The status of Concubine in Hindu law of succession

ORIGIN OF THE WORD CONCUBINE:

The word 'Concubine' comes from the Latin Verb 'CUBARE' which means 'to lie down'. The word developed in Middle English in the 13th Century.

MEANING :

Woman who, in some societies, lives and has sex with a man she is not married to, and has a lower social rank than his wife or wives.

In other words, a woman who cohabits with a man to whom she is not legally married, especially one regarded as socially or sexually subservient, mistress. In other way (among polygamous peoples) a secondary wife, usually  of inferior rank. In other angle (especially formerly in Muslim societies) a woman residing in a harem and kept, as by a Sultan, for Sexual purposes. In noun form it is 'Concubine' and in plural noun forms it is 'Concubines'.

DEFINITION OF CONCUBINE:

A Woman with whom a man Cohabits without being married, such as

• One having a recognized social status in a household below that a wife
• Mistress.

Examples from Literature :

• Abstain if possible from taking a Concubine.
• He had another son by a Greek Concubine, whom he committed to the guardianship of a certain great admiral.
• He might marry a secondary wife, or Concubine , because he was without offspring, but 'The Concubine' the Code lays down 'shall not rank with his wife'
• Presumably a man may have but one legitimate wife, and children by concubines must be registered as illegitimate.
• The difference between the position of the wife and that of the Concubines is marked.

DEVELOPMENT OF THE CONCEPT OF CONCUBINE:

Female slave who functioned as a secondary wife and surrogate mother. The Hebrew word for concubine ( Pileges [V.g.lyiP] ) is a non- Semantic loan word borrowed to refer to a phenomenon not indigenous to Israel. Babylonian and Assyrian law codes regulate primary and secondary marriages more specifically than do the  Old Testament Laws.

Exodus 21:7-10  has been appealed to as regulative of some aspects of 'Concubinage', but that only implicitly.

Concubines are mentioned primarily in early Israelite history during patriarchal times, the period of the judges, and the early monarchical though some later kings also had concubines. While Concubines did not have the status as wives, they were not to be mistreated

(Exodus 21:7-10) nor could they be violated by other males (Gen 35:22) with impunity (Gen 49:3-4). They seem to have received higher status if they bore sons, or at least they are remembered by name (Gen 21:10; 22:24; 30:3 ; 36: 12)

The sons of some Concubines were treated as co- heirs with the sons of wives. Was this facilitated by the wife accepting and naming the child her own, or was the father of 'adopting' the son required? Paucity of information prevents us from answering this  definitively. In at least one case the inheritance potential of the Concubine's son seems to  present a thereat to the primary wife  and her son ( Gen 21:10). Abraham eventually gives the full inheritance to Isaac, and only gives gifts to his Concubines' sons  (Gen 25:6)

The story of Judges 19-20 suggests that the terminology used of relationships in a regular marriage are also used in a Concubinage relationship. The man is called Concubine's husband ( 19:3 ; 20:4) and the woman's father is referred to as the man's father-in= law (19:9). Some evidence suggests that loyal wives (Concubines?) were inherited by succeeding kings (1 Sam 12:8). Thus approaching the royal concubines (1 Sam 16:21-22) or even requesting the king's female attendant for a wife

(1 Kings 2:13-22) can be understood as the act of one attempting to take the throne away from its designated occupant  (1 Kings 2: 22)

The practice of taking Concubines as 'wife' was used to provide a male heir for a barren wife (cf.Gen, 16, 35,36). In addition , the practice provided a social safety net poor families who could sell their daughters in dare times ( Exod 21:7-10; Judges 19:1). It seems plausible to suggest that the practice of taking concubines was perpetuated to meet the sexual desires of the males and  or to cement political alliances between nations. Nevertheless , the paucity of sufficient internal data requires dependence on comparative ancient Near Eastern evidence for these conclusions. Multiplying children through concubines would not normally complicate the inheritance lines, but would increase the available family workforce and the family wealth.

