mitakshara coparcenary property at the time of his
devolves upon four classes of heirs: firstly, upon the relations mentione
Class I of the Schedule;"4 secondly, if there is no heir of Class I, upo
relations mentioned in Class II of the Schedule;45 thirdly, if there is no
of any of the two classes, upon the agnates of the deceased; and last
there be no agnate, then upon the cognates of the deceased.46
But when a male Hindu dies, having at the time of his death an in
in a Mitakshara coparcenary property, his interest in the property
devolve by survivorship upon the surviving members of the coparc
and not in accordance with the Act, provided that, if the deceased h
him surviving a female relative specified in Class I of the Schedule or a
relative specified in that Class who claims through such female relative,
interest of the deceased in the Mitakshara coparcenary property shall de
by testamentary or intestate succession, as the case may be under this A
not by survivorship.47
The net result of these two provisions is that if a male Hindu dies leav
behind him a widow, she inherits his separate property as well as his int
in the joint family property simultaneously with the heirs specified in
of the Schedule, and to the exclusion of all other heirs. The property of
intestate shall be divided among the heirs in Class I in such a way th
intestate's widow shall take one share, the surviving sons and daughters
the mother of the intestate shall each take one share, and the heirs
branch of each predeceased son or each predeceased daughter of the inte
shall take between them one share.48
Assuming that the widow is not the only surviving heir of an inte
it is clear from the inheritance laws discussed above, that the Indian Suc
sion Act, 1925, is most favorable to a widow. One would thus agre
Mr. Derrett, and in respect of Mohammedan as well as Hindu law,
"It is outspokenly admitted that the general law of India [i.e., the I
Succession Act, 1925] is intrinsically better than the Hindu law, although
43 The main features of a Hindu woman's estate are that: (i) on the death
woman, the estate goes not to her heirs but to the heirs of the last male holder, t
cally called reversioners, and (ii) she is entitled to enjoy the property, but has no
to dispose of the corpus of the property except in certain specific cases.
44The relations mentioned in Class I of the Schedule are: Son, Daughter, W
Mother, Son of a predeceased son, Daughter of a predeceased son, Son of a pred
daughter, Daughter of a predeceased daughter, Widow of a predeceased son, So
predeceased son of a predeceased son, Daughter of a predeceased son of a prede
son, and Widow of a predeceased son of a predeceased son.
45 The relations mentioned in Class II of the schedule are: Father, Son's daug
son, Brother, Sister, etc.
1962] COMMENTS 583
latter governed and will continue to govern in these special matters far more
persons than have been governed by the general law."49 While the Indian
Succession Act, 1925, allows a widow a fixed (one third or one half) and
quite substantial share in the property of her husband, in Hindu and Parsi
law, her share fluctuates with the number of lineal descendants and parents
(only mother in Hindu law) left behind by the intestate and only in their
absence is her share quite substantial (full in Hindu law and one half in
Parsi law), but under the Mohammedan law her share, though fixed in both
situations (one eighth and one fourth), is quite inequitable.
Whatever may have been the justification in Muslim law to give the wife
such a small share in the property of her deceased husband in the days gone
by, there is hardly any equity for this today. "That law (Mohammedan law
of Inheritance) was founded by the Prophet upon republican principles, at
a time when the modern democratic conception of equality and division of
property was unknown even in the most advanced societies of Europe."50
While her one eighth share in the presence of a child or child of a son
however low (in Sunni law), or a lineal descendant (in Shia law), is unjust
in itself under present circumstances, for the sake of argument it may be said
that she also gets her dower out of the deceased husband's property to com-
pensate her for this small share. But the rule that permits her only one fourth
of the estate, when there may be a residuary or a distant kindred (only in
Sunni law) of the remotest permissible degree (e.g., paternal uncle's son's
son, or uterine brother's daughter's son), whom the deceased himself might
have never seen or known, and allows that person three fourths of the
property, is certainly very unjust and beyond understanding in this Twen-
tieth Century. It may be pointed out here that a very bold change has been
made recently in Iraq by the Code of Personal Status in the law of inheri-
tance affecting a widow. It provides that in presence of lineal descendants of
the intestate, the wife will take one fourth of the estate, and in their absence
she will take one half of the estate when there are other heirs.51 Thus her
share has been doubled over what it is at present in Mohammedan law in
India.
IV. CONCLUSION
This survey of the law of testamentary and intestate succession, affecting a

