Rakshit Agarwal
Section 14 of the Hindu Succession Act 1956 is emancipatory in that it gives widows an absolute interest in property. Yet, the real question that lingers is whether the current Hindu succession laws effectively guarantee widows their maintenance. In this piece, the author analyzes testamentary succession vis-à-vis intestate succession to argue that the laws of testamentary succession ought to be reformed to secure widows their maintenance.
Introduction
The Hindu Code Bill consists of a slew of legislations that were brought in 1956 to reform and advance classical Hindu law. It marked a break from a dark past where women were denied the right to inheritance and subsequently, the absolute right to own property.[1] The Hindu Succession Act 1956 (“HSA”) declares females including mothers, daughters, and widows as legitimate heirs in matters of succession. They have also been provided with an absolute right over the property inherited by them u/s 14 of the same legislation.
While there persists several issues in Hindu law such as the status of widows and mothers as coparceners, this article would limit its scope to the question of whether the Hindu law of succession sufficiently guarantees and provides widows with adequate maintenance to live a fruitful life. In furtherance of this end, this article is divided into two sections. The first section will outline the provisions conferring maintenance under Hindu law before examining the provision of maintenance given by the laws of intestate succession vis-à-vis those of testamentary succession. The final section will advocate for reforms in the laws of testamentary succession by arguing that widows ought to be compulsorily provided with a share in their husband’s property due to the larger good that would be brought about by the implementation of the measure.
Succession and Maintenance
The Hindu Adoption and Maintenance Act 1956 (“HAMA”) is the primary legislation governing the law of maintenance for Hindus in India. §18 of the Act casts a positive obligation on a husband to maintain his wife during his lifetime. Further, the provisions of §22 of the HAMA also provide for her maintenance once the husband has died. As highlighted in the Act, this includes making a provision for her “food, clothing, residence, education and medical attendance and treatment.” The Supreme Court has held that the wife’s right to maintenance is a tangible right that flows from the spiritual relationship in existence between the parties. The fundamental purpose of maintenance is to render assistance to an individual to ensure that they do not fall into a state of destitution. The property inherited by a widow from her husband shields her from a life of dependency and destitution.
As in most other personal laws, a Hindu can succeed in property in two different ways. These are intestate succession, which entails the division of property of the intestate who does not leave behind a will; and testamentary succession, which involves the division of the property between the legatees per the will left behind by the testator. This article will now proceed to examine both these modes of succession under Hindu law.
Intestate Succession
The laws of intestate succession are found under §8 to §10 of the HSA. Under this provision, the property first devolves upon the heirs specified in Class I of the Schedule. These heirs include the son, daughter, widow, and mother among others. Under §10, one share of the property is given to the widow at all times. Thus, the widow is guaranteed a right in her husband’s property, ancestral or otherwise, if he dies intestate.
The significant break that the HSA makes from the past is that it confers upon a widow an absolute interest in the inherited property under §14(1), unlike the Hindu Women Rights to Property Act 1937 which created an interest limited to the life of the widow. The ramifications of a limited interest are manifold. The carrier of a limited estate cannot alienate or transfer the property at her free will. The alienation of the same can only be affected when there arises a legal necessity or the same would be for the spiritual benefit of the husband.[2] Furthermore, a transaction done for purposes other than those mentioned is voidable at the option of the reversioners (the husband’s heirs who inherit the property after her death).[3] The widow, however, remains bound by the transaction.[4] The scope of power available to the widow with a limited estate vis-à-vis one with an absolute interest is significantly enlarged in the latter, thus ensuring that she can maintain herself.
The fundamental purpose behind the grant of powers under §14(1) was to remedy the plight of women who were placed on a lower pedestal than men as a result of unjust laws.[5] As will be shown below, in furtherance of this objective, courts have interpreted the provision broadly and liberally. A limited interest in a property as a result of the 1937 Act is expanded into an absolute interest under the provision.[6] It thus benefitted countless women who acquired a limited interest before the HSA was enacted. The Supreme Court has also held that the right under §14 is “unlimited in point of user and duration and uninhibited in point of disposition.”
The courts have interpreted what constitutes property liberally. The Act has defined property to include both movable and immovable property acquired through several means, including but not limited to inheritance, partition, or in lieu of maintenance. A limited number of means to acquire property such as wills and gifts have been left out from §14(1). This implies that the interest created via wills or gifts can be a limited one per §14(2). However, it has been held that §14(2) should be read as an exception to §14(1). Moreover, a strict interpretation of the same ought to be done to ensure that the wide-ranging powers of s 14(1) are not robbed of their efficacy.
