RIGHTS OF WOMEN & DAUGHTERS
Applicability of The Indian Succession Act, 1925 - The general law relating to the inheritance and succession can easily be referred to The Indian Succession Act, 1925. Under this Act every Indian is entitled to equal shares on inheriting the property on the death of a person except Hindus, Sikhs, Jains, Buddhists and Muslims as they are governed under separate laws of succession.
Laws Of Succession Applicable To Parsis - For the intestate succession the governing law is the Indian Succession Act, 1925 specifically under section 50 to 56 of the Indian Succession Act, 1925.
Laws Of Succession Applicable To Christians And Jews - For the intestate the governing law is the Indian Succession Act, 1925 specifically under section 31 to 49 of the Act.
Applicability of Hindu Succession Act, 1956 - Laws of succession applicable to Hindus, Sikhs, Jains and Buddhist; for the non-testamentary or intestate succession/inheritance, the governing law is the Hindu Succession Act, 1956.
Laws of succession governing Muslims - For non-testamentary succession the The Muslim Personal Law (Shariat) Application Act, 1937 is applicable and where a muslim has died testate, the issue has to be governed under the Indian Succession Act, 1925 where a Will relates to immovable property situate within the State of West Bengal, and that of Madras and Mumbai Jurisdiction.
Right of Women under Under Hindu Succession Act, 1956
The properties of a Hindu male dying intestate devolves, in the first instance, equally on his sons, daughters, widow and mother and include the specified heirs of predeceased sons or daughters. The widow of the deceased is entitled to inherit equally with sons and daughters.
The provisions of section 30 of the Act raise issues which are questionable in nature whereby the deceased husband, if he so desires, may write a Will and exclude his wife. The Will may contain bequeath of all his properties and no means of support to the widow.
Daughters' rights in Hindu Succession Act, 2005
Earlier, once a daughter was married, she ceased to be part of her father's HUF. Many saw this as curtailing women's property rights. But on September 9, 2005, the Hindu Succession Act, 1956, which governs the devolution of property among Hindus, was amended. According to Hindu Succession Amendment Act, 2005, every daughter, whether married or unmarried, is considered a member of her father's HUF and can even be appointed as 'karta' (who manages) of his HUF property. The amendment now grants daughters the same rights, duties, liabilities and disabilities that were earlier limited to sons.
Earlier, according to the ruling, a daughter can avail of the benefits granted by the amendment only if her father passed away after September 9, 2005. and the daughter is eligible to be a co-sharer only if the father and the daughter were alive on September 9, 2005.
However, on February 2, 2018, Supreme Court has made it a general rule that a daughter, living or dead, on the date of amendment will be entitled to share in father’s property, thus making her children too to claim this right.
Rights of Daughters
1. Daughters have equal right of inheritance as sons to their father's property.
2. Daughters also have a share in the mother's property.
3. The Hindu Succession (Amendment) Act, 2005 (39 of 2005) came into force from 9th September, 2005. The Amendment Act removes gender discriminatory provisions in the Hindu Succession Act, 1956 and gives the following rights to daughters :
a) The daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son;
b) The daughter has the same rights in the coparcenary property as she would have had if she had been a son;
c) The daughter shall be subject to the same liability in the said coparcenary property as that of a son;
d) The daughter is allotted the same share as is allotted to a son;
4. A married daughter has no right to shelter in her parents’ house, nor maintenance, charge for her being passed on to her husband. However, a married daughter has a right of residence if she is deserted, divorced or widowed.
5. A woman has full rights over any property that she has earned or that has been gifted or willed to her, provided she has attained majority. She is free to dispose of these by sale, gift or will as she deems fit.
Rights of Wives
1) A married woman has exclusive right over her individual property. Unless she gifts it in part or wholly to anyone. She is the sole owner and manager of her assets whether earned, inherited or gifted to her.
2) Entitled to maintenance, support and shelter from her husband, or if her husband belongs to a joint family, then from the family.
3) Upon partition of a joint family estate, between her husband and his sons, she is entitled to a share equal to as any other person. Similarly, upon the death of her husband, she is entitled to an equal share of his portion, together with her children and his mother.
Rights of Mothers
1) She is entitled to maintenance from children who are not dependents. She is also a Class I heir.
2) A widowed mother has a right to take a share equal to the share of a son if a partition of joint family estate takes place among the sons.
