International Journal of Law and Legal Jurisprudence Studies

Section 24 of the Hindu Succession Act, 1956: Consequences of its deletion from the Statute Book : Kemi Gupta (NALSAR University of Law, Hyderabad II Year (BA. LLB.(Hons)

ABSTRACT

Section 24[1] of the Hindu Succession Act, 1956 seeks to prevent certain sections of widows from inheriting property of the intestate if she has remarried. It reads as follows:

Any heir who is related to an intestate as the widow of a pre-deceased son, the widow of a pre-deceased son of a predeceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date succession opens, she has remarried.”

The reason is that a widow succeeds as the surviving half of her husband, and she ceases to be so by her remarriage.[2]

The hypothesis for this research is that the deletion of Section 24 from the Hindu Succession Act by the amendment of 2005 has taken a step forward in removing the gender bias faced by the women. This research also hypothesizes that there is a strong need for implementation and awareness of these laws in order to serve the true purpose of these amendments.

INTRODUCTION

The widows disqualified under this section are only the widow of a predeceased son of the deceased or, widow of a predeceased son of a pre-deceased son of the deceased or the widow of a brother of the deceased. Furthermore, the words ‘as such widow’ as mentioned in the section suggests that the disqualification is only applicable in the case when the heir is a widow and seeks to claim succession on the ground of her being a widow under any of the three categories mentioned in Section 24 and not where the same heir claims to succeed on the ground of their being any other relation with the intestate. The categories of widow stated above inherit simultaneously with other heirs mention in Class I of the schedule. The rules relating to widow’s right of succession apply mutatis mutandis to the widow of a pre-deceased son. However, earlier she was not entitled to succeed if on the date succession of the intestate opens, she has remarried.

The principle on which this clause was based is that the widow is the surviving half of her husband and therefore, on her marriage ceases to continue to be such[3]. As the law stood before the amendment, remarriage disabled a widow of a sapinda gotraja from succeeding to the property of a male Hindu when on the date the succession opens; she had ceased to be the widow of the sapinda gotraja by the reason of her remarriage.

However, when the bill was finally passed, only three categories of widows were disqualified from inheritance. This section was later found to be in violation of gender equality and was accordingly repealed by the amendment of 2005.

HISTORY

The Dharmasastra

In light of this, it is essential to first note the view our Dharmasastras ascribe to in cases of widows. The Baud prescribes that the widow of the deceased should give up for one year honey, meat, wine and salt and should sleep on the ground; according to Maudgalya (she should so act) for six months.[4] The Skandapurana[5] quotes, “The widow is more inauspicious than all other auspicious things; at the sight of a widow no success can be had in any undertaking; excepting one’s (widowed) mother all mothers are void of auspiciousness; a wise man should avoid even her blessings like the poison of a snake.”[6]

The position of the Hindu widow was miserable and her lot was most unenviable. She was looked upon as inauspicious and so could not take part in any festivities, such as those on marriage. She had to lead to lead a life of perfect celibacy. Things were no different in cases of child widow, she had to act like an ascetic being poorly fed (only once a day) and poorly clad. Her rights to property were negligible and far from people’s thought and consideration. However, later on her position as heir was improved; but even then she could ordinarily enjoy only the income of the property and could transfer it only in the cases of a legal necessity of the family or for the spiritual benefit of her husband.

This was the law in British India till very recently. Recently the position of the widow of a member in the Hindu joint family and of the widow of a person who leaves separate property has been improved by Act XVIII of 1937 as amended by Act XI of 1938.[7]

The word punarbhu is generally applied to a widow who has remarried. Narada says there are seven sorts of wives who have been previously married to another man, among them, punarbhu is of three kinds: (1) a maiden whose hand was taken in marriage but whose marriage was not consummated; (2) a woman who first deserts the husband of her youth, betakes herself to another man and then returns to the house of her husband; (3) a woman is given by the husband’s relatives (when the husband dies) to a sapinda of the deceased husband or a person of the same caste, on failure of brothers-in-law.[8]

In modern times, the Hindu Widow’s Remarriage Act (XV of 1856) had been passed mainly through the efforts of Pandit Ishwar Chandra Vidyasagar. The Act legalized the marriages of widows notwithstanding any custom or interpretation of the Hindu Law to the contrary and also declared the children of such marriages as legitimate.

