Whether Hindu widow can inherit husband's property if she has not remarried on the day succession opens?

 It is very well true that if we have to deal with rights of a

particular party, we have to consider the provisions of relevant law in

its entirety. Section 14 of the Act of 1956 makes the female Hindu

being absolute owner if she possessed the property. Whereas Section 24 of the said Act disinherits the widow if she re-marries. Here this Court wants to note the difference in between the wordings of Section 2 of the Act of 1856 on one hand and the wordings of Section 24 of the Act of 1956. 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. {Para 14}

15] 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. Admittedly, defendant-Sunanda re-married

in May, 1991 (i.e. after opening of succession on 19th April, 1991). For

the above discussion, contention of the appellant so as to disqualify the

defendant-Sunanda cannot be accepted.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

SECOND APPEAL NO.144 OF 2007

Smt. Jaiwantabai Shenuji Wankhade Vs  Sunanda w/o Ganesh Dode,

CORAM : S.M. MODAK, J.

PRONOUNCED ON : 23 rd AUGUST, 2021

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Whether widow can become the absolute owner of property inherited from her husband even if she is not in actual possession of it?

On a careful perusal of the aforesaid provision, it is quite vivid that under Section 14(1) of the Act of 1956, to get attracted, the property must be possessed by the female Hindu on coming into force of the Act of 1956. The object of this provision is firstly, to remove the disability of a female to acquire and hold property as an absolute owner and secondly, to convert any estate already held by woman on the date of commencement of the Act as a limited owner, into an absolute estate. {Para 17}

19. Their Lordships of the Supreme Court in the matter of Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva and others (1970) 1 SCC 786 while considering the meaning of “any property possessed by a female Hindu” quoted with approval the following words of Justice P.N. Mookherjee in the matter of Gostha Behari v. Haridas Samanta  AIR 1957 Cal 557 (at page 559):

“The opening words in “property possessed by a female

Hindu” obviously mean that to come within the purview of

the section the property must be in possession of the

female concerned at the date of the commencement of the

Act. They clearly contemplate the female's possession

when the Act came into force. That possession might have

been either actual or constructive or in any form recognised

by law, but unless the female Hindu, whose limited estate

in the disputed property is claimed to have been

transformed into absolute estate under this particular

section, was at least in such possession, taking the word

“possession” in its widest connotation, when the Act came

into force, the section would not apply.”

and Their Lordships held :

“In our opinion, the view expressed above is the correct

view as to how the words “any property possessed by a

female Hindu” should be interpreted.”

20. In Eramma (supra), the Supreme Court held that the property possessed by a female Hindu as contemplated in the Section is clearly the property to which she has acquired some kind of title whether before or after the commencement of the Act and negatived a claim under Section 14(1) of the Act in view of the fact that the female Hindu possessed the property on the date of the Act by way of a trespass after she had validly gifted away the property, and further held that the need for possession with a semblance of right as on the date of the coming into force of the Hindu Succession Act was thus emphasized.

21. In the matter of Dindayal and another v. Rajaram AIR 1970 SC 1019 it was held that before any property can be said to be “possessed” by a Hindu woman as provided in Section 14(1) of the Hindu Succession Act, two things are necessary (a) she must have a right to the possession of that property, and (b) she must have been in possession of that property either actually or constructively.

22. Thereafter, in the matter of V. Tulasamma and others v. Sesha Reddy (Dead) by LRs. (1977) 3 SCC 99, their Lordships considered the real nature of incidence of Hindu widow's right of maintenance and scope and ambit of Section 14(1) of the Act of 1956 and held as under: -

“The words “possessed by” used by the Legislature in

Section 14(1) are of the widest possible amplitude and

include the State of owning a property even though the

owner is not in actual or physical possession of the same.

Thus, where a widow gets a share in the property under a

preliminary decree before or at the time when the 1956 Act

had been passed but had not been given actual possession

under a final decree the property would be deemed to be

possessed by her and by force of Section 14(1) she would

get absolute interest in the property. It is equally well

settled that the possession of the widow, however, must be

under some vestige of a claim, right or title, because the

section does not contemplate the possession of any rank

trespasser without any right or title.”

23. In the matter of Sadhu Singh v. Gurdwara Sahib Narike and others9, the Supreme Court pointed out the essential ingredients in determining whether sub-section (1) of Section 14 of the Act of 1956 would come into play and held that the antecedents of the property, the possession of the property as on the date of the Act and the existence of a right in the female over it, however limited it may be, are the essential ingredients in determining whether sub-section (1) of Section 14 of the Act of 1956 would come into play. It was further held that if she takes it as an heir under the Act, she takes it absolutely.

