Law Commission Report
Hindu Widow Remarriage Act,1856
LAW COMMISSION OF INDIA EIGHTY FIRST REPORT Hindu Widows Re--marriage Act, 1856 GOVERNMENT OF INDIA MINISTRY OF LAW CHAIRMAN Justice P. V. Dixit. LAW COMMISSION GOVERNMENT or INDIA New Delhi. Dated, the 20thDecember, 1979. My dear Minister, 1 am herewith forwarding the Eighty-first Report of the Law Commission recommending the repeal of the Hindu Widows Remarriage Act, 1856. 2. The subject matter of the Act of 1856 is fully covered by four Acts enacted nearly a. hundred years later. They are : (1) The Hindu Marriage Act, 1955; (2) The Hindu Suc- cession Act, 1956; (3) The Hindu Minority and Guardianship Act, 1956; and (4) The Hindu Adoption and Maintenance Act, 1956. These Acts override all the rules of Hindu Law, custom and usage having the force of law in respect of the matters dealt with in those Acts; they also supersede any other law contained in any Central or State Legislature which is inconsistent with the provisions of those Acts. 3. After a careful consideration of all the provisions of the Act of 1856, the Commission has reached the conclusion that after the enactment of the four Acts just referred to, the Hindu Widows Remarriage Act, 1856 has become obsolete and is no longer of practical utility, and should therefore be repealed. The reasons in support of this conclusion, as well as a detailed analysis of the Act of 1856 have been given elaborately in the Report. 4. Appendix 'A' to the Report gives the historical back-ground in the context of which the Hindu Widows Remarriage Act came to be enacted in 1836. 5. The Commission wishes to place on record its high appreciation for the assistance rendered by Shri P. M. Bakshi in the preparation of the Report. The Commission's obli- gation to Shri V. V. Vazo, Additional Secretary, who prepared the interesting and useful Ap- pendix, cannot easily be exaggerated. With kind regards. Yours sincerely-_ Sd/ (P. V. DIXIT) Shri S. N. Kacker, Minister of Law, Justice & Company Affairs, New Delhi. 79-M/B(D)806MofLJ&CA--2 Chapter 6. 7. APPENDIX CONTENTS Topic Introductory Re-marriage, maintenance and succession . . Guardianship .. The childless widow Other rights, including adoption Ceremonies for, and guardianship in, marriage Conclusion Historical background of the Hindu Widows Re-marriage Act, 1856 .. .. .. .. .. Page 11 I5 CHAPTER 1 INTRODUCTORY 1.
1. This Report is concerned with the Hindu Widows Re-ma.r.'iage Act, 1856.1 Consi- Scope Of 1116' ,.deration of the Act.has been taken up by the Law Commission in pursuance of its terms of R°P°"-
reference, which, inter alia, empower the Commission to make recommendations for the removal of anomalies and ambiguities in the law. The Act of 1856 is a Central Act of general importance and application; several of its provisions may create in the minds of many persons anomalies and ambiguities, as will be evident from the succeeding paragraphs of this Report. In the interests of simplification of the law? and also on broader considerations of the removal of iniquitiesi', a review of the Act appears to be badly needed.
1 .2. As to the aspect of simplification of the law mentioned above4, it may be noted that Efl'ect of the Hindu Widows Re-marriage Act deals with diverse branches of Hindu law in the context Sub,-5°ql,1°m of re-marriage of widows, such as marriage, maintenance, succession and guardianship, see- 1°g'51at'°"' king to consolidate the law on the subject.
1.3. The Act was enacted in 1856. Nearly a hundred years later, four Acts were enac- Position ted, namely, the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu fgsflgggnfrgfm Minority & Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956---- 19g5§ and 1955. making fundamental and radical changes in the personal law of Hindus relating to marriage, succession, guardianship, adoption and maintenance. Notwithstanding the enactment of those Acts, the Hindu Widows Re-marriage Act, 1856 still continues to be on the statute book. The four Acts referred to above override all the rules of Hindu law, custom or usage having the force of law, in respect of matters dealt with in those Acts; they also supersede any other law contained in any central or state legislation which is inconsistent with the provisions of those Acts. Each section of the Act of 1856 therefore needs to be examined in order to as- certain how far the provisions of the Act have become either inconsistent or redundant and, therefore, need to be repealed.
1.4. Apart from this purely legal approach, there is also another broad consideration of Social a social character which is relevant. The provisions of the Act purport to impose on widowsJ'l15t1C'~'- certain disabilities (e.g. in relation to the right of inheritance of a childless widow)5, that can hardly be allowed to continue in the present structure of our society. It is, therefore, imperative that the Act should be reviewed and the law made harmonious and in consonance with social justice.
The broad question to be dealt with, then, is whether, having regard to the conside- rations set out above, the Act of 1856 should be repealed or whether its continuance in any form is necessary. We propose to examine the position in this regard with reference to each topic dealt with in the Act.
1.5. The following are the main topics dealt with by the Act :« Main topics Section Topic
1. .. .. Marriage of Hindu widows legalised.
2. .. .. The right of widows in the deceased husband's property to cease on her re-marriage.
3. . . . . Guardianship of children of the deceased husband on the re-marriage of the widow.