Another important question is regarding the effect of non-chastity on the right to maintenance. As regards the wife’s right to maintenance and the effect of non-chastity thereon during the husband’s lifetime, Manu says that a wife guilty of adultery should be confined by the husband in the same house and should be made to undergo the same penance as a man guilty of adultery has to undergo; Yaj  also says that a wife guilty of adultery should be deprived of her status as a wife as to wealth and religious observations, should be given bare maintenance and should be confined to a part of the house. Non-chastity on part of Hindu widow disentitles her to maintenance under some circumstances.

Earlier a widow’s right to maintenance was solely based on her chastity. In the case of Bhikubai v. Hariba[9], the court after an elaborate examination of ancient and medieval authorities and decided cases held a widow who had been unchaste, but who has proved to have given up the life of non-chastity is entitled to bare maintenance.

In the case of Lakhminchand v. Anandi[10], the Privy Council made a general observation, “It is true that the right of a Hindu widow to maintenance is conditional upon her leading a life of chastity and that she loses that right if she becomes non-chaste.” Furthermore, in the case of Kisanji v. Lakshmi[11] it was held that subsequent non-chastity disentitled a widow from recovering maintenance even thought it was claimable under an agreement made with the deceased husband’s father and brother.

Then the Hindu Widow Remarriage Act was passed. Section 2 and 3 firstly, gave legitimacy to a second marriage and secondly, talked about inheriting the property of the deceased husband after remarriage.

Under the old Hindu Law, certain female heirs if they had remarried before succession opens were disqualified from inheriting the property of the deceased intestate Hindu. Under the Hindu Widow Remarriage Act, 1856, if a Hindu Widow remarried, she was divested of the property of her husband which had vested in her as his heir.

The Hindu Succession Act, 1856

The Hindu Succession Act 1956 popularly known as Act 30 of 1956 was passed by both the houses of parliament and over the years various states amended the Act, endeavouring to give an equal status to all women in the joint family property. The Act does not follow the old text of disqualifications of heirs and have given rise to new disqualifications which found its way in the act under Section 24 (Disqualification arising from remarriage)[12], Section 25(Disqualification arising because of commission of a murder) and Section 26 (Disqualification arising from murder).

The old grounds for disqualification included physical, moral, mental and religious reasons which have been discarded by the act in force. In the case of Khagendra Nath Ghosh v. Karunadhar[13], the Calcutta High Court was faced with a question of whether an unchaste petitioner could hold the property of her husband. The court held that the act provides that non-chastity was no longer bar to succeed to husband’s property and it therefore laid down that barring Sections 24 to 26, there is no other provision under the Act which provides for disqualifications of heirs to succeed. Any of these sections do not disqualify a female heir merely on the ground of her non-chastity or for leading an immoral life. Thus the non-chastity of a wife is not sufficient to exclude her from claiming inheritance in her deceased husband’s property and neither could she be divested of the property which she had once inherited on the ground that she has become unchaste.

Under the old Hindu law, physical disability and mental disability were grounds of exclusion from inheritance. The Hindu Inheritance (Removal of Disabilities) Act, 1928 removed all disqualifications except lunacy or idiocy. Furthermore, Section 28 of the Hindu Succession Act, 1956 declared that any defect, disease, deformity etc. shall not be grounds of exclusion from inheritance. And further mentions that the only grounds for disqualifications are the ones mentioned in Section 24 to 26. Section 28 reads out as follows:

“No person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity or save as provided in this Act, on any other ground whatsoever.”

CAUSES OF ITS DELETION

It is noteworthy to mark that the disqualification mentioned in Section 24 of the Act is only limited to three categories of widows. Re-marriage is not a disqualification in case of every female relative of the intestate. Out of the specified categories who are subject to disqualification under the section, the first two are Class-I heirs whereas the third one, widow of a pre-deceased brother is an agnate.[14] And the disqualification is only operative when she inherits in the capacity of a widow. It therefore seems that these three categories of widows are only disqualified because they claim to succeed only through their deceased husbands and not in any other capacity or independently. The section does not apply to any other widow who as such widow would be the heir of the deceased but who has remarried before the succession opens for example the father’s widow.[15]

Thus this means that if the deceased father had any other wife other than the mother of the deceased, i.e. a step mother, she will be an heir to the step son’s property even if she has remarried after the death of such father. Her right will not forfeit merely by the virtue of her remarriage.

