The Union territory of Jammu and Kashmir has been a place of inter as well as intra territorial turmoil for a very long time. The conflict has affected the lives of thousands of Kashmiris and the current legal and political situation continues to haunt the lives of many. Among various issues being currently debated, certain important ones rarely come to light. One amongst the many is the inheritance rights status of half widows. This piece is an attempt to throw some light on this issue.

In this piece, the author makes a case for legislative and, more strongly, judicial recognition of the enforced disappearances of Kashmiri men, which would enable their half-widows to claim rights. The author discusses who a half widow is and what practical difficulties a half widow faces. Further, the author evaluates the inheritance laws currently in place and whether they accord any protection to the half widows.

Half Widow: The invisible victim

Half widow, as a term, has not been legally defined. It has been used to identify those women whose husbands have been abducted or who have been subjected to enforced disappearances. An enforced disappearance means secret abduction or arrest, or detention of a person by state or a third party with the support of the state with refusal to give out any information of the whereabouts of the person. Kashmiri men have allegedly been subjected to enforced disappearances by the Indian security forces to counter homegrown insurgency. As a result, their wives are in a never-ending limbo of not knowing whether their husbands are dead or alive. The publicly announced number of half-widows is between 2000-2500. However, it is believed that the actual number is much higher.

Sudden disappearance of the main breadwinner, drastically affects the life of their wives. The wives have to assume the new role of the breadwinner and take up the responsibility of the upkeep of their children. They get no closure as there is no certainty of their husband being dead or alive which takes a toll on their mental health. They generally do not receive any support from their families and have to face ostracism. Being vulnerable in such trying circumstances, they are also susceptible to sexual harassment, mostly by the other male members of the family who become predators.

Inheritance rights

Until the passage of Jammu and Kashmir Reorganisation Act, 2019, inheritance for Hindus was governed by Jammu and Kashmir Hindu Succession Act, 1956. It has now been repealed and Hindu Succession Act, 1956 has been extended to the Union Territory. The provision which governs the property of an intestate Hindu male is similar in both the statutes. Death being the kick start of succession, the act recognises ‘widow’ and not ‘half-widows’.

Muslims are governed by the Shariah law i.e., the Muslim personal law. According to the law, a widow with a child is entitled to one-eighth of her husband’s property while a childless widow is entitled to a one-fourth share. However, there is no recognition of a half widow.

Consequently, the only option left with women is to prove civil death. If a person is not heard for seven years, he/she is presumed to be dead. However, proving civil death is not the most practical and feasible option for the women. This is because they become the sole breadwinner in most of the cases which puts a lot of responsibilities on them. Sudden disappearances take a toll on their mental health which clouds their mental faculties and ability to think and act accordingly. Moreover, they are mostly not aware of the law and the legal procedure for proving civil death. The police are also negligent in handling such cases and do not lodge an FIR. Apart from these, they face numerous impediments in reaching the Police Stations like road blocks, distance, familial responsibilities etc.

In case of Muslims, consensus was reached amongst Islamic clerics that a half widow can remarry after a waiting period of four years. However, it has been observed that the declaration is not being actually followed as their in-laws do not want their son’s property to go out of the family.

The Way Forward

Neither the legislature nor the judiciary in India have recognised the problem of enforced disappearances. In this regard, help can be drawn from the countries which have already put in place some legislations to remedy the repercussions of enforced disappearances. These steps range from establishing commissions which grant or fasten the process of giving death certificates. This is helpful in cases where the half widows are ready to get their disappeared husbands declared dead. It may not be accepted if presented as the only option, as in certain cases, families do not want their loved ones to be declared dead.

Another step, a more prudent one, can be the creation of a new legal status for recognising disappeared individuals. In 1994, Argentina had enacted a legislation which described them as “absent by enforced disappearances”. Under the Act, the relatives seeking this status only have to establish the date of detention and the last time the person was heard of. Under this status, there is neither a presumption of death nor an acknowledgment of the same. This allows women to access the frozen bank accounts, have rights over the property and to remarry. In a similar vein, countries like Peru, Bosnia and Herzegovina, Chile have enacted legislations recognising enforced disappearances to give rights to their wives.

However, there exists a distinction between the case of Argentina and India. In Argentina, the disappearances were effectuated by a de facto military government and the act recognising them were passed by a democratically elected government. In India, these disappearances have been since 1990, irrespective of the government in power.  Ideally, this legislative remedy could be brought in if a repentant government comes to power and acknowledges these disappearances – until then, the judiciary could play a pivotal role.

India is a signatory to the International Convention for Protection of All Persons from Enforced Disappearance (ICPPED) but has not yet ratified it. Therefore, the terms of the convention are not technically binding on India. However, there are other conventions which impliedly outlaw enforced disappearances, which India has ratified. The International Covenant on Civil and Political Rights and United Nations Declaration of Human Rights bind India to respect and protect human rights of every citizen. The Indian judiciary can draw inspiration from neighbouring countries which also have not ratified ICPPED, but their judiciaries have not let this bar hinder them from delivering justice. They have upheld the obligations of ICPPED on the government.

In 2007, the Supreme Court of Nepal held that non-ratification of ICPPED should not impede embracing its principles as other ratified International Conventions pose an obligation to protect and respect the human rights of all citizens. Similarly, the Supreme Court of Pakistan held in favour of applying the provisions of ICPPED as enforced disappearances are crimes against humanity and hence violated the constitutional guarantee of right to life and liberty. The courts have given an expansive reading to the fundamental right of Right to life in their respective jurisdictions. This has enabled them to declare enforced disappearances as crimes against humanity and hence violative of their Constitution. In the same way, Article 20 and 21 can be invoked in Indian context.

Furthermore, in Vishakha v State of Rajasthan, the Supreme Court of India held that in the absence of domestic law, international conventions can be used in interpretation of rights if they are not inconsistent with the Fundamental Rights or any other domestic law. India being a signatory to ICPPED, the court can issue guidelines on enforced disappearances and inheritance rights of half-widows until a legislation to that affect is enacted. Moreover, many scholars have asserted that prohibition of enforced disappearances is a rule of customary international law. In Vellore Citizens Welfare Forum v Union of India, the court held that if some principle has been accepted as a part of customary international law and is not inconsistent with the domestic law, there would be no difficulty in accepting it as part of domestic law. A similar view was taken in PUCL v Union of India.

Given the political and armed conflict going on in Kashmir, various issues amongst inheritance rights of women in cases of disappearances is to be taken note of as soon as possible. Women bear the brunt of enforced disappearances invisibly with hardly any remedy in near sight. Indian Judiciary has been very active in terms of upholding the rights of its citizens and expanding the scope of Fundamental Rights. The deplorable condition of half widows needs to be taken cognizance of. Legislative recognition is a very unlikely step to happen. The relief should come from the judiciary. The victims will have to keep faith in the judiciary and the judiciary should deliver upto their expectations

The author would like to thank Divyansh Mishra for his fruitful insights.