In its order dated August 23, 2021, the Nagpur bench of the Bombay High Court has held that,
A re-married widow has a right to her deceased husband’s property, if she was not re-married when the husband passed away.
The term used by the Court to describe this situation was “the day the succession opens.”
Anil Wankhade (deceased husband) used to work with the Indian Railways as a pointsman. He passed away due to an accident on April 19, 1991. At the time of his death, his wife Sunanda was living separately from Anil due to disputes between them, however, was still not married to anyone else or divorced from Anil. The widow eventually remarried just a month after her husband’s death.
The present appeal was filed by Janiwantabai Wankhade (former mother-in-law) in the high court, against an order which allowed Sunanda to get all her former deceased husband’s retirement dues.
In 1993, Jaiwantabai laid claim to Anil’s retiral dues with the Railways and also informed them about Sunanda’s remarriage. But, the Railways passed an order in Sunanda’s favour.
Jaiwantabai challenged the order before a Civil Judge (Junior Division), who then passed an order saying both Jaiwantabai and Sunanda were entitled to the money but asked Jaiwantabai to file separate proceedings against Sunanda to recover her share.
Jaiwantabai then challenged this order before the Bombay High Court arguing that Sunanda did not have any rights to Anil’s retiral dues because of remarriage.
Bombay High Court Nagpur Bench
A single-judge bench ofJustice SM Modak, in an order passed last month, after discussing the provisions of Hindu Succession Act, 1956 and the Hindu Widows’ Re-marriage Act, 1856 (which was repealed in 1983), observed,
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.
The court thus ruled,
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.
Justice Modak observed that as per Section 24 of the Hindu Succession Act, 1956 the widow was disqualified from claiming a share in properties only after getting remarried, and not if she wasn’t married “on the date when succession opens,” which, in this case was April 19, 1991. The court observed and upheld Sunanda’s rights in her deceased husband’s retiral dues and said,
The status of the widow being re-married continuing to be widow must be on the date when succession opens.
The court, however, also asked her to refund 50 per cent of the money to her former mother-in-law as the Railways had paid the entire due to her.
(a) The respondent-defendant No.1 Sunanda w/o Ganesh Dode is directed to refund 50% of the amount received by her towards dues of deceased husband from respondent No.2 – Central Railway within a period of three months from today to the appellant.
(b) Respondent No.1 to refund the amount with 6% interest from the date of receipt by her till payment.
(c) Respondent No.1 (in her past name or new name) to file an affidavit before the trial Court within two months from today about exact amount received by her from respondent No.2.
(d) The trial Court to accept that affidavit and keep it on record.
(e) The appellant is at liberty to file execution proceeding.
(f) The executing Court is at liberty to execute the decree by passing appropriate orders.
(g) Respondent No.2 is also directed to file an affidavit before the trial Court describing the amount disbursed by them to respondent No.1 and under which head.
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