3) All property owned by her may be disposed by sale, will or gift as she chooses.
4) In case she dies intestate, her children inherit equally, regardless of their sex.
Right of Women under Muslim Law, 1937
Rights of Daughters :
1) In inheritance, the daughter's share is equal to one half of the son's in keeping with the concept that a woman is worth half a man.
2) She has, however, and has always had full control over this property. It is legally hers to manage, control, and to dispose of as she wishes in life or death.
3) Though she may receive gifts from those whom she would inherit from, there should be no doubt that the gift is a means of circumventing the inheritance laws of one third of a man's share, since, under Muslim law. The shares of inheritance are very strict.
4) Daughters have rights of residence in parent's houses, as well as right to maintenance, until they are married. In case of divorce, charge for maintenance reverts to her parental family after the iddat period (approximately 3 months). In case she has children capable of supporting her. The charge falls upon them.
Rights of Wives
1) In Islamic law a woman's identity, though inferior in status to a man's is not extinguished in him when she marries
2) Thus she retains control over her goods and properties. She has a right to the same maintenance he gives to his other wives, if any, and may take action against him in case he discriminates against her.
3) The Supreme Court has held that in the case of divorce, 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 (1Ha) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and liability of Muslim husband to pay maintenance is not consigned to iddat period.
4) Right to mehr' according to the terms of the contract agreed to at the time of marriage.
5) She will inherit from him to the extent of one eighth if there are children or one fourth if there are none. If there is more than one wife, the share may diminish to one sixteenth. In circumstances, where there are no sharers in the estate as prescribed by law, the wife may inherit a greater amount by will. A Muslim may dispose of one third of his property by will, though not to a sharer in the inheritance.
Rights of Mothers
1) In case of divorce or widowhood, she is entitled to maintenance from her children.
2) Her property is to be divided according to the rules of Muslim law.
3) She is entitled to inherit one sixth of her deceased child's estate.
Right of Women under Christian Law
Rights of Daughters
1) She inherits equally with any brothers and sisters to her father's estate or her mothers'.
2) Entitled to shelter, maintenance before marriage, but not after from her parents.
3) Full rights over her personal property, upon attaining majority. Until then, her natural guardian is her father.
Rights of Wives
1) She is entitled to maintenance, from her husband, but his failure to provide the same is note by itself ground for divorce.
2) Upon death of her husband, she is entitled to a one third share of his property, the rest being divided among the children equally.
3) She must inherit a minimum of Rs.5000/- from her husband's estate. Supposing the estate is more than this amount. In case it is not, she may inherit the whole.
Rights of Mothers
1) She is not entitled to maintenance from her children.
2) In case any of her children dies without spouse or living children she may inherit one fourth of the assets.
Right of Women Under Parsi Law
In 1925, when the Indian Succession Act was enacted, (which governs mainly Christian succession) the Parsi Intestate Succession Act was verbatim incorporated in Chapter III of this Act.
The Indian Succession Act did not discriminate between male and female heirs. But before the Amendment of Parsi intestate Act in 1991, the Paris inheritance laws, continued to maintain the discrimination and females continued to inherit half the share of their male counterparts. Section 50-56 of Indian Succession Act, 1925 deal with the Parsi.
Right of Daughter under Parsi Law - Before the Amendment - In case of Parsi male dying intestate the position of the daughter was very much inferior as compared to son because
(a) where he dies leaving a widow and children, among the widow and children, so that the share of each son and of the widow shall be double the share of each daughter, or
(b) where he dies leaving children but no widow, among the children, so that the share of each son shall be double the share of each daughter (section 51).
In case of females dying intestate the position of daughter was better, because she get a share equal to son as where she dies leaving a widower and children among the widower and children so that the widower and each child receive equal shares; or where she dies leaving children but no widower, among the children in equal shares (section 52).
After the Amendment: After the period of 1991, by Act 51 of 1991 Section 51 have been newly drafted. Now it runs as :
(1) Subject to the provisions of sub-section (2), the property of which a male parsi dies intestate shall be divided-
(a) Where such Parsi dies leaving a widow or widower and children, among the widow or widower, and children so that the widow or widower and each child receive sharers.
(b) Where such Parsi dies leaving children, but no widow or widower, among the children in equal shares.