Mother entitled to inherit property of her son despite her remarriage.

The disqualification of the three categories of widows is not applicable to the mother to inherit the property of her son, despite her remarriage. It is important to distinguish that the mother of the intestate son does not inherit as the widow of his father, but in her own right as mother. In the case of Mantorabai v. Paretanbhai[16], the Madhya Pradesh High Court was of the opinion that it was important to note that the mother of the intestate does not succeed as the widow of the father, but in her own right and that being the position, and mother being a Class I heir, she is entitled to succeed to the property of her son even if she has remarried before the son died.

It should also be noted that a mother is an heir to the son even when her husband i.e. the intestate’s father is alive and excludes him. Furthermore, step-mother is also not disqualified if she had remarried before the succession opened. The omission in her case is deliberate, as under the original bill, this disqualification was proposed to be applicable to her as well but was submitted that she inherits as step-mother and because of that reason her remarriage does not disqualify her from inheritance.

In the case of Smt. Kasturi Devi v. Dy. Director of Consolidation[17], the Supreme Court held that a mother cannot be divested of her interest in the property solely on the ground of her remarriage. The provision that lays down disqualification of a widowed daughter-in-law to succeed is based on a sacred and spiritual relationship of the wife with her husband. However, the mother is in a completely different position.

In the case of Cherotte Sugathan and others v. Cherotte Bharathi and others[18], the Supreme Court upheld that a widow inheriting the property of her deceased husband became an absolute owner of the property and subsequently her remarriage cannot divest her of the property. This decision was given in the view that Section 24 of the Hindu Succession Act overrides the provision of Hindu Widow Remarriage Act, 1856. The disqualification stated in Section 24 is confined to the case of three female heirs. Any heir who is related to the intestate as the widow of the predeceased son, the widow of a predeceased son of a predeceased son, or the widow of the brother shall not be entitled to inherit to the property of the intestate as such widow, if on the date the succession opens, she has remarried.

In the case of Gurdit Singh and Anr vs Darshan Singh and Anr[19], Smt. Puro, widow of Makhan Singh owned a share in the land which she jointly owned with the plaintiff appellants, the father’s brothers of her deceased husband, Makhan Sigh. She sold her share of the land to someone. The appellants filed a pre-emption suit claiming a right on the land on the grounds that firstly, they were the collaterals of the last male holder of the property and secondly in the capacity of co-sharers in the holding from which the respondent had sold her share of the land. The issue in the case was whether in respect of the other half of the share, Smt. Puro could be described to have succeeded through her husband, son, father or the brother. The appellants argued that she had succeeded through her husband in light of clause b of Section 15(2) of the act.  With regard to the second half of the property, the mother of the deceased was entitled to share equally with the deceased’s widow. At the time of the death of the intestate, Makhan Singh, his heirs according to the schedule were his widow and his mother. The fact that his mother had remarried years before the death of Makhan Singh did not break their mother-son relationship and similarly would not affect the succession. There was no question of the mother of the deceased losing the right to succeed to the half share in the land in her son’s property in accordance with the provisions of the Hindu Succession Act notwithstanding her remarriage with another man years before the death of her son, Makhan Singh. The appeal

was accordingly accepted and the suit filed by the plaintiff-appellants was decreed in respect of the half share of the land sold by Smt. Puro the widow of the deceased intestate.