In furtherance of the object of the legislation, possession has been given an expansive definition. The case of Mahesh Chand Sharma has held that the possession for the purposes of the section is not limited to its actual possession but also includes a constructive possession of the property. The right-holder thus need not personally occupy or have actual physical possession of the property before a right can be enforced. Thus, a mere failure to claim the inherited property through means such as partition does not extinguish a widow’s absolute right. Furthermore, the right to claim her share in her husband’s share of the ancestral property via partition can be exercised irrespective of whether the other coparceners assent to the same or not, by virtue of s 14(1).[7] It is thus established that very fact that a widow had a right in the property was sufficient for her to dispose it as per her wishes.
The very fact that she can claim her share without any hindrances from others furthers the interests of the legislature in protecting the interests of the widows. This furthers the purpose of the Act by ensuring that she has the opportunity to use, enjoy, alienate, sell, or dispose of the property of her own volition. It is thus concluded the provisions of Hindu succession law dealing with intestate succession ensure that the widow can be maintained.
Testamentary Succession Through Wills
§30(1) of the HSA declares the Indian Succession Act 1925 (“ISA”) as the primary law governing the making of wills. It is prudent to reiterate that a will does not create an absolute interest in the property. Unlike intestate succession, it cannot be guaranteed that a widow will be provided with a share of property in a will. Furthermore, a will is not open to challenge merely because a Class I heir was left out of its ambit.[8] In the absence of any interest via will, the widow is entitled to maintenance from the legatees under §22 of the HAMA. However, as will be demonstrated, a measure such as this should not be the sole source of maintenance for a Hindu widow but a mere additional safeguard that exists over and beyond an absolute right in the property.
While the Supreme Court has liberally interpreted the terms of a will by allowing a limited interest to be created only after examining if the widow’s needs have been looked after, the same has been done only when the express terms of the will provide for her maintenance. In the absence of any mention of maintenance, the courts have not examined any provisions for the same. For instance, in KS Subramania Pillai v ESR Pakkirisami Pillai, the husband created a life interest under the will in favour of his widow and after her death to the reversioners. The widow’s claim of absolute right over the property being in lieu of her maintenance was struck down as it was nowhere mentioned that the property was for the same. The Court did not address the question of whether maintenance was safeguarded. This highlights the shortcomings in wills that do not guarantee a widow her maintenance. Moreover, the presence of a life interest does not carry with it accompanying benefits such as the right of alienation. This effectively restrains a widow from alienating her share of the property to acquire money for sustenance. An absolute right on the other hand ensures that these problems do not arise.
Testamentary succession does not guarantee a widow any absolute right to her husband’s property. This is a matter of great concern and it brings with it several ramifications, the most significant being the fact that there is nothing that can restrain a husband from devolving his property upon persons other than his wife. While most widows are aware that they had a right of inheritance in their husband’s share of the property, the same cannot be said about the entitlement to maintenance under §22. In the absence of awareness, women may fail to exercise their rights. Even if they are familiarized with their right, obtaining maintenance now remains a judicial dispute, which is cumbersome and uncertain due to the involvement of the subjective opinion of the court in granting maintenance, incessant delays, and high costs. The non-availability of social support measures that can help promote employment opportunities for widows makes her property the sole source of maintenance. It is thus imperative to protect this right.
The law ought to keep in mind the lived realities of the individuals it affects. A measure that furthers the interest of women should consider their experiences. Legal scholar Katherine Bartlett has laid down the theory of positionality which entails analysing the law from the perspective of those most likely to be affected by the measure in question. The experiences of that community ought to be taken as the governing standard in deciding as to whether a law is suitable or not. Keeping in mind the socio-economic hardships propagated by a patriarchal society coupled with the negative ramifications of the law of testamentary succession, it is argued that the current position of law is not sufficient to address the concerns of widows and their maintenance.
This article thus argues for an absolute share in the property of the deceased husband for all widows. This not only gives a widow more autonomy but also ensures that she can sell the property at a price chosen by her. She can thus receive a definite amount rather than an inadequate sum of maintenance based on the subjective satisfaction of the courts. This is evinced from the various grounds such as status of parties, wants of claimants, and whether a will has been made in the wife’s favour, that are mentioned under §23 of the Hindu Adoption and Maintenance Act 1956. Thus, there ought to be a definite amount granted to widows that would not involve such subjective determinations as the same acts to the detriment of the widow by considering her needs as the minimum base upon which maintenance has to be given. The modalities of the proposal will be explained in the next section of the article.