(2) Where a Parsi dies leaving one or both parents in addition to children or widow or widower and children, the property of which such Parsi dies intestate shall be so divided that the parent or each of the parents shall receive a share equal to half the share of each child.
Thus, now the daughter sharers equally with the son and if a Parsi intestate dies leaving behind only one son and one daughter, both the children will inherit equally.
Right of Widow
The widow of an intestate is one of his primary heirs and inherits along with his lineal descendents, taking a share which is equal to that of her children. In case where the intestate leaves no lineal descendants but leaves a widow or widower or a widow or widower of any lineal descendents than the position of widow is that:
(a) If intestate leaves a widow or widower but no widow or widower of lineal descendants, the widow or widower shall take half of the said property (section 54(a)).
(b) If the intestate leaves a widow or widower and also a widow or widower of any lineal descendants, his widow or her widower shall receive one-third of the said property and the widow or widower of any lineal descendants shall receive another one-third or if there is more than one such widow or widower of lineal descendants, the last-mentioned one-third shall be divided equally among them (section 54 (b)).
(c) If the intestate leaves no widow or widower but one widow or widower of a lineal descendant, such widow or widow of the lineal descendant receive one-third of the said property or if the intestate leaves no widow or widower but more than one widow or widower of lineal descendants, two-third of the said property shall be divided among such widow or widower of the lineal descendants in equal share.
In absence of all his kindred, she succeeds to the whole of his property (section 54(c)).
Right of Mother
Before the Amendment: - In case of male Parsi dying intestate the share of mother is as follows:
a) Where a male Parsi dies leaving one or both parents, in addition to children or a widow and children, the property of which he dies intestate shall be divided so that the father shall receive a share equal to half the share of a son and the mother shall receive a share equal to half the share of a daughter.
b) Where Parsi dies leaving no lineal descendants, the presence of mother excludes all other relation from succession, but again she inherits only the half of father and other half goes to the widow.
c) Where the intestate was a female, her mother inherits with her father only in absence of her widower and the lineal descendants. Here also the share of the mother is equal to half of the share of the father.
After the Amendment: The mother now shares equally with the father but under the Parsi law the share of the parents is half the share of each child. Now where a Parsi dies leaving one or both parents in addition to children or widow or widower and children, the property of which such Parsi dies intestate shall be so divided that the parent or each of the parents shall receive a share equal to half the share of each child.
Similarly where the Parsi intestate dies leaving neither lineal descendents nor a widow or widower nor (a widow or widower of any lineal descendants) his or her next-of -kin, in the order set forth in Part II of Schedule II, shall be entitled to succeed to whole of the property of which he or she dies intestate. The next-of-kin standing first in Part II of that Schedule shall be preferred to those standing second, the second of the third, and so on in succession, provided that the property shall be so distributed that each male and female standing in the same degree of propinquity shall receive equal share (section 55). Among the next-of-kins mentioned in Part II of Schedule II, the order of preference will be as listed therein.
(1) Father and mother.
(2) Brothers and sisters (other than half brothers and sisters) and lineal descendents of such of them as have predeceased the intestate.
(3) Paternal and maternal grandparents.
(4) Children of the paternal and maternal grandparents and the lineal descendents of such of them as have pre-deceased the intestate.
(5) Paternal and maternal grandparents' parents.
(6) Paternal and maternal grandparents' children and the lineal descendants of such of them as have predeceased the intestate.
(7) Half brothers and sisters and the lineal descendants of such of them as have predeceased the intestate.
(8) Widows of brothers or half brothers and widowers of sisters or half sisters.
(9) Paternal or maternal grandparents' children's widow or widowers.
(10)Widows or widowers or deceased lineal descendants of the intestate, who have not married again before the death of the intestate.
Where the Parsi intestate dies leaving no lineal descendants but leaves a widow or widower of any lineal descendants then the position of the mother is defined under section 54(d), which lays down that the residue after the division specified in clause (a) or clause (b) or clause (c) has been made shall be distributed among the relatives of the intestate in the order specified in Part I of Schedule II; and the next-of-kin standing first in Part I of that Schedule shall be preferred to those standing second, the second to the third and so on in succession, provided that the property shall be so distributed that each male and female standing in the same degree of propinquity shall receive equal shares.
Part I of the Schedule II contains the following heirs:
(1) Father and mother
(2) Brother and sisters (other than half-brothers and sisters) and lineal descendants of such of them as shall have predeceased the intestate. (3) Paternal and maternal grandparents.