HIGH COURT OF CHHATTISGARH, BILASPUR

Second Appeal No.356 of 2001

Judgment delivered on: 28-6-2021

Loknath Vs  Sindhu, W/o Akhil Kolta,

Coram:

Hon'ble Shri Justice Sanjay K. Agrawal

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Whether former husband of Muslim wife can refuse to pay permanent alimony to her if she remarries after divorce?

 We may conclude observing that when the Court makes an award of permanent alimony or for one time payment, it is not founded on any stipulation that any part of the sum would be either actually refunded in whole or in part. Such sum is not granted on the condition against remarriage for all times to come or for any particular period. In fact, it is something different from the obligation of her husband to maintain his divorced wife for his life or until remarried. The permanent alimony in a way is an estimated sum in lump sum to discharge the judgment debtor from his future liabilities unconditionally. On the other hand, the grant of periodical payment by way of maintenance to a divorced wife is in recognition/obligation to the spouse to maintain her so long as she enjoys the continued status of a divorcee. On such remarriage, that status of divorcee comes to an end and she acquires another marital status as someone's spouse. Under the Act, 1986 as well as under Section 125 Cr.P.C., the wife includes a divorcee. Therefore, when the wife remarries, her claim of maintenance primarily comes to stand against her new husband coming into existence in new relationship. The obligation of maintaining the divorced wife is shifted to the husband, whom she subsequently marries. The future obligation to maintain her by her previous husband comes to an end. That makes a case of permanent alimony different from a case of grant of periodical maintenance. The former is to discharge the husband from his obligation for all times in lieu of a settled reason, in the later, he is required to continuously discharge his obligations at interval of every period. This proposition of law laid down by us should be looked into keeping in mind Section 3(1)(a) of the Act, 1986. A divorced woman is entitled to 'a reasonable and fair provision" and "maintenance" to be made and paid to her within and post the Iddat period by her former husband. The Supreme Court in Danial Latifi (supra) interpreted this as two separate obligations. The Court found "reasonable and fair provision' to mean a provision in advance for the future needs of the ex-wife including her residence, food, clothes and other necessities. The Supreme Court found that the Act, 1986 requires a Muslim husband to provide maintenance of a reasonable and fair amount needed to maintain his wife for the rest of her life but that he must pay this amount in total during the iddat Period. At the cost of repetition, we state that the provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage. In other words, the relief of permanent alimony is a relief incidental to the granting of the substantive relief by the Court in the main proceeding.{Para 79}

80. From the aforesaid discussion the following conclusions emerge;

(A) Before the enactment of the Act, 1939, a woman, under pure Muslim Law, had no right to get a decree for divorce from the husband if the husband refuse to divorce her. The Act, 1939, for the first time, conferred a legal right to move the Civil Court for a decree for dissolution of marriage on the grounds specified in Section 2 of the Act, 1939. After the Act of 1939, a wife thus had a statutory right to obtain a divorce from her husband through the Court on proof of the grounds mentioned in the Act.

(B) A decree for dissolution of marriage obtained by the wife under the provisions of the Act, 1939 is a legal divorce under the Muslim Law by virtue of the statute. The ex-wife, having obtained divorce from her erstwhile husband under the provisions of the Act, 1939 is entitled to reasonable and fair provision under Section 3 of the Act, 1986.

(C) Section 20 of the Family Courts Act, 1984 gives an overriding effect to the provisions of the Act over all other enactments. The Family Courts Act has in its comprehension all community including the Muslims. All disputes between the Muslim community within the purview of the Family Courts Act are to be settled by the Family Courts.

(D) The dispute contemplated by Section 3 of the Act, 1986 is within the purview and four corners of the Family Courts Act as the dispute under Section 3 of the Act, 1986 also relates to matrimonial relations between the parties.

(E) The right of maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution. Those reliefs are incidental to the main relief of 'dissolution of marriage' and therefore, these reliefs are very much an integral part of the decree of 'dissolution of marriage'. The Law contemplates that the husband has two separate and distinct obligations; (I) to make "reasonable and fair provision" for his divorcee wife and (ii) to provide "maintenance" for her. The obligation to make a reasonable and fair provision for the divorced wife is not restricted until the divorced wife remarries. It is within the jurisdiction of the Family Court to pass an order for a lump sum amount to be paid to the wife in discharge of the obligation of the husband under Section 3(1)(a) of the Act, 1986 and such order cannot be modified upon remarriage of the divorced Muslim wife.

(F) The provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage.

