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Widow Remarry

My sister is 28 year old & has two kids one boy is 5 year old & girl is 4 year old. Her Husband passed away & now her in-laws are denying for their expenses & their property share. Can my sister marry again or after marriage she will loss the Custody of two kids & their property share?


Learning

 7 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     13 November 2021

she will not lose her children. But her deceased husband property will lost after remarry. 

minakshi bindhani   13 November 2021

As per your concerns!

The provisions of Section 2 of the  Hindu Widows' Re-marriage Act, 1856, states that Rights of a widow in deceased husband's property to cease on her remarriage –
All rights and interests which any widow may have in her deceased husband's property by way of maintenance, or by inheritance to her husband or his lineal successors, or by any will or testamentary disposition conferring upon her, without express permission to remarry, only a limited interest in such property, with no power of alienating the same, shall upon her re-marriage cease and determine as to if she had then died; and the next heirs of her deceased husband or other persons entitled to the property on her death, shall thereupon succeed.

However, The Hon’ble Bombay High Court in a recent judgment has ruled that a widow, even after she has remarried, has the rights over her former husband's properties. If the process of succession (the devolution of property in case a person dies without a will) has started before her second marriage. 

“The status of a woman as a widow must be there on the date when succession opens, even if she remarried at a later date. The wordings “if on the date the succession opens” does not find a place in Section 2 of the Hindu Widow’s Re-marriage Act, 1856. 

Section 8 of the Hindu Succession Act, 1956 which provides the general rules of succession in the case of males which reads as under:
The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter -
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased;

The Court ruled that provisions of the Hindu Succession Act, 1956 would prevail over the repealed Hindu Widows' Remarriage Act, 1856. Section 4 of the Hindu Succession Act 1956, has an overriding effect on all other enactments. There was no provision in the Hindu Succession Act, 1956 which was part material with section 2 of the Hindu Widows' Re-Marriage Act, 1856. The Court further observed the widow even after remarriage would qualify as Class I heir.

Hope it is helpful!
Regards
Minakshi Bindhani
1 Like

Kevin Moses Paul   14 November 2021

Well explained by Expert Ms Minakshi. Go through her response in order to understand the concept clearly.
1 Like

GetLegal India   18 January 2022

She won't be losing her children but surely the property after her second marriage. According to Widow Remarriage act, A widow can remarry and it's legal.

Megha   02 February 2022

Hi,

You query has 3 parts to it - please find the answers to each of them below:

Maintenance

Section 19 of the Hindu Adoptions And Maintenance Act, 1956 provides for maintenance of a widowed daughter-in-law by the father-in-law to the extent that she is unable to maintain herself.  The children are also entitled to maintenance.  This was also upheld by the Chattisgarh High Court in the case of Mithai Lal Vs Premlata Sahu.

Right over husband's property

A woman's right over her deceased husband's property depends upon whether the property was self acquired, jointly owned with the spouse, or was it an ancestral property.  In case of self acquired property, the property will devolve equally upon Class I heirs as per the provisions of the Hindu Succession Act.  In case the property is an ancestral property, the wife will have enjoyment rights over the property but not partition rights.  In case the property was owned jointly by the spouses, the wife's share will devolve entirely on her and the husband's share will be given to the extent of her share as per the provisions of the Hindu Succession Act mentioned above.  

Recently, Nagpur bench of Bombay High Court in the case of Jaiwantabai Wankhade v. Sunanda & Ors adjudged that a woman's right over her deceased husband's property is retained if the devolution of property takes places before the second marriage, in case the husband dies intestate. The court held that a woman's widow status must be present on the date of beginning the succession.  

Custody of children

Usually in the case of death of one parent, the custody passes on to the other surviving parents.  Although the grandparents may also file for custody of the child, courts primarily consider the welfare of the child before granting custody (Welfare Principle).  Further, Section 6 of the Hindu Minority and Guardianship Act, 1956 provides that custody of a minor child below the age of 5 shall ordinarily remian with the mother.  Thsi was also held in the case of Roxann Sharma v Arun Sharma.  

Best regards,
Megha

PALLABH HALDAR   03 February 2022

Yes she can re marry.

She won't be losing her children and will also be entitled for property share.

Sharing the Judgement points

The Nagpur bench of Bombay High Court has ruled that a widow, who later remarried, still has a right over the deceased husband’s assets if process of succession (the devolution of property in case a person dies without a will) has started before her second marriage.

“The status of a woman as a widow must be there on the date when succession opens, even if she remarried at a later date. The wordings “if on the date the succession opens” does not find place in Section 2 of the Hindu Widow’s Re-marriage Act, 1856. So, we have to respect intention of the legislators while incorporating these provisions in Section 24 of the Hindu Succession Act, 1956,” justice Shriram Modak said.

Regards

Advocate Pallabh Haldar

 

 

 

Sudhir Kumar, Advocate (Advocate)     03 February 2022

she will lose property share

 

but

 

her children will nto lose share even if she remarries.


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