(4) Children of the paternal and maternal grandparents and the lineal descendants of such of them as have predeceased the intestate.
(5) Paternal and maternal grandparents' parents.
(6) Paternal and maternal grandparents' parents' children and the lineal descendants of such of them as have predeceased the intestate.
Thus, after the Amendment the mother and the father among themselves inherit equally and their presence would exclude all other heirs as both of them are in Category I. but here it is also worth mentioning that in the presence of children, widow, widower or lineal descendants, their number comes after exhausting all the other above mentioned heirs.
Maintenance
Definition of Maintenance: It is a right to get necessities which are reasonable. Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956 defines maintenance. According to this section Maintenance include,
(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment,
(ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage,
(c) “minor” means a person who has not completed his or her age of eighteen years.
Right To Maintenance Of Hindu Women Under Hindu Adoption And Maintenance Act
The right of maintenance arises from the concept of an undivided family. The head of such family is bound to maintain its members, their wives and their children. It is declared by Manu that “the aged mother and father, the chaste wife, and an infant child must be maintained even by doing a hundred misdeeds.”
In State of Haryana v. Smt. Santra, it was held that it is a liability created by Hindu Law and arises out of jural relation of the partie.
Right to Maintenance of the Hindu wife U/s 18 Hindu Adoption And Maintenance Act - Under matrimonial laws, a woman can obtain maintenance from her husband only as an adjunct to proceedings for divorce or judicial separation. But if woman is a Hindu, then she can claim maintenance and the right to live apart from her husband without having to file a petition for judicial separation or divorce. 19 Under Section 18 of HAMA, 1956 a woman can claim maintenance from her husband on any of the following grounds:
1 Subject to the provisions of this Section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish or willfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;.
(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.‟ Under the Hindu Adoptions and Maintenance Act, 1956 as it stands today, even if the husband is a member of a joint family, his wife has no right to maintenance against the relatives of her husband who is incapacitated and therefore unable to maintain her.
Under such circumstances, the aggrieved woman has only two alternative remedies available to her:
i) a suit for partition in respect of her husband’s estate, or
ii) a divorce petition for claim of maintenance.
Section 19 - Maintenance of widowed daughter-in-law -
(1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained, after the death of her husband, by her father-in law: Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance-
(a) from the estate of her husband or her father or mother, or
(b) from her son or daughter, if any, or his or her estate.
(2) Any obligation under sub-section (1) shall not be enforceable if the father-in law has not the means to do so from any coparcener property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the re-marriage of the daughter-in-law.‟
Status of Wife Of a Joint Hindu Family - A joint Hindu family comprises of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters as well.
In classical Hindu law, joint Hindu family was treated to be a normal condition of a Hindu family, it must be, noted that this idea of joint-ness of a Hindu family is separate from any notion of joint-ness of property ownership.
Principles of Hindu Law clarifies that “the existence of joint estate is not an essential requisite to constitute a joint family; and a family which does not own any property may nevertheless be joint. Authoritative judgments have explained this point as follows: “Hindus get a joint family status by birth, and the joint family property is only an adjunct of the joint family.” However, where there is joint estate and subsequently the members become separate in estate, the family ceases to be a joint Hindu family.
Status Of Wife of A Coparcener - The Hindu Succession Act (HSA), 1956 was amended in 2005 [Hindu Succession (Amendment) Act, 2005 (39 of 2005)] conferring coparcener property rights in favour of daughters.
The earlier Law (HAS, 1956) had conferred coparcener rights upon male members only. This has altered the fundamental framework of Mitakshara coparcener and a daughter is now inter alia capable of acquiring an interest in the coparcener property, demand a partition of the same, and dispose of the same through testamentary disposition.
The HAS, 1956 conferred limited rights upon those members of joint family who entered into it through marriage, whereas the 2005 Amendment confers coparcener rights upon those members who are born in the family and, therefore, they enjoy coparcener property rights by birth.
Those members who enter into joint family through marriage enjoy rights which are restricted i) to maintenance out of its funds, ii) right of residence in the family house, etc. n the light of the above, it can be said that the wives married into the joint Hindu family are denied any other coparcener property rights (beyond maintenance and residence) which are available to daughters who are born in the family. On the other hand, the share of a daughter would diminish the share of wife married to a coparcener.