4. . . .. Nothing in this Act to render any childless widow capable of inheriting.
'Briefly, "the Act of 1856."
2Paras 1.2 and 1.3, infra.
"Para 1.4, infra.
'Para 1.1, supra.
'Chapter 4, infra.
-up Section 7, first para.
7, second para 7, third para (proviso)
7. fourth para Topic Saving of right of widow marrying, except as provided in sections 2 to 4.
Ceremonies constituting valid marriage to have efloct on widow':
marriage.
Consent to marriage of minor widow.
Punishment for abetting marriage made controry to this section. Effect of such marriage.
Consent to re-marriage of major widow.
CHAPTER 2 RE-MARRIAGE, MAINTENANCE AND SUCCESSION Act of 1856 2.1. The Act of 1856 is an Act removing all legal obstacles to the marriage of Hindu GeneSiS_ widows'. It was enacted because, as the first paragraph of the plxrimble to the Act stated in _l856, Hindu widows, with certain exceptions were, by reason of their having once married, held to be incapable of contracting a second valid marriage and the oflsprings of such widows by any second marriage were held to be illegitimate and incapable of inheriting property. The object of the Act, as marrated in the third paragraph of the preamble to the Act, was to "re-
lieve all such Hindus from this legal incapacity of which they complainedi and the removal of all legal obstacles to the marriage of Hindu \vidows".
2.2. The Act, therefore, first removed the disability under which Hindu widows had been S°°ll°." 1"' suffering and allowed them to rc-marry by providing in section 1, "no marriage contracted bet- Egggggi °f f ween Hindus shall be invalid and the issue of no such marriage shall be illegitimate, by reason widow age 0 of the woman having been "previously married or betrothed to another person who was dead at the time of such marriage, any custom and any interpretation of Hindu law to the contrary notwithstanding".
2.3. This section renders the re-marriage of a widow valid and secures the legitimacy S°_°'°i0I1 5(i),_ of children. But in view of section 5(i) of the Hindu Marriage Act, 1955 which provides ihnd" Mamage that a marriage may be solemnised between3 any two Hindus if neihter party has a spouse CL living at the time of the marriage, the special provision contained in section 1 of the Act of 1856 is not now necessary. Clause (1') of section 5 permits a widow to re-marry, as her spouse is not living at the time of marriage. Under this clause, all that is necessary is that the woman intending to marry or re-marry must not have a spouse living at the time of the marriage; it makes no difference whatsoever whether she was or she was not betrothed to another person at the time of the marriage. Section 1 of the Act of 1856 has thus become otiose and should be repealed.
2.4. Indeed, it has been impliedly repealed by section 4 of the Hindu Marriage Act, 1955 E3" °f 5°°'
- . tion 4, Hindu Wl11Ch runs thus .-- Marriage Act "4. Save as otherwise expressly provided in this Act, -- --«
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."
This section gives overriding application to the provisions of the Hindu Marriage Act and in respect of any of the matters dealt with in the said Act, it makes ineffective all existing laws whether in the shape of an enactment or otherwise which are inconsistent with the Act.
The necessary implication of section 4of the Hindu Marriage Act is that in effect Section 1 of the Act of 1856 has been repealed. An express repeal of the provision is, however, desirable.
2.5. Next, turning to section 2 of the Act of 1856, it is as follows :-- 5'5Cll°" 2"' Maintenance, "2. All rights and interests which any widow may have in her deceased l1usba11d's".'te5tat° s"°°°5' property by way of maintenance, or by inheritance to her husband or to his lineal succe- '°;{§'c';,,'§','}§,,'°'°""'° ssors, or by virtue of any will or testamentary disposition conferring upon her, without ex- ' press permission to re-marry, only a limited interest in such property, with no power of alienating the same, shall upon her re-marriage cease and determine as if she had then died; and the next heirs of her deceased husband, or other persons entitled to the pro- perty on her death, shall thereupon succeed to the same".
2.6. This section deals with (a) maintenance, (b) intestate succession, and (c) tcstan1en- P0S_iti0n as 10 tary succession. ma"1'9°113n°°-
'Cf. Peacock C. J. in Akora Suth v. .Barcanz', (1868) 2 B.L.R. 199, 205.
"See Appendix for historical background.
''Section 50), Hindu Marriage Act. 1955. 3 Efiect of section 2 on absolute interest inherited by widow.
Construction of section 2 as confined to limi-
ted estate.
Views of Mulla and Gupte.
As to maintenance, the widow on re-marriage loses all rights and interests she may have in her deceased husband's property by way of maintenance. The forfeiture of the widow's right to be maintained out of the estate of her first husband follows also from sections 19 and 22 of the Hindu Adoptions and Maintenance Act, 1956, which, in chapter 3, contains the law of maintenance applicable to Hindus'. Under section 19, a widow can claim maintenance from her father-in-law, but this obligation of the father-in-law ceases if the widow re-marries. Sec- tion 21 of that Act includes, in the definition of the word "dependants", a widow so long as she does not re-marry. Section 22 of that Act lays down rules relating to the right of depen- dants to be maintained, by the heirs of a deceased Hindu and others, who have inherited the estate of such deceased person. That Act also contains a provision, namely, section 4, giving overriding application to the provisions of the Act. The effect of section 4 is that it renders ineffective all existing laws in respect of any of the matters dealt with in the Hindu Adoptions and Maintenance Act, 1956. That being so, section 2 of the Act of 1856, in so far as it deals with the forfeiture of the/rights and interests which a widow may have in her deceased husband's property by way of maintenance, must give way to sections 19, 21 and 22 of the Maintenance Act, 1956. It now serves no useful purpose.