(G) When the Family Court makes an order of permanent alimony or for one time payment in the proceedings instituted by the wife for divorce, it is not founded on any stipulation that any part of the sum would be refunded either in whole or in part. Such sum is not granted on the condition against remarriage for all times to come or for any particular period. It is something different from the obligation to her husband to maintain his divorced wife for his life or until remarried. The permanent alimony in a way is an estimated sum in lump sum to discharge the husband from her future liabilities unconditionally.

(H) The grant of periodical payment by way of maintenance to a divorced wife is in recognition/obligation of the spouse to maintain her so long as she enjoys the continued the status of divorcee. If the wife gets remarried, her status of divorcee is come to an end and the liability of the husband to pay periodical maintenance would also come to an end.

81. It is brought to our notice by the learned counsel appearing for the respective parties that the appellant herein remarried way back in the year 2014. This is suggestive of the fact that much before the respondent herein instituted the proceedings in the Family Court for divorce, the husband had already remarried and raised a family. The appellant could do so because polygamy is permissible amongst the Muslim Community. It does not constitute an offence of bigamy punishable under 494 of the Penal Code. The materials on record further indicates that the husband hardly paid anything towards maintenance. The respondent had to leave her matrimonial home soon after the marriage, i.e., sometime in 2010. Ultimately, she was constrained to institute the proceedings of divorce in the Family Court. It appears that even during the pendency of such proceedings before the Family Court, nothing was paid to the wife. The wife, ultimately, succeeded before the Family Court in getting the marriage dissolved and was also successful in getting an order of permanent alimony. The husband now cannot turn around and say that he is not liable to pay the lump sum amount because the respondent is remarried.

 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/First Appeal No. 2012 of 2019 and Civil Application No. 1 of 2019 in R/First Appeal No. 2012 of 2019

Decided On: 19.03.2020

 Tarif Rashidbhai Qureshi Vs.  Asmabanu

Hon'ble Judges/Coram:

J.B. Pardiwala and V.B. Mayani, JJ.

Author: J.B. Pardiwala, J.

Citation: MANU/GJ/0734/2020

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Whether wife can execute order passed in her favour under S 12 of Domestic violence Act after her divorce?

Moreover, our law recognises the right of a divorced wife to get maintenance till her remarriage. This Act of 2005 provides additional rights and remedies to the aggrieved person. If the contention of the petitioner is accepted then the wife will be forced to approach before the Magistrate to get maintenance under Section 125 of the Code of Criminal Procedure. What is needed is that the existence of domestic relationship as defined in the Act is necessary to bring an action and to get relief under the Act of 2005. Existence of domestic relationship is not needed to execute the order granted under Section 12 of the Act of 2005 and the divorced wife who got an order of maintenance and other relief under the Act of 2005 prior to the decree of divorce is entitled to execute the same if she is unable to maintain herself and she has not remarried and for other reasons.

In the High Court of Calcutta

(Before Madhumati Mitra, J.)

Krishnendu Das Thakur v. State of West of Bengal and Another

C.R.R 3566 of 2018 and CRAN 1348 of 2019

Decided on June 28, 2019

Citation: 2019 SCC OnLine Cal 969

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Whether widower is entitled to get family pension if he has remarried?

As per Rule 116(5)(i) of the Pension Rules, in the case of a widower, the family pension is payable upto the date of his death or remarriage, whichever is earlier. The meaning of the word 'widower' as stated in Black's Law Dictionary, 9th Edition is "a man, whose wife has died and who has not remarried". It is true that the petitioner has not got remarried after the death of Sunanda, but indisputably, in view of his second marriage with some other woman during the life time of Sunanda, may be with the consent of Sunanda, he would not assume the status of 'widower', who has not performed marriage. He certainly continues to be the husband of the woman with whom he has performed second marriage. It would be rather a hyper-technical an approach to say that the petitioner, who has already performed a second marriage/remarriage, should not be called as a person "remarried" for the purpose of getting family pension, only because the said remarriage was not after the demise of his wife Sunanda. The intention underlying Rule 116(5)(i) of the Pension Rules is not to extend the benefit of family pension to a person, who is enjoying a marital life with some other woman than the deceased Government servant.

7. As stated above, the case of the petitioner certainly would not fall under Rule 116(5)(i) of the Pension Rules since he is enjoying the marital life even after the death of Sunanda. The petitioner would not be entitled to get family pension, claiming himself to be the widower of the deceased Sunanda, since he has remarried.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 6117 of 2007

Decided On: 13.11.2017

 Deelip  Vs. Government of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.P. Deshmukh and Sangitrao S. Patil, JJ.