Widow of the deceased himself

This section would not be applicable to her as in her case the question of her remarriage before or after the succession does not arise at all. This is because she immediately, upon the death of the husband, succeeds as his heir and gets a vested right in his property. Once she has a vested right, she cannot be divested of it even if she subsequently remarries. Section 15 of the Hindu Succession Act provides her with absolute ownership of the property inherited by her.In the case of Bhuri Bai v. Champi Bai[20], the deceased, Kachru Brahmin died intestate in the year 1950 leaving behind properties which also included agricultural lands. Champi Bai, widow of the deceased succeeded to his property. The Hindu Succession Act, 1856 came into force later in the month of June. The court said that, “This act, it may be mentioned, improved the condition of the Hindu widow and converted the limited estate into an absolute estate by the virtue of section 15 of the act.[21]Champi Bai later remarried one Nathu Ram. After the remarriage, she made a gift of the property she had inherited from her deceased husband in the favour of her new husband, Nathu Ram. This was challenged by the aunt and sister of the deceased Kachru Brahmin, the owner of the property from whom Champi Bai inherited the property after his death. A suit was instituted against both, Champi Bai and Nathu Ram for a declaration to the effect that they are not the real owners of the property of the deceased and the gift deed affected by Champi Bai is ineffective and therefore, void. They also demanded back the possession of the property. They argued that Champi Bai had lost all her rights to the property after her remarriage with Nathu Ram and the in effect the property would now devolve upon the plaintiffs who are the next heirs of the deceased. It was contended by the defendants that the defendant, Champi Bai was the absolute owner of the property of her deceased husband. Furthermore, it was argued by the defendants that after the passing of the Hindu Succession Act, the widows’ limited estate had been abolished making the widow absolute owner of the property devolved upon her with the right to alienate the property in any manner she wished. In the light of the above, the appeal stood dismissed holding that any of the three widows will not be deprived of her property which she inherits independently and not as the widow of her husband. The fact that she remarries before the succession opens will have no effect whatsoever. Once the property is divested in her as an heir of the deceased, there cannot be any divesting in any subsequent event.

Therefore, in this section or under any other provision of the Act, no widow is divested of the state already vested in her on account of her being the heir of the intestate if she marries subsequent to the date of the opening of the succession.

Law Commission Report

An initiative was taken by the Law Commission of India under the chairmanship of Justice B.P.Jeevan Reddy in its 174th Report on “Property Rights of Women: Proposed Reforms under Hindu Law” to improve the position of Hindu females. Some important recommendations were made in relation to property rights which demanded an equal treatment of women the social and economic system. The recommendations are reflected in the amendment Act of 2005 with the amendment of Section 6 and omission of Sections 4(2), 23 and 24 from the original Hindu Succession Act of 1856 which perpetuated gender bias and inequality. This was done because the Law Commission felt a need for special protection to widow’s right to reside in a dwelling house hence it is recommended that the family dwelling house should not be alienated without the widow’s consent or without providing her an alternative accommodation once she has agreed to the sale of the dwelling house.[22] Keeping this in mind, Section 24 was repealed from the act.

The committee was of the view that this provision of the act discriminates between a Hindu male and a Hindu female. To quote from the proceedings of the meeting: “…the right of a widow who remarries is denied, whereas, the right of a widower who remarries is protected. We are making a distinction between a widower who remarries and his right is not affected. But the widow who remarries is denied the right.” In the modern times where all debates are around the topic of maintaining gender equality and making the laws of the land gender neutral, such a provision was seen to be problematic.

The deleted Section 24 only disqualifies three categories of widows from inheriting the intestate, if on such date when the succession opens, they have remarried. The three widows disqualified under this provision are:

  1. The widow of a pre-deceased son.
  2. The widow of a pre-deceased son of a pre-deceased son, and
  3. The widow of a brother.

The first and the second categories of widows as above are Class I heirs and the widow of a brother is a Class II heir falling in Entry VI of Class II. No other woman is disqualified from inheritance even if she had remarried before the intestate died. Thus, father’s widow i.e. widowed step mother who is an heir under the category IV of the Class I heirs is not disqualified from inheriting the property even if she had remarried before the succession opened. Furthermore, one’s own widow will also not be divested of the property already vested in her, even if she remarries. However, a very timeworn decision was given by the Guwahati High Court in the case of Lal Ram Chhane v. Lathachungi[23]. In this case the court held that the wife of a deceased (i.e. a widow), since loses her chastity by a second marriage after the death of her husband is not entitled to a share in his properties. This decision has been criticized by a lot of scholars for having no base in law. However, Section 24 does not include the widow of the intestate and the omission appears to be due to the fact that it is not possible to conceive of a person leaving a widow who had remarried.[24]

The most important factor to be considered is that the right of a widow who remarries is denied whereas the right of a widower is protected notwithstanding his decision to remarry.[25] The social, economic and political factors have changed and the debates of women empowerment and gender equality are being considered. The old attitude towards women is changing considerably. Although there are women who are increasingly being independent, earning and acquiring properties of their own but still I is important for the law to envisage the category of women as a whole. There are still a majority of women who are completely dependent on their husband. In such cases, such a provision is essentially required.