2.7. Section 2 of the Act of 1856 speaks also of the forfeiture, on the re~marriage of a widow, of her rights and interests in her husband's estate. A widow who succeeds to the pro- perty of her deceased husband under section 8 of the Hindu Succession Act, 1956, is under sec- tion l4 of that Act, full owner thereofz. There is no provision in the Hindu Succession Act enacting that on re-marriage a widow is divested of the estate inherited from her husband. If, therefore, section 2 of the Act of 1856 is read as applying to a widow having an absolute estate, it would be repugnant to the Hindu Succession Act3.
2.8. Several High Courts4 have taken the View that section 2 of the Act of 1856 has no application to an absolute estate.
Further, it has been held5 that once a widow succeeds to the property and acquires an absolute right under the Act of 1956, she cannot be divested of that right on her re-marriage.
2.9. Some differences have arisen amongst writers on the subject. The matter has been put thus in Mulla°.
"Re-marriage of a widow, is not now under the Act a ground for divesting the estate inherited by her from her husband. The Hindu Widows Re-marriage Act, 1856, though it legalised the re-marriage of a Hindu widow, had the effect of divesting the estate inheri- ted by her as a widow. By her second marriage she forfeited the interest taken by her in her husband's estate, and it passed to the next heirs of her husband as if she were dead (s. 2 of that Act). The rule laid down in that enactment cannot apply to a case covered by the present Act and a widow becomes full owner of the share7 or interest in her husband's property that may devolve on her by succession under the present section. Her re-marriage, which would evidently be after the "vesting in her of her share or interest on the death of the husband, would not operate to divest such share or interest. The Hindu Widows Re-marriage Act, 1856 is not replealed but section 4 of the present Act in effect abro- gates the operation of that Act in the case of a widow who succeeds to the property of her husband under the present section and section 14 has the effect of vesting in her that interest or share in her husband's property as full owner of the same."
,u...._.
'Sections 4, 19,l.2l and 22, Hindu Adoptions and Maintenance Act, 1956. 2(a) Punit/zavalli Ammal V. Ramalingam, A.I.R. 1970 S.C. 1730.
(b) Kasturi Devi V. Dy. Director of Consolidation, A.I.R. 1976 S.C. 2595. 3Pandurang Narayan V. Sindhu, A.l.R. 1971 Born. 413 (Chandrachud & Malvankar JJ.) 4(a) Ram Piari V. Board of Revenue, A.I.R. 1972 All. 492.
(b) Pandurang Narayan V. Sindhu, A.I.R. 1971 Bom. 413, 415, para 10.
(c) Sasanka Bhowmick V. Amiya, (1973) 78 C.W.N. 1011, 1020.
(d) Stmkaribala V. Asita Barani, A.I.R. 1977 Cal. 289, 292.
(e) Lakshmi Ammal V. Thangaavel Asari, A.I.R. 1957 Mad. 534.
(f) Jagdish Mahton V. Mohammad Elahi, A.I.R. 1973 Pat. 170.
(g) Smt. B/mri Bai V. Smt. Champi Bai, A.I.R. 1968 Raj. 139.
'Jagdis/z Mahtrm V. Mo/zammad Elrzhi, A.I.R. 1973 Pat. 170 (D.B.) °Mulla's Hindu Law (14th edition, 1974) page 869. I 'Emphasis added.
, .. m¢¢m 4,,' A different view has, however, been expressed by Guptel. According to the learned an- thor, section 2 of the Hindu Widows Re-marriage Act,l856 has not been abrogated by section4 of the Hindu Succession Act, 1956; that "although section 2 of the Hindu Widows Re-ma.r- riage Act, 1856 was drafted at a time when a widow succeeding to her husband's or to his lineal successor took only a limited estate, the language of that section is capable of applying to a widow having an absolute estate". He further states "it is however still possible to urge as a matter of construction of section 2 of the Hindu Widows Re-marriage Act that she would forfeit her estate, "though full, especially, as that Act has not been repealed2. If an estate is liable to forfeiture, it should make no difference whether the estate is converted into a full es- tate by section 14 or not. Any estate either absolute or limited may in law still be liable to forefeiture in certain circumstances and situations by an independent rule such as the rule in section 2 of the Hindu Widows Re-marriage Act which has not been repealed."
2.10. It is not necessary to enter into a controversy whether section 2 of the Act of 1856 Need T01' has been abrogated by the Hindu Succession Act3, or whether section 2 applies to a widow '°Pg:ln°2f having an absolute estate. If section 2 has not been abrogated and appliesto a widow having §,ega,d, an absolute estate, then a fortiori it must be expressly repealed. It cannot be allowed to stand rights of in- so as to give the anachronic result of the divestiture, on the re-marriage of a widow, of the es- h°1'it3fl°€- tate devolving on her by succession under the Hindu Succession Act, 1956. The repeal of the section would set at rest whatever conflict of opinion has arisen4 on the construction of the section and its applicability to a widow having an absolute estate.
