Does A Widow Who Remarries Have A Right In Her Former Husband's Property?

Updated on March 7:

While giving a verdict on a case on March 5, the Delhi court announced that a widow has the right over the property purchased by her husband in her name and her daughter and son-in-law cannot lay claim on it. 

This verdict was given when the court was deciding on the case of 65-year-old Lajwanti Devi, who had moved the court against her daughter and son-in-law. The two had refused to vacate a portion of the Shastri Nagar house her husband bought in her name. 

Additional District Judge Kamini Lau, held the woman as the owner of the house her husband purchased in 1966 in his wife's name to “provide her a secure life” after his death and her daughter and son-in-law were only having “permissive possession” of the house.

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Archana Sahu, 23, was leading a happy matrimonial life till her husband passed away in a freak road accident. Friends and well-wishers advised her to get married again. Initially reluctant, Sahu gave in to family pressure. But, she was in for a rude shock when she realised that her former in-laws were not interested in giving her a single penny from her late husband's property, including the house in which she had made a part of the payment.

Left emotionally aghast, Sahu took the matter to the court. Her lawyer told her that her former in-laws were relying on the provisions of the outdated Hindu Widows' Remarriage Act, 1856. The archaic law stated that the limited right and interest that a widow had in her deceased husband's property would cease to exist if she remarries without permission, and the next heirs of her husband shall be the successors.

But, according to Section 8 of the Hindu Succession Act, 1956, which provides the general rules of succession in case of males, the following would be the order of succession:

• First to Class-I heirs, which includes the deceased man's children, widow, mother, etc.

• Second to Class-II his father, siblings, etc. 

• Third to the agnates (related through a male link) of the deceased. 

• Fourth to the cognates (related to a female link) of the deceased.

This is why ruling in Sahu's favour, the court held that the provisions of the Hindu Succession Act, 1956, would override the provisions of the repealed Hindu Widows' Remarriage Act, 1856. The court held that even after remarriage, a widow would qualify as Class-I heir, and her late husband's kin would still be the Class- II heir. The judge concluded that a woman doesn't lose the right over her dead husband's properties — moveable and immoveable — even if she marries.

In the same breath, Section 23 of the Hindu Succession Act, disentitles a woman from seeking partition in respect of a dwelling occupied by a joint family until the male heir chooses to seek partition of the property to divide the respective shares. This is why, Sahu will have to wait till the head of her late husband's family divides the shares among the legal heirs.

Inserted in the Act in 2005, this Section gave daughters the same right as sons to reside in and claim inheritance in the ancestral property but failed to talk about widows seeking a share in their deceased husband's property. In 2008, the Supreme Court also held that a widow, who remarries cannot be deprived of her share in her dead husband's property despite a change in her marital status.