Citation: 2018(5) MHLJ 129

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Whether Mother can be denied custody of child on ground that she has Remarried or she is Divorced?

It is well settled that while deciding
the question of custody, the welfare of the minor child is of paramount
consideration.   In the case of  Mausami Moitra Ganguli Vs. Jayant
Ganguli1
 the Apex Court has observed as under:
"19. The principles of law in relation to the custody of a
1 (2008) 7 SCC 673

minor   child   are   well   settled.   It   is   trite   that   while
determining the question as to which parent the care and
control of a child should be committed, the first and the
paramount consideration is the welfare and interest of the
child and not the rights of the parents under a statute.
Indubitably   the   provisions   of   law   pertaining   to   the
custody of a child contained in either the Guardians and
Wards Act, 1890 (Section 17) or the Hindu Minority and
Guardianship Act, 1956 (Section 13) also hold out the
welfare of the child as a predominant consideration. In
fact, no statute, on the subject, can ignore, eschew or
obliterate the vital factor of the welfare of the minor. 
20. The question of welfare of the minor child has again
to be considered in the background of the relevant facts
and circumstances. Each case has to be decided on its own
facts and other decided cases can hardly serve as binding
precedents insofar as the factual aspects of the case are
concerned. It is, no doubt, true that father is presumed by
the statutes to be better suited to look after the welfare of

the child, being normally the working member and head
of   the   family,   yet   in   each   case   the   Court   has   to   see
primarily to the welfare of the child in determining the
question of his or her custody. Better financial resources
of either of the parents or their love for the child may be
one of the relevant considerations but cannot be the sole
determining factor for the custody of the child. It is here
that a heavy duty is cast on the Court to exercise its
judicial discretion judiciously in the background of all the
relevant   facts   and   circumstances,   bearing   in   mind   the
welfare of the child as the paramount consideration."
8. In the instant case, the girl child is about seven years of age.
She is in the care and under protection of the Respondent mother since
the time she was barely one & half years old. There is nothing on
record to indicate that the Respondent­mother has neglected the child
or deprived her of physical comfort and other needs and necessities due
to financial constraints.
9. The girl child of tender years would require mothers love,
care and affection. There is no material on record to indicate that there
are elderly female members in the house of the Appellant­father or

other children in the age group of the child to take care of the child or
to keep her company.  Under such circumstances depriving the child of
mothers care, company and guidance and further dislocating her from
familiar   surroundings   can   cause   mental   stress   and   psychological
trauma.  Thus, disturbing the custody will be detrimental to the interest
of the child.   We may add here that the Appellant­father's financial
position cannot override considerations of the welfare of the child.
Consequently, the Appellant­father cannot have preferential claim over
the mother solely because of his financial position. Rather it will be in
the best interest of the child if the Appellant­father makes valuable
contribution and takes care of  educational, medical and other needs of
the child. Such approach will ensure healthy growth and development
of the child.
10. Though the learned counsel for the Appellant­father has
submitted that the atmosphere in the parental home of the Respondent
is not conducive  for the welfare of  the child, we do not find any
pleadings to support such contentions.  We therefore, do not propose to
go into the merits of such allegations.  Suffice it to say that the mother
of the Respondent has married twice or that she is a divorcee is not a
relevant factor in deciding the entrustment of the child.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.62 OF 2016
Shrirang Purushottam Deshmukh 
V
Smt. Radhika Shrirang Deshmukh 

CORAM  : A.S. OKA &
                   SMT. ANUJA PRABHUDESSAI, JJ.
    DATED  :  14th DECEMBER, 2016.

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Whether widow is entitled to get provident fund money of her deceased husband after her remarriage?

Mr.S.K.Mani, learned Counsel for the respondent agreed with regard
to the legal point raised by the learned Counsel for the appellant. In fact,
he very fairly produced the judgment of this Court in Selvi v. K.Alagarsamy
reported in 2010 (2) TN MAC 328, wherein, after discussing various provisions
of Hindu Succession Act, 1956 and Hindu Widows Re-marriage Act, 1856, the  
right of the widow not only to remarry, but also to inherit the property of
the late husband has been declared and the women including widows are treated 
as co-parcener on par with the males.
        5. Paragraph 24 of the said judgment is extracted hereunder:
        "24. The Honourable Supreme Court in Cherotte Suganthan (Died) through 
LRs. and others v. Cherotte Bharathi and others, 2008 (2) LW 102 analysed the
overriding effect of Hindu Succession Act (1956) on Hindu Widows Remarriage
Act, 1856. It was held that Section 2 of the Hindu Widows Remarriage Act,
1856 would not prevail over the provisions of the Hindu Succession Act, 1956
Act having regard to Sections 4 and 24 thereof. It is further held that Hindu
Widows were brought on equal footing in the matter of inheritance and
succession along with the male heirs. Section 14(1) of the Act, stipulates
that any property possessed by a female Hindu, whether acquired before or
after the commencement of the Act, will be held by her as a full owner
thereof. All the aforesaid Acts namely, Hindu Widows Remarriage Act, 1856,
Hindu Succession Act, 1956, Hindu Widow Remarriage (Repeal) Act, 1983 and Act   
39 of 2005 which deleted Section 24 of Hindu Succession Act with effect from
09.09.2005, recognise the right of the widows not only in remarriages but
also in inheriting the properties of the late husband. In nut-shell, the
women including widows are treated as co-parcener on par with the males."