The section, quite evidently, makes a distinction between a widower who remarries and a widow who remarries. In a time where the law is progressing towards encouraging gender equality, such a distinction holds no place. Furthermore, another distinction is made in this section by differentiating all widows rom the categories of widows[26] specified under the section. In the light of the above mentioned factors, the validity of the section was analysed and examined by the government and was subsequently omitted by the 2005 amendment thereby laying focus on gender equality and making the laws of the land gender neutral.

CONSEQUANCES OF ITS DELETION

After the recommendations of the Law Commission Report and much debate in passing the law, Section 24 was finally omitted from the statute book in the 2005 amendment. The amendment led to a lot of changes which made way for women empowerment. Widows can now inherit without there being any disqualification. The amendment is applauded as a step towards gender equality. In the Indian context, the widow, after the death of the husband is in a difficult position as in majority of the cases, husband is the bread winner of the family. Although the position is changing and the women are progressing and standing on their own feet, there is still a long way to go to achieve complete gender equality. The deletion of this section from the statute gives a relief to many of the widows to increase their livelihood options and take care of themselves after the death of their husbands.

In the case of Cherotte Suganthan v. Cherotte Bharathi[27] as discussed above, it was held that in the occasion of the death of the husband, the widow gets an absolute share of his property which is not subjected to divestment. She becomes the absolute owner of that share of the property.

Studies and survey points out that the maltreatment and physical violence etc. meted out towards women are comparatively less in houses where women own certain property that those without any property.[28] One things ensured by this deletion is that the widows who were earlier disqualified can now enter into another marriage with a sense of certain security and can be independent, something that the women necessarily require in this context. The 2005 amendment can viewed as a tool for removing or at least reducing down the gender inequality prevalent in our society, laws and minds.

Looking at this amendment from a very socio-legal analysis, it can be said that earlier before this amendment came to place, the widow was not treated as a member of the family and often ill-treated so as to get her out of the family. It was often believed that she was not need any more after the death of her husband and quite often was blamed for the reason of his death and being unlucky and inauspicious. This left her with no option but to remarry and be dependent on someone else. This meant losing her right to inherit her deceased husband’s property by intestate succession. Deletion of section 24 qualifies widow to claim property which in effect has improved her status in the Hindu society as she now has a standing of her own, something she can depend on even after her remarriage or after being abandoned by the husband’s family. Such problems have been put an end to. However, another problem that remains a standing problem for almost every law governing and protecting women and her rights is the implementation of such rights.

The need of the hour is the spread awareness about the existence of such rights that the widow holds. Only that in true sense can successfully lead to empowerment of women of their basic rights. There have to be many steps taken to fulfil the promise of the legislation.

In the case of Cherotte Sugathan v. Cherotte Bharathi & Ors, Supreme Court has ruled that a widow, even after her remarriage, is legally entitled to get a share of her first husband’s inherited property. This reiteration of the legal provision came from a Bench comprising Justices S B Sinha and V S Sirpurkar while it dismissed a petition by one C Sugathan’s heirs, who had challenged a Kerala High Court judgment allowing inheritance rights to their paternal uncle’s widow even after her remarriage. The property in question belonged to one Pervakutty, who willed it in favour of his sons – Sugathan, Surendran and Sukumaran. Sukumaran, who died in 1976, was married to Bharathi. Bharathi married one Sudhakaran, who also died in 1979. But, when the question of sharing the property inherited from Pervakutty arose between his heirs, none were ready to give any share to Bharathi on the ground that she had remarried after Sukumaran’s death. The HC held that in the facts of the case, coupled with the provisions of the Hindu Succession Act, Bharathi was entitled to her share in the property. The apex court, rejecting the appeal against the HC judgment, said, “The succession law brought about a sea change in Shastric Hindu Law. Hindu widows were brought on equal footing in matters of inheritance and succession along with the male heirs.”

