Here’s All You Need To Know About India’s Inheritance Laws For Widows

Posted: July 26, 2018

Widows have long been discriminated against. After being deprived of social and economic standing, inheritance laws for widows have aimed to set things right, through economic emancipation.

To understand the need for a given legislation, one must understand the social context that led to its enactment. Standing on the peripheries, historically, widows have been oppressed, excluded, and isolated by the social mandates of religion, culture, and superstitious beliefs. As a result, their identity becomes the core of their social standing, and several forces have worked together to keep their exclusion alive.

The average Indian woman’s identity is often defined by her marital status. It is no wonder, then, that a widow is often isolated for being bereft of “value” after her husband’s passing. Inheritance laws for widows, though, strive to protect their interests, recognizing the economic disadvantage that widows are liable to face as a result of their identity.

The “curse”of widowhood

Historically, widows have faced various forms of marginalization: in some instances, they were sent back to their parents’ place, without any property rights of their own; in still others, they were isolated and excluded from their families – a phenomenon that continues to this very day as we see among the widows of Vrindavan. In several instances in history, they were forced to jump into the pyres of their deceasd husbands. In some instances, the practice of niyoga forced a woman to marry her deceased husband’s brother, so she could bear children and retain the property within the family lineage.

The rights of a widow have long been determined by a combination of religion, class, caste, and region – especially when it comes to her remarriage, and the frame of reference for the conditions of her widowhood – such as isolation, exclusion, non-participation in social events, etc.

Traditionally, under Hindu Law, inheritance laws for widows stated that the minimum maintenance amount owed to a widow out of the joint family property constituted what may be termed as her ‘rightful’ share. This formed the customary law, that was based on traditional practices.

The Hindu Widow’s Remarriage Act, 1856

The prevailing legislation at the time, however, was a colonial creation, called The Hindu Widow’s Remarriage Act, 1856. According to this legislation, a Hindu widow had to give up any right to property, or maintenance from her dead husband’s property (self-acquired and joint family property), if she married again. As a result, there was a lot of misuse of this law. Plenty of Hindu families denied widows their rights on remarriage, even when customary law allowed her to retain possession of property. The legislation was also used to deny widows their rights when they turned “unchaste,” a rather vague term that had no clear meaning.

This system prevailed until the early 20th Century, where it was called in question for being arbitrary at the behest of reformers such as Diwan Bahadur Harbilas Sharda and DV Deshmukh. In the early part of the 1930s, their activism began in the form of bills in the erstwhile UP Legislative Assembly. They sought the firm declaration of what ought to be a widows’ rightful share in the property of her deceased husband. At this time, The Hindu Women’s Property Right Act of 1937 came into place. Under this, single widows, i.e., widows who did not remarry, had some rights for maintenance and property out of the joint family estate at the time.

However, things expanded and changed with the arrival of the Hindu Succession Act and the Hindu Marriage Act in 1956.

The current inheritance laws for widows

With the passage of the two legislations above, the legal language to articulate and demand the rights of widows and Hindu women in general, opened up. Fundamentally, as the law stands, if there is a will defining how property is to be divided, that document, so long as it is valid in the eyes of law, takes precedence over everything else. It is when one dies without a will, that laws of succession kick in. Succession, in simple terms, refers to the inheritance of property after the death of the one who owns the property. One’s personal religious beliefs identify the legislative or customary laws that govern succession. Accordingly:

  • The Hindu Succession Act, 1956 applies to Hindus, Sikhs, Jains and Buddhists for intestate succession/inheritance.
  • The Indian Succession Act, 1925, particularly Sections 50 to 56, apply to Parsis for intestate succession.
  • The Indian Succession Act, 1925, particularly Sections 31 to 49, apply to Christians and Jews for intestate succession.
  • The law of succession governing Muslims, for intestate succession, is the Muslim Personal Law (Shariat) Application Act, 1937.

Today, widows have a right to inheritance from their deceased husbands’ property, even if they remarry.

The Hindu Succession Act

Under the scope of the Hindu Succession Act, 1956, which acts as the property law for those who are Hindu, Buddhist, Sikh or Jain, the properties of a Hindu male who dies without a will, go to his sons, daughters, widow and mother equally. Also eligible to inherit these properties are the grandchildren of any of the children of the deceased, if such children themselves passed away before him. The widow of the deceased is entitled to inherit equally with their sons and daughters.  The law also says that certain widows, who have already remarried by the date of succession, may not inherit as widows.

The Indian Succession Act

Christians & Parsis

Under the Indian Succession Act, the widow of a Christian male takes a specified share. The amount of that share depends on the identity of the other succeeding relatives of the deceased. If the heirs are children, the widow receives a third of the share, with the remaining going to the others. If the heirs are relatives other than the children, the widow receives a half of the share, and the remainder goes to the other relatives. If there are neither children nor other relatives, the widow receives the entire property.

For the Parsi community, a widow receives equal shares with each child or parent of the deceased husband. If the widow alone is the lone heir, she takes half of the said property, and the residue is to be divided among other relatives of the deceased.

Islamic Law

The Muslim law of succession is a codification of four sources of Islamic law, namely, The Holy Koran, the Sunna (the practice of the Prophet), the Ijma (the consensus of the learned men of the community on what should be the decision on a particular point), and the Qiya (an analogical deduction of what is right and just in accordance with the good principles laid down by God). There is also a codified legislative framework, the Muslim Personal Law (Shariat) Application Act, 1937.  Under Muslim law, no widow is excluded from inheritance.

A childless Muslim widow is entitled to one-fourth of the property of the deceased husband, after meeting his funeral and legal expenses and debts. 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 dies from 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.

Image source: a still from the movie Sholay

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