Criminal Procedure Code - Section 125 is prescribed for maintenance of wives, children and parents.
If any person having sufficient means neglects or refuses to maintain-
a) His wife, who is unable to maintain herself, or
b) His legitimate or illegitimate minor child,
c) His father or mother, unable to maintain himself or herself.
Court in such cases may order such person to make a monthly allowance for maintenance to the wife, child or parents :
a) Order issued by a Magistrate of the first class.
b) Magistrate can also during the pendency of the proceeding order monthly allowance for the interim maintenance.
c) Application for the monthly allowance for the interim maintenance and expenses of proceeding shall, as far as possible, be disposed of with in sixty days from the date of the service of notice of the application.
d) "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
Maintenance in Muslim Law
The persons who are eligible for maintenance. Such persons are:
1.Wife
2. Children - Both boy and girl
3. Parents and Grandparents and
4. Any other relatives
Maintenance for Wife - Under Muslim law in India, maintenance is known as ‘Nafqah’. ‘Nafqah’ is the amount that a man spends on his family. The right to maintenance of a Muslim woman is absolute and not conditional on whether she can maintain herself or not.
Hence all the Muslim women earning or not earning are eligible for the right to maintenance which is contrary to most of the other religious acts where only dependent women are eligible for the maintenance.
It is the duty and liability of the husband to provide adequate maintenance to his wife in all the circumstances irrespective of his financial condition.
However, a Muslim woman cannot claim maintenance from her husband in the following cases:
1. She has not attained puberty.
2. She has abandoned her husband and marital duties with sufficient reason.
3. Where she elopes with some other man.
4. In a case where she disobeys the reasonable commands of her husband.
Quantum of Maintenance - The quantum of maintenance is not prescribed under any personal law. The court decides the quantum on the basis of the financial condition of husband and wife and any other circumstances relevant to the case.
The Shia Law decides the quantum of maintenance by taking into consideration the requirements of the wife. The Shafei Law determines the quantum of maintenance by the post of the husband. Thus, the basis of determination of quantum of maintenance is different for different sub-castes of Muslims.
Maintenance under Anti- Nuptial Agreements - A Muslim marriage is construed as a contract, an agreement that is made between the parties to the marriage (nikah) which prescribes the rights & duties of both husband and wife. In this agreement, the wife can stipulate some conditions for husband and in case of breach of such conditions; she has a right to live separately and is also eligible to receive maintenance.
The quantum of the maintenance and the terms are to be agreed and settled at the time of marriage itself. The wife can stipulate the contract of the marriage in case the husband ill-treats her/ or takes a second wife or keeps a concubine.
In such a case, she has the right to live separately from her husband and she is also eligible to claim maintenance against the husband. However, it has to be noted that the husband’s liability is limited only till the iddat period and the wife can claim maintenance only during the period of iddat and not beyond that.
Maintenance to Muslim Divorced Woman until Her Remarriage
In terms of Section (3) (a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife.
This includes her maintenance as well. Accordingly, the husband has to make a fair and reasonable provision for the maintenance of the wife beyond the iddat period as per the terms of Section 3 (1) (a) of the Act.
A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can claim maintenance under Section 4 of this act from her relatives who are entitled to her property after her death. This has provided additional rights to Muslim women.
Maintenance of the Children - Muslim Father is under the obligation to maintain his legitimate child until he attains the puberty age. Under Muslim Law, the father has to maintain his son only until he attains majority.
While he has to maintain his daughter until her marriage and till the time she goes to her husband’s home. Under the law, the father is not under a duty to maintain the illegitimate child.
Thus after perusing the above-mentioned facts, it can be easily concluded that the maintenance provisions of Muslim Law are different from other personal laws and are very unique.
Rights of Muslim Married Daughter in case of Inheritance of father’s Property - A daughter gets half of whatever share her brother gets. In case she has no brother, she is entitled to a share of half the property. In case of ancestral property of Muslim daughter’s father, she is entitled to 1/3 of her father’s property.
In case of unmarried daughter father has to maintain her daughter totally falls upon her parents, she has the right to stay in her parents’ house and seek maintenance. In case of a divorce, charge for maintenance reverts to her parental family after the iddat period (approximately three months) is over. But, if her children are in a position to support her, the responsibility falls on them.