NB: Meaning of the word 'CONCUBINAGE':

'CONCUBINAGE' means 'The relationship between persons who are Cohabiting without the benefit of marriage - used especially in the Civil  Law of Louisiana; Compare Common Law Marriage . Under Louisiana Law 'Concubinage' does not give rise to any  rights in the parties to each other's property.  (Source : Merriam- Webster's Dictionary of Law)

SECTION 14.10.4. OF HINDU SUCCESSION ACT, 1956 REPRESENTS

'Hindu Female 'to Include a 'CONCUBINE' of  Hindu :

A permanently kept concubine of Hindu has been held entitled to maintenance under Hindu Law. (See, Nagubai Vs Mongbiba, AIR 1926 PC 73;  Preepa Bhagavat Vs Saridey Lakshmikantham, AIR 1940 Mad 511)

A Constitution Bench of Supreme Court in' Amireddi Raja Gopala Rao Vs Amireddi Sitharamamma,'  AIR 1956 SC 1970 , held that claim of an

'Avaruddha Stree or Woman kept in Concubinage for maintenance for her life time against estate of her paramour rested on express text of Mitakshara, Ch.2;, Vs 27 and 28 read with V.7 and approved by Full Bench decision of Bombay High court in 'Akku Prahlad vs Ganesh Prahlad', AIR 1945 Bom 217(FB), Where in it was held that a married woman who left her husband and lived with paramouras his permanently kept mistress could claim status of an Avaruddha Stree by remaining faithful to her paramour, though connection was adulterous, and was entitled to maintenance from estate of paramour so long as she preserved her sexual fidelity to him. There is no word ' Concubine' or kept Mistress ' in Section 14 of the Act, but it clearly reads that ' any female Hindu' -

Therefore, acquisition by a female Hindu of any property in any capacity in view of a pre-existing right would undoubtedly fall under Section  14 (1). Therefore , property , when gifted in favour of concubine by her paramour during his life time in lieu of her maintenance under estate in view of her pre-existing right when the Act came into force. (Singamsetty 'Narayana Vs Konatham Lakshmma' , AIR 2012 AP 54; 2012 ( 2) ALD 74 ( DB) .

In Prakash Vs Pushpa Vani 2004 AIHC 2976 ( AP); AIR 2004 NOC463(AP); 2004(3)ALD 858, the concubine liver with her paramour till his death - A house was purchased by him for her separate residence and she was allowed to reside in house for a considerably long time - He also executed a Will in the year 1959 to the effect that concubine is entitled to be in possession and enjoyment till her death and thereafter it should go to his adopted son - Considering that under  the Sastric Hindu Law , a concubine has pre existing right of maintenance against her paramour,  the High Court applied Section 14(1) of the Act and held that her limited right to maintenance got enlarged into an absolute estate and therefore subsequent Will executed by her in favour of Plaintiff was valid- It was further held that - 'Under Section 14 of the Act , the word used is 'Hindu Female' but not ' Hindu Widow' as used in Hindu Women's Right to Property Act- Under the Explanation to this section , any female Hindu  who acquired or possessed any property  either before or after the Commencement of the Act, is entitled to exercise the full ownership rights over the property and not as a limited owner. From the above explanation , it is made clear that any property acquired by female Hindu in lieu of Maintenance , apart form other forms of acquisition of property gets enlarged as an absolute estate.

Even if the property is given to a Hindu Female , in view of her pre existing right even after the Act came into force, it becomes absolute property notwithstanding the limits or restrictions contained in the Instrument.

In Mangama Vs MB Subbramappa Nayanimvaru, AIR 1994 AP 147, a Division Bench of the High Court of AP , while holding that right given to a Hindu Female as permanent mistress in a compromise Decree over a portion of house that was given to her as life estate falls under Section 14(1) of the Act, and gets enlarged into absolute estate, observed -

'The right of mistress to remain in possession of other portion of the house was integral with her right to claim life estate which was granted in recognition of her pre-existing right as the permanent kept mistress. Such a right acquired by her mistress to be in possession of the other portion fall within the ambit of subsection (1) of Section 14 of the Act and outside the purview of the exclusionary provision contained in sub- section (2)of Section 14. Merely because the compromise decree prescribed a restricted estate as regards the other portion there is no warrant to conclude that the other portion of the property fall within the ambit of Section (2).The right of flowing from compromise decree in favour of the mistress was not conferred for the first time nor was it without any pre-existing right. The compromise decree incorporates the pre-existing right of maintenance as the permanent kept mistress of late Hindu male, subsection (2) of Section 14 of the Act is therefore not attracted. As the mistress acquired the right to be in possession of the portion of the house before commencement of the Act, her right as a limited owner has enlarged into an absolute one under sub-section (1) of Section 14 of the Act'

Source: Hindu Succession Act