2. 11. It may be noted that the repeal of section 2 as recommended above5 will in no way Section 24. affect the operation of section 24 of the Hindu Succession Act" which disqualifies the widow Hmd" S"°°°s'. of a predeceased son or the widow of a predeceased son of a predeceased son or the widow f1'§,I;dA°t °°nS"
of a brother, from succeeding to the property of an intestate as such a widow, if, on the date ' the succession opens, she has remarried. That provision will continue to apply to cases falling within its scope.
2.12. In regard to the application of section 2 to testamentary dispositions, we may note 559°' °f that section 30 of the Hindu Succession Act provides that any Hindu may dispose of, by will fgcgffienmgg or other testamentary disposition, any property in accordance with the provisions of the Indian disposition, Succession Act, 1925 or any other law for the time being in force applicable to Hindus. Dis- abilities in regard to such dispositions would therefore be governed by the Indian Succession Act7, or other law where applicable and unless a will specifically provides for forfeiture of a bequest on re-marriage, there would be no statutory forfeiture of the bequest. This part of section 2 of 1856 Act is, therefore, not in keeping with the Indian Succession Act and should be scrapped.
2.13. The foregoing discussion makes it clear that the whole of section 2 of the Hindu Repeal of Widows Re-marriage Act should be repealed. 5°°"°" 2 recommended.
1Gupte, Hindu Law of Succession (1972), pages 457-458.
"Emphasis added.
"Para 2.8, supra, See also Harabati v. Sasadhar, A.I.R. 1977 Orissa 142. 'See para 2.9, supra.
5Para 2.10 supra.
"Section 24, Hindu Succession Act, 1956.
7Cfo Section 74, Indian Succession Act, 1925.
79-M/B(D)806MofLJ&CA-3 Section 3- Guardianship of children.
Effect of section 3 and the Act of 1956.
No termination of widow's right.
Overlapping and confusion created by section 3--
Repeal.
CHAPTER 3 GUARDIANSHIP 3.1. This takes us to section 3 of the Act f 1856 h' h d 1 ' h ' ' children of the deceased husband of a Hindu widoow whoviie-11i'iarri:1s.S v'i'llie :0--f the
"3. Guardianship of children of deceased husband on the re-marriage of the widow----0n the re-marriage of a Hindu widow, if neither the widow nor any other person has been expressly constituted by the will or testamentary disposition of the deceased husband the guardian of his children the father or the mother or paternal grandmother, paternal grand- father of the deceased husband, or any male relative of the deceased husband may peti- tion the highest Court having original jurisdiction in civil cases in the place' where the deceased husband was domiciled at the time of his death for the appointment of some pm- per person to be guardian of the said children, and thereupon, it shall be lawful for the said Court, if it shall think fit, to appoint such guardian who when appointed shall be en- titled to have the care and custody of the said children, or of any of them during their mi- nority, in the place of their mother :-
"and in making such appointment the court shall be guided, so far as may be, by the laws and rules in force touching the guardianship of children who have neither father nor mother :--
"Provided that, when the said children have no property of their own sufiicicm for their support and proper education whilst minors, no such appointment shall be made otherwise than with the consent of the mother unless the proposed guardian shall have given security for the support and proper education of the children whilst minors."
3.2. In effect, section 3 empowers' the specified relatives to apply to the court for guardian- ship of the children of the deceased husband--not expressly confined to the children of the marriage--un1ess a testamentary guardian has been appointed. In this connection, it is neces- sary to point out that the matter is now fairly amply covered by the Hindu Minority and Guardianship Act2. Re-marriage of a female as such is no disqualification for guardianship under that Act.
3.3. According to judicial decisions, section 3 of the Act of 1856 does not expressly ter- minate the guardianship of the re-marrying wid0w3. It merely terminates her preferential right". The court has a discretion in relation to the appointment of the guardian of the children, though ordinarily, the court may appoint a person other than the widow5.
Incidentally, section 3 provides for the appointment of a guardian of the person of the minor children, but not of the property."
3.4. Having regard to the fact that the law has been codified in the Hindu Minority and Guardianship Act, 1956, sections 5(a) and 6,. the continued existence of section 3 of the Act of 1856 on the statute book creates confusion, which should be eliminated by deleting the section7"9.
' 3.1, ' .
;l2"}.rasectiorim61i2(;, Hindu Minority and Guardianship Act, 1956.
"Ganga v. Jlialo, (1911) I.L.R. 36 Cal. 862.
'Prem Kaur v. Harnam Singh, ALR. 1939 Lah. 125. _ "Ganga v. Jhalo, (1911) I.L.R. 36 Cal. 862, 872 873 (Mookcrjee J.).
