Custom v. Constitution: Why Punjab and Haryana High Court struck down a 40-year-old curb on a widow’s right to sell land

The Riwaj-i-Am of Gurgaon district, as codified by Wilson, contains explicit rules of customary law delineating the scope of a widow’s power of alienation.

“This Court has consistently adopted a pragmatic, progressive, and constitutionally aligned approach while examining customary restrictions on the rights of women in matters of alienation of property,” the court observed.

The order added that it has been unequivocally held that any custom which seeks to curtail, dilute, or abrogate the proprietary rights of a female exclusively based on religion, gender, or sex-based classification is inherently vulnerable to challenge and cannot withstand the constitutional mandate of equality enshrined under Articles 14 and 15 of the Constitution of India.

Findings

• The legal position stands crystallised beyond ambiguity that any custom or restriction which curtails the right of a female to alienate property inherited by her from her husband when such property is non-ancestral in nature is inherently discriminatory.
• A limitation founded solely upon gender or marital status cannot withstand the scrutiny of Article 14 of the Constitution of India, which mandates equality before law and prohibits arbitrary or unreasonable classifications.
• Any such fetter on a woman’s right to deal with her independently inherited property must be held to be constitutionally impermissible, legally unsustainable, and devoid of binding effect.
• Once the property is held to be non-ancestral, and the sale is shown to be for a legally recognised necessity of the owner, the transaction cannot be declared void merely for want of the consent of the collateral.

Background

• In 1982, a suit for declaration and possession regarding a land was instituted, arguing that the widow only held a “life interest” under Meo customary law and could not alienate the property without the consent of her husband’s collateral relatives.
• According to the collateral relatives of the deceased man, he was Meo by caste, whose succession and alienation rights were governed by the customary laws prevailing within the community.
• In accordance with such customs, a Meo widow is entitled only to a life interest in the property inherited from her father, irrespective of the nature of the estate.
• The collateral relatives challenged a registered sale deed executed by the widow in 1982.
• Following the death of a widow in 1984 during the proceedings, the daughter of the widow applied to be brought on record as her legal representative.
• The collateral relatives contended that the said sale was effected without the knowledge or consent and in contravention of his lawful expectancy, and that the transaction is consequently void and inoperative against his pre-existing rights to succeed to the property upon the death of his wife.
• They seek a declaration that the sale deed is null and void and that they are entitled to possession of the suit land.
• In an earlier litigation, the trial court conclusively determined that the suit land was non-ancestral in nature.
• Both the trial court and the first appellate court had originally decreed the suit in favor of the collateral relatives of the man.
• These courts relied on the Riwaj-i-Am of Gurgaon district, which stipulated that a widow’s interest is for life only and that she cannot alienate property, whether ancestral or self-acquired, without the consent of her husband’s relatives.
• The purchasers of the said land filed a plea against the trial court orders and challenged the legality, propriety, and correctness of the judgments.