widow in India indicates that the lot of a Christian widow, or a Jewish
widow, or a widow who was married under the Special Marriage Act (1872
or 1954), or whose marriage was registered under the Special Marriage Act,
1954, is satisfactory (but for the extreme case in which the husband transfers
all his property by will to others than the wife). The position of a Parsi
widow (under the special provisions of intestate succession in the Indian
Succession Act, 1925, as amended by the Act of 1939), and that of a Hindu
widow (under the Hindu Succession Act, 1956), has been greatly improved
49 J. D. M. Derrett, "The Codification of Personal Law in India: Hindu Law,"
6 Indian Year Book of International Affairs (1957) 189, at 201.
50 Gobind Dayal v Inayatullah, 7 All. (1885) 775, at 782.
51 J. N. D. Anderson, "A Law of Personal Status for Iraq," 9 Int. & Comp. L.Q.
(1960) 542, at 560.
from what it used to be a few years back, but can by no means be said to be
perfect. The laws affecting a Mohammedan widow, however, are certainly
outdated and need an early reform.
In Independent India, the Hindu law has in many respects been brought
up to date. But the Government has been obstinately shy about reforming
the Mohammedan Law. "There has been no movement either for the reform,
the mutual assimilation, or the codification of these last [Muslim] personal
laws."52 It is hard to believe that the Government of India in this matter feels
the same way as did the British, who left the law relating to personal matters,
e.g., marriage, divorce, inheritance, wills, etc., intact, "lest the religious
susceptibilities of the people be offended."53
It may be hesitating over the issue due to some other reasons. But bearing
in mind that people bound by one citizenship should live under broadly
similar laws, and that the Government of India is already committed to an
Indian Civil Code,54 it is high time that the Government should take some
step in the matter. Murmurs of disapproval from orthodox quarters are to be
expected, but a safe guide is surely to be found in modern trends and
practices in Islamic Countries. To begin with, a Muslim Law Commission
for India, as has at times been suggested, may be set up.
But until the Government takes up the matter of reforming the Moham-
medan Law-and it may well take a long time-it is suggested that the
educated Mohammedans with a modern outlook should stir themselves from
their lethargy and stagnation. They should show a keen desire to reassess
old values by the standards of modern thought and conditions, for the maxim
of Islamic Law itself says, "The requirements of law must change with a
change in times."65 To add to this, "There is considerable force in the remark
belonging to times long past that rules of succession to property being in their
nature arbitrary are in all systems of law merely conventional and even deep
rooted traditions must yield to the march of time."56
And for this, whatever may be the criticism against the Government of
India, it has certainly provided an avenue. The solution lies in marrying
under the Special Marriage Act, 1954, or if already married, having one's
marriage registered under the Act. "Even now it is worth while for good
Muslims to marry under the Special Marriage Act, in order to obtain the
advantages of the Succession Act and the power of testation, the position of
the middle class Muslim wife in matters of succession being now intolera-
ble."57 This will strengthen the hands of the Government to override any
52 J. D. M. Derrett, "The Codification of Personal Law in India: Hindu Law," 6 In-