"Rup Raut v. Basu Deb Raut, A.I.R. 1962 Pat. 436, 437, para 4. _ "Bakshi Ram Ladha Ram v. Shilla Devi, A.I.R. 1960 Pun]. 304 (D.K..iVl€th£1_|€1I1 J.) 'Kim: Parida v. Vaishnav, A.I.R. 1966 Orissa 60, 61, para 5 (G.K. Misra J.).6
CHAPTER 4 THE CHILDLESS Wmow
4.1. In section 4, the Act contains a provision which seeks to continue the assumed dls- 5C'°--1:>_'lid¢>lY1 4 ability of a childless widow, as to the right of inheritance. Such a provision appears strange wiéowfss today. The section reads as follows :--
"4. Nothing in this Act to render any childless widow capable of inheriting----Nothing in this Act contained shall be construed to render any widow who, at the time of the death of any person leaving any property, is a childless widow, capable of inheriting the whole or any share of such property, if before the passing of this Act, she would have been in- capable of inheriting the same by reason of her being a childless widow."
4.2. This provision is also likely to create misunderstanding as to the legal position of a Likelihood of childless widow. Even if any such disability was inforce under any school of uncodified or 09"?"-53°" in unamended Hindu law,1 the position under the Hindu Succession Act, 1956 is now different. 'S":cv:',6§'sfi0§",sc':
That Act recognises no such disability in relation to the right of inheritance. Where it confers ' such a right on a widow, that right is conferred without any distinction between childless widows and others. If a widow is, under that Act, entitled to succeed to the estate of any person--whether male or female---- and is not barred from doing so by reason of a disability specifically laid down in that Act2, then no other disability can be super-imposed, in view of the avowed object of that Act, namely, to "amend and codify" the law. On this groun alone, section 4 of the Act of 1856 requires to be repealed as inconsistent with the present law,
4. 3. The position on the subject before the Hindu Succession Act may be briefly dealt with, Position as a matter of interest. By the Bengal School of Hindu law, the daughter's right of succession b".f°'° the to property right being founded on her offering funeral oblations through her son, a daughter g(',"d",'\cSt"°°°s' who is a sonless widow was not entitled to inherit to her father.3 Presumably, section 4 of the n ' Act of 1856 has this disability in mind.
4.4. There are early Calcutta rulings 4'5 debarring barren daughters or widoweddaughters Position in without male issue from succeeding to their father". This rule seem to have been recognised even Bengal 5011001 in an Allahabad case7 (case relating to parties governed by the Dayabhaga), where the sons of a "Case '3."
deceased daughter. were preferred to a widowed childless daughter. b°f°'° Hmd"
4.5. Even in a caste in which widow re-marriage is allowed by custom, a childless widowed Re_mama daughter of a child-bearing age is not entitled in the Bengal school to succeed to her father's allowed big/e property along with the married daughter having a son, in the absence of any proof of custom Custom- entitling her to succeed under such circumstances".
4. 6. The view of text book writers" also appears to be that the disability in the Dayabhaga ~ law extends to a barren daughter or one who is not likely to have a male issue, or who is already :32?' '.'f,;§'§',',' a childless widow. Any argument that the widow might re-marry and have male issue is anti- ' cipated by section 4 ( of the Act of 1856), which prevents her from claiming the right of inheri-
tance10. But if the widow marries (after widowhood), before her father's death, section 5 would take away the disability."
'Para 4.4 and 4.5, infra.
'E.g. section 25, Hindu Succession Act, 1956.
"Dayabhaga, Chapter 11, section II, verses 3 and 15; Banerjee, Marriage and Stridhana (1923), pages 314
315. ' 'Benod Kumarce Debee v. Purdhan Gopal Sabee, (1865) 2 W.R.C.R. 176 (Calcutta).
5Radha Kishen V. Rajah Ram, (1866) 6 W.R.C.R. 147 (Calcutta).
"See also Mukanda V. Manmohini, (1920), 19 C.W.N. 472.
7Smt. Pramila v. Chandrasekhar, (1921) I.L.R. 43 All. 460 (Case under Dayabhaga system).
8Bin0dim' v. Sustha, (1920) I.L.R. 48 Cal. 300, 302.
°G0ur, Hindu Code (1938), page 940, para 2252, citing Mukanda v. Manmolzini, (192.0) 19 C. W. N. 472. 1°Banerjee, Marriage and Stridhana (1923), pages 314-315.
"For section 5, see Chapter 5, infra.7
Succession Act.8
Position of childless daughter in Mitakshara.
Recommendation to repeal section 4.
4. 7. While this was the position under the Dayabhaga, the Mitakshara law was different According to Gour,1 no such distinction (between various classes of daughters) exists in the Mitakshara.
4.8. The rule debarringachildless widow under the Dayabhaga law, to which we have made a reference above2, and which, as already stated3, section 4 has presumably in mind, has obviously been superseded by the Hindu Succession Act, 1956, which no longer recognises any disability based on childlessness, as discussed earlier4. In this situation section 4 of the Act of 1856_"creates confusion5. Accordingly, we recommend that section 4 should be repealed.
'Gour, Hindu Code (1938), page 940, para 2252.
"Para 4. 3, supra.
3Para 4.2, supra.
'Para 4.2, supra.
5Para 4.2, supra.
CHAPTER 5 OTHER RIGHTS, INCLUDING ADOPTION 5.1. Having dealt with the disabilities which should arise or continue on re-marriage, section 5, the Act of 1856, in section 5, saves certain rights, in these terms :~
"5. Saving of rights of widow marrying, except as provided in sections 2 to 4. Except as in three preceding sections is provided, a widow shall not by reason of her re-marriage forfeit any property or any right to which she would otherwise be entitled : and every widow who has re-married shall have the same rights of inheritance as she would have had, had such marriage been her first marriage."
