HC: Can widow seek partition of husband's property?

MUMBAI: Can a widow ask for partition of her deceased husband's ancestral property for her share? The Bombay high court raised the question and observed that in the age of equality between the sexes and women having the same rights as a man, it was necessary to look into the law on the issue.

The court of Justice A B Chaudhari made the observation while hearing a suit filed by a widow Kalawati Karne, who had asked for partition and her share in her deceased husband's ancestral property.

"In the wake of the revolution for emancipation of women and for recognizing their rights as human beings equal to the males in respect of the properties in a Hindu family, I think depriving a widow simply because no other co-parcerners (inheritors) demand partition would clearly be destructive of the movement," said Justice A B Chaudhari.

"This court would like to consider the said larger question." The HC appointed advocate P N Joshi as an amicus curiae (friend of the court) to assist the court on the issue.

The court was hearing a suit filed by a widow Kalawati Karne, who had asked for partition and her share in her deceased husband's ancestral property.

Initially under the Hindu Women's Right to Property Act enacted in 1937, a woman could seek partition. However, subsequently Parliament passed the Hindu Succession Act in 1956, which sought to confer women's right to be the absolute owner of her property. This law, though, did not have any provision that gave a woman the right to seek partition. In fact, Section 23 of the Hindu Succession Act, disentitled a woman from asking for partition in respect of a dwelling house occupied by a joint family until the male heirs chose to seek partition of the property so as to divide their respective shares.

In an earlier judgment the HC had pointed out that the 1956 law had no provisions similar to the one in the 1937 Act. "The legislature in its wisdom has not thought it fit to continue this right in a woman," the high court had then said, while confirming the law that said that the widow had to wait till the male heirs of an Hindu Undivided Family (HUF) decided to partition the property to get her share.

With another bench of the HC deciding to have a relook into the issue, the matter is likely to be an important one for women's rights. Section 23 of the Hindu Succession Act, was passed in 2005 in order to bring in gender equality and address the various discriminatory provisions of the law that did not treat women as equals when it came to family property. The new law gave daughters the same rights as sons to reside in and to claim for partition of the parental ancestral property. But it made no mention of widow seeking her share in the ancestral property of her husband's family after his death.

The HC has scheduled the matter for further hearing on September 29.

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