Case Law
Raj Kishore Mishra v. Smt. Meena Mishra - Court held that the obligation of father-in-law shall not be enforceable if he has no means to maintain his daughter-in-law from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share. The object of this Section is to make it clear that the widowed daughter-in-law can claim maintenance from her father-in-law only where she is unable to maintain herself out of her own property or from the estate of her husband, father, mother, son or daughter. It is also provided that the father-in-law shall be under no obligation to maintain his daughter-in-law except in cases where there is some ancestral property in his possession from which the daughter-in-law has not obtained any share.
Masilamani Mudliar Vs. Idol Of Sri Swaminathswami Thirukoli - where the Supreme Court came to the conclusion that the personal laws, to the extent they are in violation of the Fundamental Rights, are nothing but void.
Avtar Singh vs. Jasbir Singh - High Court of Punjab and Haryana - In the said case, the Plaintiff was the wife of a man of unsound mind, who had sought 1/4th share in the land belonging to the family, from her father in law as maintenance for herself, her husband and her minor sons. The said share had been provided to her by her father in law through a family settlement before the Gram Panchayat; but the wife was later forcibly dispossessed of the land by her father in law and brother in law.
Since the said property had been voluntarily given by the father in law to his son of unsound mind and his family through a family settlement, the substantial question of law regarding the legal obligations of the father in law in such situations was not raised and the case was decided on the basis of whether the said family settlement before the Gram Panchayat was required to be registered in order to effect the validity.
However, before parting with the case, the Learned Judge made the following observations with regard to legal position of Hindu wives: “Before parting with judgment, it would be appropriate to mention that no provision has been brought to my notice by learned counsel for the parties that if husband is insane or of unsound mind, the daughter in law who is not having any source of maintenance can claim maintenance for herself. When she has to maintain her mentally-ill husband, her condition is worse than being a widowed daughter in law. In such a situation, the wife should be deemed to be dependent upon the father in law and entitled to maintenance as provided under Section 19 of the Hindu Adoptions and Maintenance Act.
Ramabai wife of Bhikaji Bhaskar v Trimbak Ganesh Desai - the husband, an undivided member of a Hindu joint family, had deserted his wife. The wife claimed maintenance for herself and her child from the husband‟s relatives. The Bombay High Court held: “No doubt, the authorities do not show that the relations of a deserted wife are under a personal liability to maintain her; but they do show that she is entitled to be maintained out of her husband’s property to the extent of one-third of the proceeds of that property.” The High Court thus upheld the claim of the wife to receive maintenance from her husband’s relatives, even though the latter did not have a personal obligation to do so.
Gopala Pattar v Parvathi Ammal - “It is difficult to see any distinction between the position of a widow who has been obliged to enforce her charge for maintenance and that of an abandoned wife who is obliged to do the same. If she has this right against her husband personally it can be enforced by the attachment and sale of his property and that property consists of an undivided share in the joint family property.
A charge, therefore, so long as the husband is alive and available is not really of such a benefit to the wife for, in effect, she is able to enforce a charge in execution; but if the husband should die or abscond, her right would be very considerably impaired, for she could no longer enforce the personal obligation, and would have to institute proceedings against the family and against the family property.
If there is no legal objection to a charge being given, it is.”In the above case, the High Court ordered that the abandoned wife should be paid maintenance out of her husband’s share in the joint family property.
Mangatmul V. Punni Devi (1995) (5) scale 199 SC - "maintenance must necessarily encompass a provision for residence. Maintenance is given so that the lady can live in a manner more or less to which she is accustomed. The concept of maintenance must therefore include provision for food and clothing and the like and take into account the basic need of a roof over the head.
Sh. Rajesh Chaudhary Vs. Nirmala Chaudhary CM (M) 1385/2004 DeIhi High Court - In this case the person was seeking permission to ascertain the paternity of the female child. He wanted to ascertain the paternity of the child through DNA Testing which allegedly was not fathered by him. The issue whether an estranged wife claiming maintenance for herself and the child can be denied any interim maintenance while the complex issue of DNA testing on an allegation of illegitimacy of the child awaits determination.
The law presumes both that a marriage ceremony is valid and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law is general presuming against vice and immorality. The court must carefully examine as to what would be the consequence of ordering the blood test, whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman." The sustenance of a minor child and her mother, the petitioner's wife is concerned, it cannot await the determination of the alleged illegitimacy and should be ordered expeditiously if found payable.