5.2. It is really this section which reflects in direct terms the central theme of the Act1-- Analysis Of "to remove all legal obstacles to re-marriage". The section can be divided into two parts. The 5e°"°" 5~ earlier half, which ends with the words "to which she would otherwise be entitled", is expressed in general terms, so as to bar the forfeiture of "any property or any right", except as otherwise provided in sections 2--4. By way of illustration of a right which remains unaffected by sections 2--4, we may refer to the position of the widow vis--a-vis her right to inherit to the estate of a son by her first marriage who died after the widow's re--marriage. By her re-marriage, the widow does not lose her rights to succeed thereafter to her son or other lineal successor of her husbandz.
It was not the intention of the legislature to deprive a Hindu widow, upon her re-marriage, of any right or interest which she had not at the time of her re-marriage. The argument that the widow (mother) on her re-marriage was "civilly dead" has also been specifically rejected in one of the Bombay cases 3 on the subject'. At the time of re-marriage, she had no interest in her husband's property.
5.3. With reference to this part of section 5, it may be stated that legislation amending Effect of and codifying the law on various topics of Hindu law would seem to cover a large number of Subseqvent rights in relation to property (such as, rights to inheritance and maintenance) and other rights leg'-°"at'°"' (such as, rights of adoption and guardianship). In regard to matters governed by such legis- ration section 5 serves no useful purpose.
The question then arises whether there is any "right or property" which falls outside the ambit of such legislation----in other words, whether there is any "right or property" which is still governed by the earlier half of section 5 of the Act of 1856. If so, it becomes legitimate, as a second step, to consider whether, but for section 5 the widow would (by re-marriage) forfeit that property or that right.
5.4. It appears to us that the subsequent codifying legislation on various topics of personal Section 5, law governing Hindus--namely, succession', maintenance", marriage7, guardianship" and earlier half. adoption"----covers all the conceivable "property or right" relevant in the context of personal '°d""d'""' law. Section 5, earlier half, seeks to ensure that there shall be no forfeiture of "any property or any right" by reason of re-marriage except as provided by sections 2, 3 and 4. On a scrutiny of the various topics falling within the field of personal law, we have not been able to find any uncodified topic of Hindu law in regard to which such a rule as is contemplated by section 5 (i.e. a rule of forfeiture of "any property or right" on the re-marriage of a widow) can be said to survive at the present day. In view of this position, the earlier half of section 5 should be repealed as redundant.
'Para 2.1 supra.
2(a) Akara Suth v. Boreani, (1868) 2 Bengal Law Reports 199 205 206 (Peacoclc'C.J. & JacksonJ.).
(b) Clzamar Haru Dalmal v. Kas/zi, (1902; I.L.R. 26 Born. 388.
(c) Basappa v. Ragava, (1904) I.L.R. 29 Born. 91.
((1') Lakshmanu Sasamallo V. Siva Sasamallavani, (1905) I.L.R, 28 Mad. 425, 427.
3Btzsapp(1 v. Ragava, (1904) I.L.R. 29 Born. 91 93.
'See also Mantorabai v. Paretanbai, A.l.R. 1972 M.P. 145.
5Chapter 2, supra.
"Chapter 2, supra.
7Chapter 2, supra.
"Chapter 3, supra.
"See sections 7, 8, 9 and 14(c), Hindu Adoptions and Mainte nance Act. 1955 and para 5.5, infra.9 10
A doption.
Section 5, latter half also redundant.
Section 5 to be repealed.
a_ Hindu widow to give or to take in adoption is now exclusively governed by the Hindu Ad op- tions and Maintenance Act', and there can, at the present day, be no question of relying on sec. tion 5 of the Act of 1856 for determining questions as to that right in the context of re--marriage .
isposes of the earlier half of section 5. The latter half of section 5 relates more . t . .
codified in the Hindu Succession Act, implicitly recognises this proposition 2 and recognises no distinction as regards the rights of inheritance of a wife (widow), whether it is her first marriage or not. Thus, section 5, latter half is also now redundant. Even if the words "every widow who has remarried" can aptly apply to post-I856 remarriage, this part of the section I has now lokt all its utility.
5.7. In this position, the whole of section 5 needs to to be repealed.
'Sections 7, 8, 9 and l4(c), Hindu Adoptions and Maintenance Act, 1956. 'Chapter 2, supm.
CHAPTER 6 CEREMONIES FOR AND GUARDIANSHIP IN, MARRIAGE I. Ceremonies.
6. 1. Section 6 of the Act of 1856, in substance, provides that if the ceremonies performed Section 6_--- would have constituted a valid marriage for a Hindu woman, had she been a virgin, those same Ceremonies- ceremonies would constitute a valid marriage if the woman is a widow. The importance of the section is illustrated by an Oudh case'. A widow was married in the traditional Brahma form, but without the religious rites and ceremonies and the re-marriage was held not to have been established. There can be no valid marriage in any form even under this Act without a subs- tantial performance of the requisite religious ceremonies.
