Kerala HC Turns Down Widow’s Plea Challenging Constitutionality Of Sect. 33(b) Of Indian Succession Act Providing 50% Share Of Deceased Husband’s Property To His Kin [Read Judgment]

The provisions of the [Indian Succession] Act, 1925 have withstood the test of time without much amendment, the court said.

The Kerala High Court has turned down a widow’s plea challenging the constitutionality of Section 33(b) of the Indian Succession Act which provides 50 percent of deceased husband’s property to those who are kindred to him.

Philomina had approached the high court, contending that there is nobody to look after her at her old age and the entire property is entitled to be retained by her. She urged that the system prevalent in the Biblical era has to be changed and that the origin of the enactment is the desire of patriarchal social system to keep the wealth and fertility of the widow in same patriarchal line. It was also contended that in accordance with the Hindu Law of Succession, the wife can retain property of the husband as full owner.

The provision which was challenged reads as follows: “Save as provided by Section 33A, if he has left no lineal descendants, but has left persons who are kindred to him, one-half of his property shall belong to his widow, and the other half shall go to those who are kindred to him, in the order and according to the rules contained thereafter.”

Justice Shaji P Chaly observed that the law under challenge has survived the past 92 years and it was enacted by a competent authority within the territory of India before the commencement of the Constitution and it was not previously repealed.

It was further noted that Section 35 of the Act deals with the rights of a widower by which a husband surviving his wife has the same rights in respect of her property, if she dies intestate, as a widow has in respect of her husband's property, if he dies intestate.

The court observed: “The provisions of the Indian Succession Act, 1925 have taken care of various situations in respect of succession to properties including the properties of widow and widower, lineal descendants and any consequences occurring to the death of lineal descendants in accordance with the provisions contained under Part V, right from Sections 29 to 49 of the Act, 1925. On a reading of the provisions, it is categoric and clear that the provisions contained thereunder are competent enough to tackle various situations in respect of the division of the property so far as the widow and widower are concerned. The provisions contained under Section 33 of the Act, 1925 in respect of sharing of the property of a widow is para materia with Section 35 of the Act, 1925 where a widower has to undergo the same modality in respect of the property of a wife.”

The court also observed that Section 33(a) in respect to the sharing of the property by the widow is a benevolent provision, with the intention of protecting the interests of the widow. Dismissing the writ petition, the court also referred to many other provisions of the Act and observed that a clear balance is struck among the provisions.

“The case put forth by the petitioner that the provisions of Section 33 (b) of the Act, 1925 is arbitrary to the extent it stipulates 50 percent of the property of a deceased dying intestate to the kindred of the deceased rendering it unconstitutional, is unsustainable. Moreover, the provisions of the Act, 1925 have withstood the test of time without much amendment,” the court said.