Smt. B.P. Achala Anand - Civil Appeal No. 4250 of 2000 - The Supreme Court in this case observed that right of a wife to reside in the matrimonial home under personal laws. A wife is entitled to be maintained by her husband. She is entitled to remain under his roof and protection. She is also entitled to separate residence if by reason of the husband's conduct or by his refusal to maintain her in his own place of residence or for other just cause she is compelled to live apart from him. Right to residence is a part and parcel of wife's right to maintenance. For the purpose of maintenance the term wife' includes a divorced wife.
Bharat Heavy Plates and Vessies Ltd., AIR 1985 Andhra Pradesh 207 - The husband was an employee in a company. He was allotted a company quarter in which he lived with his wife. The quarter was the matrimonial home. However, differences developed between the husband and wife, leading to their estrangement and finally the wife went to the Court, charging her husband with neglect to maintain her and her three minor children.
The husband left the company quarter and it was occupied only by his wife and minor children. The husband also wrote to the company, terminating the lease which was in his favour. The hovering prospects of eviction led the wife to the Court for protection, seeking an injunction restraining the company from evicting the wife and her three minor children.
The High Court upheld the order impugned before it, whereby the company was restrained from evicting the wife and her minor children. The Court took into consideration the facts that the quarter was meant to be used by the employee and the husband was under an obligation to provide shelter to the wife and children. The husband and the company had both recognized the quarter to be the matrimonial home wherein the wife too was residing. The amount of rent was directed to be deducted from the salary of the husband.
In the case of Smt. Dhanbhai v. State of M.P22 . where a Parsi male dies intestate leaving behind him his widow, three sons and two daughters, it was held that under Section 51, the two daughters together would get a share equal to the share of their mother or brother. It was further held, that the mere fact that the daughters took no step to get their names mutated or make any demand on other heirs for separation of their shares, cannot defeat their title, or effect it in any way to their disadvantage.
India : Supreme Court On The Rights Of Inter-Faith (Hindu-Muslim) Children
The Supreme Court of India, in the case of Mohammed Salim vs Shamsudeen1, has finalised the views of a number of High Courts by ruling that a child born out of the marriage of a Muslim man and Hindu woman is legitimate and the child is entitled to inherit the property of the father.
This is a very significant judgment in the current socio-cultural milieu, even though inter-faith marriages are still deeply frowned upon.
Inheritance Rights of a Child Born Out of an Irregular Marriage under Muslim Personal Laws.
All matters (except those relating to agricultural land) with respect to intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage, maintenance, dower, gifts etc., of Muslim followers are governed by the Muslim Personal Law (Shariat) Application Act, 1937 (Shariat). Shariat extends to the whole of India except the state of Jammu & Kashmir.
The principles of Shariat have been codified in texts, including Mulla's Principles of Mohammedan Law and Syed Ameer Ali's Principles of Mohammedan Law. In the 21st edition of Mulla's Principles of Mohammedan Law, under Section 250, at page 338, a marriage of a Muslim follower (Nikah) has been defined to be a contract with an objective of procreation and legalising of children.
Further, under the principles of Shariat, it has also been stated that a Nikah between a Mahomedan male and a Hindu female (Hindu religion followers are generally considered as idol or fire worshippers) is not void but merely irregular. However, the irregularity can be rectified by the wife converting to Muslim, Christian or Jewish Religion, or the husband adopting the Muslim faith.
Moreover, if consummation has taken place, the wife is entitled to dower (a widow's share for life of her husband's estate) but does not have the right to inherit the property of her husband. Further, the children born during the subsistence of the marriage are legitimate as in the case of a valid marriage and they are entitled to inherit the property of the father.
Facts of the Case :
In this case, Mohammed Ilias (Mohammed) had married Saidat and no children were born out of this wedlock. Thereafter, Mohammed married Valliamma, a Hindu woman who later converted to Islam and changed her name to Souda Beebi (Souda). Out of the said wedlock with Souda, Shamsudeen (Shamsudeen) was born. In 1947, Mohammed died and Souda re-married Aliyarkunju.