6.2. The subject of ceremonies for marriage is now covered by the Hindu Marriage Act? E§3ie':°ffindu Section 7 of the Hindu Marriage Act reads :-- Marriage Act "7. Ceremonies for a Hindu Marriage :--
(l) A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the mar-
riage becomes complete and binding when the seventh step is taken."
6. 3. In view of the above position, secton 6 of the Act of 1856 is superfluous, and according- Repeal Of ly, we recommend its repeal. :":c°:)'r'I'1'I'ng'nded_ II. Guardianship in marriage under section 7 and the Hindu law. 6.4. This takes us to section 7 of the Act of 1856. The section reads-- Section 7- Consent to marriage of minor widow;
"7. Consent to marriage of minor widow--If the widow re--marrying is a minor whose marriage has not been consummated, she shall not re-marry without the consent of her father, or if she has no father, of her paternal grand-father or if she has no such grand- father, of her mother or failing all these, of her elder brother, or failing also brothers, of her next male relative.
Punishment for abetting marriage made contrary to this section : All persons know- ingly "abetting a marriage made contrary to the provisions of this section shall be liable to imprisonment for any term not exceeding one year or to fine or to both.
Eflect of such marriages : proviso : And all marriages made contrary to the provi- sions of this section may be declared void by a Court of law; Provided, that in any question regarding the validity of a marriage made contrary to the provisions of this section, 511011 consent as is aforesaid shall be presumed until the contrary is proved, and that no such marriage shall be declared void after it has been consummated.
Consent to re-marriage of major widow : In the case of a widow who is of full. age or whose marriage has been consummated, her own consent shall be sutficicnt to constitute her re-marriage lawful and valid."
6.5. The position resulting from section 7 of the Act of 18563 can be thus ana.lysed-- a5I*:t;:iy<'sgd7
(a) A widow who is a minor and whose marriage has not been consummated can re-marry only with the consent of her guardian. This is enacted expressly in the first para- graph of the section.
'Ram Pearay v. Mst. Kailasha, A.I.R. 1930 Oudh 426, 428.
"Section 7, Hindu Marriage Act, 1955.
'Para 6.4, supra.11 12
Guardians under section 7.
CIU[1TC1l£ll1S according to Yajnavalkya.
Position in Bengal school.
Effect of marriage without consent of guardian.
' (b) widow who has attained majority can re-marry without the guardian's consent, irrespective _of the fact whether the marriage has been consummated or not. This seems to fplllow byd implication from section 7, there being no prohibition expressly enacted in t 1S regar .
_ (c) A widow whose marriage has been consummated is also competent to re--marry without such consent, even if a minor. This also seems to follow by implication from sectio n We shall deal later 1 with " minority" in the context of marriage.
6.6. So much as regards the circumstances in which a consent is, or is not, required for the rn2;:':';:ge of the widow. Where a guardian's consent is required, the guardians (in order of pre- terence) under section 7 of the Act of 1856 are 2 :---
1. Father, Father's father, Mother, Elder brother, Other male relatives.
.''':''5''!\' 6.7. The five persons mentioned in section 7 of the Act of 18565' uie the same as those enumerated by Yajnavalkyat. In Yajnavalkya, however, the mother is placed at the end of the list, while, in section 7, she appear in the middle. Yajnavall<ya5, whose text is adopted in the Mitakshara, and is followed in all the schools 6 except the Gauriya, declares :7 "The father, paternal-grandfather, brother, kinsmen (Sakulya) and mother, being of sound mind, are the persons to give away a damsel ----the latter respectively on failure of the preceding".
6.8. As to the Bengal School, Raghunandanaa, the leading authority of that School on the subject of marriage, has by a comparison of the above text of Yajnavalkya with the texts of two other sages, Vishnu and Narada, deduced the order of guardianship, which is the law in Bengal, and which may be stated thus 9 "The father, paternal-grand father, brother, sakulya, maternal grandfather, maternal uncle, and mother, if of sound mind, are entitled in succession to give a girl in marriage."
6.9. It should be pointed out, however, that a marriage performed without the consent of the guardian may yet be valid on the doctrine of factum valet. The following observations in a Bombay case by Sargent C.J. are pertinent 1° :--
"The consent of parents and guardians as a condition precedent of the validity of marriage before the parties have arrived at a certain age is required by the law of most European countries. But the intention has been always expressed in the clearest language so as to admit of no doubt. The invalidity of the marriage of a male under twenty-five without consent of parents is, by French law, provided for by express words declaring that such a male is 'incapable of marrying' without consent : see Code Napolean. And, again, again, Lord Hardwicke's Act in England, which was passed in a gr eat measure to prevent the marriage of minors without the consent of parents or guardians, declares that the marriage of persons wilfully inter-married without the license from a person having au- thority to, grant the same (the grant of which is forbidden to minors without such consent of parents and guardians), is null and void. No such language, (as we have already pointed out), is to be found in the Hindu texts, and without it both authority and reason require that the marriage should be supported on the principle of factum valet."
'Para 6.10, infra.
"Para 6 .4, supra.
"Para 6.6, supra.
'Yajnavalkya--(Father, Father's father, Brother, other male relatives, mother). 'Yajnavalkya, I, 63 : 28 e.
°Banerjee, Marriage and Stridhana (1923), pages 48-49.