dian Year Book of International Affairs (1957) 189, at 192.
53 M. I. Zagday, '"Modern Trends in Islamic Law in the Near, Middle, and Far East,"
1 Curent Legal Problems (1948) 206, at 208.
54Article 44 of the Indian Constitution: "The State shall endeavor to secure for the
citizens a uniform civil code throughout the territory of India."
55The Mejelle-the civil law of Palestine and Trans-Jordan, translated by C. A.
Hooper, Volume I, Article 39, (London, 1934).
56D. F. Mulla, Principles of Hindu Law, (12th edition, 1959) p. 918.
57 "Cambridge Colloquia on Comparative Law," 8 Int. & Comp. L. Q. (1959) 391,
at 392.
1962] COMMENTS 585
criticism
criticism fromfrom
the orthodox
the orthodox
quarters whenquarters
it takes up the
whencodification
it takesof up the
Muslim
Muslim law law
to suitto
modern
suit conditions.
modernEven conditions.
Hindus who do
Even
not feel
Hindus
satisfied
who do no
with
with thethe
provisions
provisions
of the Hindu
of Succession
the Hindu Act, Succession
1956, can resortAct,
to the1956, ca
opportunity
opportunity provided
provided
by the Parliament
by theofParliament
India. of India.
J.
J.N.N.
SAXENA*
SAXENA*
**Lecturer,
Lecturer,Faculty
Faculty
of Law, University
of Law,ofUniversity
Delhi. of Delhi.
THE ACCUSED'S PRIVILEGE AGAINST SELF-INCRIMINATION

IN THE CIVIL LAW
All continental West-European countries today recogniz

privilege against self-incrimination in one form or another.' D
ous statements in legal periodicals (both foreign and d
effect that an accused is entitled to claim the privilege, th
ganized information available on how it works in continent
article represents an attempt at a more comprehensive u
France, Germany, and the Netherlands have been chosen a
civil-law countries for this purpose.
I. RECOGNITION OF THE PRIVILEGE2
1. France. An accused in a French criminal proceeding is

have the privilege.3 However, the only provision of the Co
Procedure (Code de Procedure Penale) which expressly
privilege is Article 114 although it pertains only to the inv
ducted by the investigating judge (juge d'instruction); it p
time of the first appearance (before the investigating judge), t
judge determines the identity of the accused, tells him expres
with which he is charged and notifies him that he is free n
statement. Mention of this notification is made in the report.
114 relates only to the first appearance before the investi
seems well understood (though not spelled out in the liter
accused's privilege recognized by Article 114 extends to all
of a criminal proceeding. Whether an accused who is in po
1 The term "privilege" has been used in this article to describe the civ
is comparable to the common-law privilege of the accused against se
although the civil-law right is more accurately described as the righ
remain silent. For a discussion of the privilege against self-incriminati
civil-law countries see Pieck, 'Witness Privilege Against Self-Incrimi
Law," 5 Vill. L. Rev. 375 (1960).
2 Neither in France or Germany nor in the Netherlands is the privileg
right. In these countries, it is a right included in their Codes of Crim
3 Vouin, "The Privilege under Foreign Law, France," 51 J. Crim.
(1960); Gorphe, "L'Appreciation des Preuves en Justice," 215 (Fran
Magnol, Cours de Droit Criminel et de Science Penitentiaire II 107
4 Lors de la premiere comparution, le juge d'instruction const
l'inculp, lui fait connaitre express6ment chacun des faits qui lui sont im
qu'il est libre de ne faire aucune declaration. Mention de cet avertisse
proces-verbal."

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Widow's Right of Succession in India

WIDOW'S RIGHT OF SUCCESSION IN INDIA

1 (a) The Special Marriage Act, 1954.

4 "Pre-Islamic Arabia, like the bedouin of Arabia today, was organized on

1. The uncodified Mohamme

The population of India at pr

Before discussing the law of

6 M. P. Jain, Outlines of Indian L

II. TESTAMENTARY SUCCESSION

A. Mohammedan Law. The Muslims in India form two broad categories,

consent thereto after the de

According to Mitakshara law, no coparcener, not even a father, could dis-

of a law permitting a person to transfer his whole property by testamentary

III. INTESTATE SUCCESSION

A. Mohammedan Law. The present Islamic law of inheritance is a

among her children.s6 (b) If he has also left children as well as o

on a Hindu widow under the provisions of this Act, however, was to

This survey of the law of testamentary and intestate succession, affecting a

52 J. D. M. Derrett, "The Codification of Personal Law in India: Hindu Law," 6 In-

THE ACCUSED'S PRIVILEGE AGAINST SELF-INCRIMINATION

All continental West-European countries today recogniz

I. RECOGNITION OF THE PRIVILEGE2

1. France. An accused in a French criminal proceeding is

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