At the time of his death, Mohammed was in possession of a property (First Property) gifted to him by his mother, Zainam Beevi (Zainam). Subsequent to Mohammed's death, his mother Zainam passed away in 1955. Had Mohammed been alive at the time of Zainam's demise, Mohammed would have been entitled to inherit half a share in the second property of Zainam (Second Property) along with his brother.
Some years later in 1984, Mohammed's son Shamsudeen filed a suit for partition and possession of both the First Property and the Second Property before the Additional Sub-Court, Thiruvananthapuram, Kerala (Sub-Court). In his suit, Shamsudeen claimed rights over 14/16th share in the First Property and half share in the Second Property as a legal heir of Mohammed. In 1989, the said suit was allowed in his favour.
However, in 1994, the decision of the Sub-Court was set aside by the District Court of Thiruvananthapuram (District Court). The order of the District Court was challenged in an appeal before the High Court of Kerala (High Court). In 2007, the High Court set aside the order passed by the District Court and upheld the decision of the Sub-Court. The decision of the High Court was challenged before the Supreme Court of India (SC) in an appeal. The SC in its judgement dated January 22, 2019 considered whether Shamsudeen being born out of an irregular marriage (fasid) is entitled to claim share in his father's property.
After hearing the arguments and examining the law of the land, the SC held that the child born out of a marriage between a Muslim man and a Hindu women is a legitimate offspring and is entitled to his father's property unless the marriage is held to be void.
The main contention before the SC was that since Valliamma was a Hindu by religion at the time of her marriage, the marriage was void and Shamsudeen should not be allowed to inherit the rights of Mohammed in his property. They also contested that Mohammed had died two years prior to Shamsudeen's birth and hence there was no possibility of Shamsudeen being born out of consummation between Mohammed and Valliamma.
In response to the latter contention, Shamsudeen reproduced an extract of the birth register maintained by the statutory authorities, which was considered to be a relevant fact reproduced in a public document as per the provision under Section 35 of the Indian Evidence Act, 1892. The said birth register established that Shamsudeen was infact born two months prior to Mohammed's death and not as claimed above.
The SC then examined the Shariat in detail regarding the types of marriages and their validity and held that there's a clear distinction between batil (void marriage) and fasid (irregular marriage) in Shariat. The SC propounded that the marriage between a Muslim man and a Hindu woman would be considered to be a fasid since it consists of an irregularity which can, however, be cured.
Upon such rectification, the marriage would be considered as sahih (valid marriage). The SC also held that irrespective of the fact whether the irregularity in fasid is resolved or not, the child born out of the wedlock will be a legitimate child and shall have the inheritance rights to the estate of his/ her father. The SC thus ruled that there was no reason to interfere with the ruling of the High Court and Shamsudeen was entitled to his share in the property of his father.
With regard to the question whether Shamsudeen was born before or after the death of Mohammed, the SC relied upon the birth register and observed that the date of birth of Shamsudeen, as specified in the birth register, has not been disputed and, hence, it is proved. The SC also examined the date of demise of Mohammed from the public record maintained by the Trivandrum Public Library. As a result, it was concluded that Shamsudeen was born prior to the death of Mohammed.
Is this a Reformative Decision?
In view of the findings of the SC in the present case, and as per the Muslim law already laid down, it is an inevitable conclusion that the child born out of a fasid or irregular marriage is a legitimate child and is entitled to the inheritance rights over the estate of his/ her father.
This judgement has given finality to the principle already laid down by a number of High Courts and that the inherent right to the property of children born from an irregular marriage, as the legal heirs of their ancestors, will stay protected from the possible malafide intention of their family members. Moreover, this judgement also attempts to recognise the rights of spouses of Muslim men, who are Hindu religion followers, by upholding their right to receive dower upon the death of their husband and striking down the argument that the marriage between a Muslim man and a Hindu woman should be considered as Batil or void marriage.
It remains to be seen whether this particular judgement by the SC would act as a catalyst in the already fueled up campaign led by the Muslim women demanding equal rights under Shariat as compared to the Muslim men. Grant of right to inherit the property by a widow from an irregular marriage would definitely be a step in the right direction which shall also lead to the development of much needed jurisprudence for the courts in India to declare and uphold the equality of rights of women under Shariat.
[1] Civil Appeal No. 5158 of 2013 in Mohammed Salim (D) through L.Rs and Ors. Vs. Shamsudeen (D) through L.Rs. and Ors.
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BN - 18122019
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