        6. It is very disheartening to note that the appellant lost her second
husband within fifteen days of the remarriage and her position has not been
improved any more. 
        7. As stated above, she is entitled to a share in the Provident Fund
amount on par with the respondent, who is the mother of the deceased husband.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

DATED: 15.12.2016  

CORAM   

MR.JUSTICE N.KIRUBAKARAN             

C.M.A(MD)No.1397 of 2006   
and 
M.P(MD)No.1 of 2006  

Yashodha      Vs.  Chellammal                                     

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Whether muslim woman is entitled to get maintenance till she gets remarried?

While upholding the validity of the Act, we may sum up our
conclusions:
1) a Muslim husband is liable to make reasonable and fair
provision for the future of the divorced wife which
obviously includes her maintenance as well. Such a
reasonable and fair provision extending beyond the iddat
period must be made by the husband within the iddat
period in terms of Section 3(1)(a) of the Act.
2) Liability of Muslim husband to his divorced wife arising
under Section 3(1)(a) of the Act to pay maintenance is not
confined to iddat period.
3) A divorced Muslim woman who has not remarried and
who is not able to maintain herself after iddat period can
proceed as provided under Section 4 of the Act against
her relatives who are liable to maintain her in proportion to
the properties which they inherit on her death according to
Muslim law from such divorced woman including her

children and parents. If any of the relatives being unable to
pay maintenance, the Magistrate may direct the State
Wakf Board established under the Act to pay such
maintenance.
4) The provisions of the Act do not offend Articles 14, 15
and 21 of the Constitution of India. “
21. In this background, what is required to be noted is that
even if the parties are governed by Mohammedan Law and
provisions of Divorce Act are applicable, still the maintenance is not
required to be confined only to iddat period but till the said lady gets
remarried.
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
 CRIMINAL WRIT PETITION NO. 544 OF 2003
 Rehana Sultana Begum
w/o Hashmi Syed Mujib,

 VERSUS

Hashmi Syed Mujib s/o Hashmi Syed
Yakub, 
 CORAM : N.W. SAMBRE, J.

 PRONOUNCED ON: 11/08/2016

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Whether wife can be restrained from performing re-marriage after decree of nullity is passed in her favour?

Family - Limitation on Re-marriage - Section 15 of Hindu Marriage Act, 1955 - Trial Court dismissed husband's suit for restitution of conjugal rights but decreed suit of wife annulling marriage between parties on ground of former's impotency since marriage - Husband filed appeal during pendency of which wife got re-married and thereafter, applied for dismissal of appeals as infructuous - Appellant prayed status quo till final decision of appeals - Held, there was no legal incompetency in Respondent wife for contracting re-marriage once her marriage with Appellant had been annulled by a decree of nullity - Marriage between Appellant and Respondent having been annulled, their status as husband and wife of each other had ceased to exist - If Appellant wanted status quo to be preserved till final decision of appeals, he should have applied for prohibitory order restraining Respondent from marrying again till appeals filed by him had been decided - In absence of any such order, Respondent was no more wife of Appellant and there was no provision in law which created any impediment to her re-marriage - Re-marriage was thus valid marriage, it was neither void nor voidable - It could not be annulled or dissolved for reason that it was contracted during pendency of appeals, nor could it be affected by ultimate decision of appeals, even if it went in favour of Appellant - Limitations to re-marriage provided by Section 15 have no application to decree of nullity - Respondent cannot revert to her status as wife of Appellant even if his appeals succeed, because her re-marriage, under law, is neither void nor voidable, but valid and irrevocable - Appeals became infructuous and were liable to be dismissed - Appeal dismissed.

Madhya Pradesh High Court

Mohanmurari vs Smt. Kusumkumari on 22 December, 1964

Equivalent citations: AIR 1965 MP 194

Bench: T Naik, S Dayal

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