Testamentary Succession: A Need to Change the Law
Muslim personal law that allows an individual to bequeath only a third of the property via will.[9] This article argues that a portion of a Hindu testator’s property should compulsorily devolve upon a widow irrespective of whether a will has been made. This share should be equal to the widow’s share if intestate succession were carried out. The rest of the property can be divided in any manner as the testator deems fit. A caveat at the outset is that since this article has undertaken research on the position of Hindu law alone, it does not expand the scope of the recommendations for wills beyond Hindu law.
Considering that property inherited by way of will brings with it a limited interest in the property per §14(2), it is proposed that the property that devolves in favour of a widow should be in lieu of her maintenance. This creates an absolute interest in the property under §14(1), as held in the cases of Jogi Kumar and Raghubir Prasad. A law to this extent ensures that a widow receives: (a) an absolute right to the property; and (b) the power to alienate and enjoy the property that not only acts as a source of maintenance but also prevents destitution. This ensures that the laws of testamentary succession can adequately safeguard the right to maintenance.
It may be argued that the Act imposes a duty on the legatees to support the widow under §22 and thus a provision to this end is unwanted. However, the presence of an absolute interest in a share of the property promotes autonomy by ensuring that a widow is not left at the mercy of others. The right to inheritance has significantly improved the bargaining power of a woman within the household, thus impacting the overall health and development of her children in a positive manner. In the absence of any interest in the property, it would be even more difficult for her to support her children. As observed from realities on the ground, widows often face economic and social hardships that make it cumbersome for them to acquire gainful employment.[10] Widows are also left more vulnerable after the death of their husbands.
Another counter-argument to this proposal is that it would deviate from the absolute power given to an individual to dispose of his property by way of a will. However, this restriction is valid for two reasons. First, it is in furtherance of a legitimate object. The primary purpose behind this proposal is to protect widows from a life of destitution. A guaranteed share of the property looks after her needs and the requirements of their children. As established above, in the absence of such a provision, a woman may be left at the mercy of others. Furthermore, such a provision creates an incentive for her children to look after their mother as an absolute interest gives her the power to will away the property if she is discontent with them.
The second argument in favour of this measure is that it furthers public policy. The case of Gherulal Parakh has highlighted that principles laid down by statutes and precedents are valid constituents of public policy. There have been Bills introduced in the legislature that seeks to look after the welfare of those widows who have been neglected and abandoned by their families. The larger goal of promoting the socio-economic welfare of widows is thus an urgent and pressing concern of the state. The measure in question is in furtherance of the right to life under Art 21 of the Constitution. As held in the case of Francis Coralie Mullin, the right to life includes a right to live with dignity, which is something beyond mere animal existence. This right also encompasses “the right to carry on such functions and activities as constitute the bare minimum expression of the human self.” An absolute right to the property provides widows with a channel of maintenance that furthers a fruitful life. Considering that the measure is in the larger public interest and provides widows with maintenance, it is valid in law.
Conclusion
The Hindu Succession Act 1956 is a vital step in the state’s goal to grant women the right to inherit property. The grant of property is crucial in ensuring that a widow can sustain herself and live a fulfilling life. This article has analysed the Hindu laws of intestate and testamentary succession and examined whether they grant widows maintenance. Having done the same, it demonstrated that the law of testamentary succession needs to be reformed and an absolute share ought to devolve upon the widow at all times to ensure that her rights are protected.
A caveat in this regard is that the conclusion of an absolute share in the property should not be read as applying to all personal laws. This article limited its scope to Hindu law and examined the impact of inheritance on the bargaining power and rights of Hindu widows alone. Any extension of this argument demands the examination of the personal law in question and the corresponding realities on the ground before any conclusions can be made.
The author is an undergraduate student of law at the National Law School of India University, Bengaluru and an Editor at LSPR.
[1] Prakash Jain, ‘Women’s Property Rights Under Traditional Hindu Law and the Hindu Succession Act, 1956: Some Observations’ (2003) 45(3-4) Journal of the Indian Law Institute 509, 515 and 520.
[2] Paras Diwan, ‘Woman’s Estate, Alienee and Reversioners’ (1993) 35(3) Journal of the Indian Law Institute 108, 109.
[3] ibid 109.
[4] ibid 109.
[5] SA Kader, The Hindu Succession Act, 1956 (Eastern Law House 2004) 257.
[6] ibid 264.
[7] Santosh Popat Chavan v Sulochana Rajiv, 2014 SCC OnLine Bom 5044 [12].
[8] John Mayne, Treatise on Hindu law and Usage (12th edn., New Delhi Bharat Law House 1986) 1429.
[9] Kader (n 5) 269-270.
[10] Marty Chen and Jean Dreze, ‘Recent Research on Widows in India: Workshop and Conference Report’ (1995) 30(39) Economic and Political Weekly 2435,2438.
