Report No. 204

5. Father's Widow

Entry VI in Class II heirs specifies Father's widow along with brother's widow and is placed below grand father and grand mother of the deceased male coparcener dying intestate. It may be noted that the term father's widow' include 'mother' in its ambit. But 'mother' has already been included in Class-I heirs. Thus, father's widow in Class-II, Entry-VI, will logically refers to step-mother only and not real mother. However, the related Entry does not expressly say so.

It may be relevant to note Rule 1 and Rule 2 in Section 10 of HSA in this regard. According to Rule 1, the intestate's widow, or if there are more widows than one, all the widows together shall take one share. The Indian Law provides for monogamy and prohibits bigamy and polygamy as a general rule. The Hindu Marriage Act, 1955 too prescribes that neither party has a spouse living at the time of marriage as a condition for Hindu marriage.

Thus, there is remote possibility for some one to have more than one widows. The provisions of HSA seem to be more by way of abundant caution. Rule-2 in Section 10 provides that the surviving sons, daughters and mother of the intestate shall each take one share. Thus, it may be seen that if mother of the intestate takes her share as Class-I heir, then nothing will remain for the step mother, if any, to succeed.

The expression 'father's widow' therefore needs to be clarified as referring to step mother (s) and not real mother, i.e. father's widow other than real mother. But this entry may be upgraded to the level of Entry 2 and father's widow other than real mother be placed after 'brother and sister' in Entry 2 under class II in the Schedule.