CONCLUSION

The position of a Hindu female in respect of her proprietary rights has witnessed unprecedented change from the ancient times to the amended Hindu Succession Act. The laws have gone a long way in ensuring and providing rights to women. The journey from exclusion to recognition of Hindu widows in the institution of family has been remarkable, but non-inclusion of certain categories of Hindu widows was irrational and unjustified, for all women are equally entitled to economic and social justice which the Constitution of India proclaims. This distinction has now been removed.

The progress made by the law and society has been applaud able however another main issue is that the Hindu women must be made aware through legal literacy campaigns and social awareness programmes about their property rights, so that they may fight for what is rightfully theirs, by virtue of being born as human beings.[29] Concerted efforts on the part of the government, nongovernmental organizations, public and women should be taken up to bring about attitudinal change in the mind set for promoting equal rights based on humanity for achieving gender equality.

The Hindu Succession (Amendment) Bill, 2005 incorporated a substantial number of amendments recommended by the Parliamentary Standing Committee which the Rajya Sabha unanimously adopted. The proposed Bill is a step towards attaining gender equality and abolition of the patrilineal system of inheritance prevailing among Hindus. Section 24 which was subjected to a lot baseless differentiation among the Hindu widows has now been removed. In today’s time where the notions of gender equality is given utmost importance, maintaining such provisions hold no justification.

 

 

 

[1]Omitted by Act No. 39 of 2005, w.e.f. 9-9-2005

[2] The Law Commission Report of India in its 174th Report on “Property Rights of Women: Proposed Reforms under the Hindu Law”.

[3] Section 2 of the Hindu Widow Remarriage Act, 1856, on this basis divested the inheritance already vested in the widow on her remarriage.

 

[4] P.V. Kane, HISTORY OF DHARMASASTRA, 3rd ed. 1993, pp. 583.

[5]Ibid.

[6] Ibid, p.585

[7] Ibid.

[8] Ibid, p.685

[9] 49 Bom. 459.

[10] 62 I.A. 250

[11] 33 Bom. L.R. 510

[12]Omitted by Act No. 39 of 2005, w.e.f. 9-9-2005

[13]AIR 1976 Cal 356.

[14]Kasturi Gakul, “Hindu Women’s Property Rights under the Hindu Succession Law: Past and Present”, http://www.clarion.ind.in/index.php/clarion/article/view/129 (October 6, 2013)

[15] “Texts of Dharmasastras as interpreted by the courts of Law”, http://www.lawteacher.net/land-law/essays/texts-of-the-dharmashastras-as-interpreted-by-the-courts-of-law-property-law-essay.php (October 12, 2013)

[16] AIR 1972 MP 145

[17]AIR 1976 SC 2595

[18] AIR 2008 SC 1467

[19]AIR 1973 P&H 363

[20]AIR 1968 Raj 139.

[21] AIR 1968 Raj 139.

[22]Paras Diwan, LAW OF INTESTATE AND TESTAMENTARY SUCCESSION, 2007, pp.221

[23] AIR 2002 Gau 96

[24] AIR 1968 Raj 139.

[25] The Law Commission Report of India in its 174th Report on “Property Rights of Women: Proposed Reforms under the Hindu Law”.

[26]The three categories are widow of a predeceased son of the deceased or, widow of a predeceased son of a pre-deceased son of the deceased or the widow of a brother of the deceased.

[27]AIR 1976 SC 2595

[28] “Texts of Dharmasastras as interpreted by the courts of Law”, http://www.lawteacher.net/land-law/essays/texts-of-the-dharmashastras-as-interpreted-by-the-courts-of-law-property-law-essay.php (October 12, 2013)

[29]Kasturi Gakul, “Hindu Women’s Property Rights under the Hindu Succession Law: Past and Present”, http://www.clarion.ind.in/index.php/clarion/article/view/129 (October 6, 2013)

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