The Nagpur bench of the Bombay High Court has held that a re-married widow has a right to her deceased husband's property, if she was not re-married when the husband passed away. The term used by the Court to describe this situation was "the day the succession opens."
A single-judge bench of Justice SM Modak, in an order passed last month, after discussing the provisions of Hindu Succession Act, 1956 and the Hindu Widows' Re-marriage Act, 1856 (which was repealed in 1983), observed,
"There is emphasis 'on the date when succession opens' as per Section 24 of the Act of 1956. The status of the widow being remarried continuing to be widow must be on the date when succession opens. The wordings "if on the date the succession opens" does not find place in Section 2 of the Act of 1856. So, we have to respect the intention of the legislators while incorporating these provisions in Section 24 of the Act of 1956."
The court thus ruled, "In other words, if the widow has not re-married when the succession opens, the disqualification under Section 24 of the Act of 1956 will not be applicable."
these developments came in an appeal by one Janiwantabai Wankhade against an order which allowed Jaiwantabai's deceased son's widow Sunanda to get all his retiral dues. Jaiwantabai's son and Sunanda's deceased husband Anil used to work with the Indian Railways as a pointsman.
He passed away due to an accident on April 19, 1991, at which time Sunanda was living separately from Anil due to disputes between them, but, was still not married to anyone else or divorced from Anil. She eventually remarried about a month later.
In 1993, Jaiwantabai laid claim to Anil's retiral dues with the Railways and also informed them about Sunanda's remarriage. The Railways passed an order in Sunanda's favour.
Jaiwantabai challenged the order before a Civil Judge (Junior Division), who then passed an order saying both Jaiwantabai and Sunanda were entitled to the money but asked Jaiwantabai to file separate proceedings against Sunanda to recover her share.
Jaiwantabai challenged this order before the Bombay High Court arguing that Sunanda did not have any rights to Anil's retiral dues because of remarriage.
Justice Modak observed that as per Section 24 of the Hindu Succession Act, 1956 the widow was disqualified from claiming a share in properties only after getting remarried, and not if she wasn't married "on the date when succession opens," which, in this case was April 19, 1991.
"The status of the widow being re-married continuing to be widow must be on the date when succession opens," the court observed and upheld Sunanda's rights in her deceased husband's retiral dues.
The court, however, also asked her to refund 50 per cent of the money to her former mother-in-law as the Railways had paid the entire due to her.
Case Title: Jaiwantabai Wankhade v. Sunanda & Ors.