PHILOMINA Vs. GEORGE

JUDGEMENT

(1.) This writ petition is filed by a widow challenging the constitutional validity of Section 33(b) of the Indian Succession Act; 1925, which read thus: "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." Material facts for the disposal of the writ petition are as follows:-

(2.) The husband of the petitioner expired issueless on 16- 08-2010. The deceased husband is having 10 cents of property with a building situated in Survey Number 714/4A of Edappally North Village, which was purchased as per Sale Deed No. 283 of 1986 of SRO, Edappally. According to the petitioner, the said property was purchased in the name of the husband of the petitioner by selling the gold ornaments gifted during marriage and also with the money advanced by petitioner's parents and her brothers. Petitioner is unemployed, and there is no other source of income for managing the day-to-day affairs. First respondent is the brother of the deceased husband of the petitioner, who is having substantial income. First respondent has filed O.S. No. 170/2011 before the Subordinate Judges Court, Ernakulam, claiming 1/8th share of the property. Evident from Ext.P1 plaint, in which other persons kindred to deceased husband are also made parties along with the petitioner herein.

(3.) According to the petitioner, the Indian Succession Act, 1925 (hereinafter referred to as 'the Act, 1925') is a Pre- constitution enactment. Article 372 of the constitution of India does not make a pre-constitutional statutory provision to be constitutional. The constitutionality of the provisions has to be considered on the basis of changed circumstances and Part III of the constitution of India. It is also submitted 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. Due to urbanization and constitutional development, the system has become extinct, and therefore, there is no force at all. It is also submitted that the system prevalent in Biblical era has to be changed and there is nobody to look after the petitioner at her old age. Therefore, the entire property is entitled to be retained by the petitioner. It is also stated that, in accordance with the Hindu law of Succession, the wife can retain property of the husband as full owner. Therefore, according to the petitioner, Section 33 of the Act, 1925, to the extent, it provides 50 percent of the property to those who are kindred to the husband is clearly arbitrary, and therefore, violative of the provisions of Part III of the Constitution of India.