7See also Gour, Hindu Code (1938), page 117, para 357.
Sudvahatattwa, Institutes, Vol. 2, page 70.
"Banerjee, Marriage and Stridhana (1923), pages 48-49.
"'KhushaI Chand Lal Chand v. Bar' Mam', (1886), 1.L.R. ll Bom. 247, 256.13
6. 10. The position as to 'minority' in the context of marriag may be briefly stated with A e of mania c reference to the period before the passing of the Hindu Marriage Act, 1955. The liidian Majority ungder Hindu g Act,' did not "affect the capacity of any person to act in the matter of marriage, dower, divorce law- and adoption". 3 The niatter had, therefore, to be considered with reference to the principles of Hindu law.
In Hindu law, the age of majority is attained on completion of the 16th year (15th year in the Bengal scliool)' and persons below that age cannot be married, except through their guard- dians whose right ri:s'rs upon the text of Yajnavalkya already quoted. 4 Thus, under Hindu law, a girl could not marry without the guardian's consent before attaining the age of 16.
III. Position under the Hindu Marriage Act, 1955.
6.11. This position survived upto 1955. Under the Hindu Marriage Act, 1955 (as enacted Position under originally)," where the bride has not completed the age of eighteen years, the consent of her thc AC' °f. . guardian in marriage, if any, was provided for. The list of guardians was given in the Act. I1u9if§,§1;'(;'§é'
6. 12. Some questions had arisen as to the position of the father-in-law, vis-a-vis re-inarriage P0Siti0_n 0f of the widowed dz-.rrglitor'-in-law. In an Allahabad case," the father-in--law was regarded as com- f'"he"""'1"W petent to give the widow in marriage. 7 In View of the present position under the Hindu Marriage mOrhe,_,n_1aw act as aii1endcd,"' it is unnecessary to enter upon any close examination of this view. ' ' It may, however, be stated that even before the passing of the Act of 1955, the Lahore High Court" had held that neither under the Hindu law nor under the Act of 1856 does the mother- in-law possess the right to give away in marriage her widowed daughter-in--law (the widowed daughter'-in-law in that case was below 16). It was observed in that case that section 7 of the Act of 1856 (even ii' applicable to the case) did not mention the mother--in-law. The texts on the subject "U3 of Hindu law were noted, as also the English law", but these texts also did not men- tion the inotlier-in-law as one of the guardians for the marriage of a widow.
6.13. While this was the position under the Hindu Marriage Act, 1955 as originally en- Position under acted, it may be pointed out that under that Act as amended in l978,"only a girl above the age the Hindu of eighteen can legally marry and the question of obtaining the consent of the guardian for Mamage Ac' . . .- , - - - - as a nded ' her marriage cannot now arise, whether the girl is unmarried or a widow. 1978r_n° "1 By the Schedule to the Child Marriage Restraint (Amendment) Act, l978,15s3ction 5(r'z'i) of the Hindu Marriage Act was amended to substitute for "eighteen years" (for the bridegroom) and "i'if;een years" (for the bride), the words "twenty-one years" and "eighteen years" respec- tively. As a consequential change, section 5 (vi) and section 6, which were concerned with guar- dianship in marriage, were omitted by the same amending Act.
6.14. In this pnsltioll, section 7 of the Act of 1856 has become completely obsolete and Section 7 to should be repealed. be repealed.
1G;»iir, Hindu (3>;l:(l938),p;1ge 117, para 357.
"Section 2(0). Indian Majority Act 1873.
"Mulla Hindu Law (1974), pug: 511, para 433.
'Para 6.5 srlpru.
agection 5(vi) Hindu Marriage Act, 1955, read with section 6 (as originally enactei).
"Paras Ram V, The State, A.l.R. 1960 All. 749.
739.3 Cmicigrn by Derrctt in (1961) 63 Born. L.R. Journal), pages 1 lo 4 and article by Lax nan Prasad in A.l.R. 1960 Journal pages 92 to 94.
3Para 6'13, I'.'IfH'/-
"San! Ram v. The Crown, (1929) I.L.R. 11 Lahore 178 (Tekchand & Agha Hyder JJ.) 10Yajnavalkya 1,63-64.
"Vishnu XXIV, 38-39.
"Narada X11, 20-.71.
"Section 16, Re-mi'1rriag.: Act, 1823 (Eng.).
"Central Act 2 of 1978.
"Central Act 2 of 1978.
Recommendation to repeal.
CHAPTER 7 CONCLU FION In the light of the preceding paragraphs, we recommend repeal of the entire Hindu Widows Re-marriage Act, 1856 (15 of 1856). It is needless to add that section 6 of the General Clauses Act,' 1897 will apply to such repeal so as to save rights already vested and to regulate the posi- tion on other matters dealt with in that section.
Sd./ P.V. Dixit Chairman S.N. Sl'1dl1l\"c1l' Member Gangeshwar Prasad Member P.M. Bakshi Member-Secretary 14th December, 1979.
'Section 6, Gemral Clauses Act, 1897.
,_ ,._.__,___ _?_._.T__ _. \ APPENDIX Historical background of the Hindu Widows Re-marriage Act, 1856.1 I. Introductory.
The subject of removing legal obstacles to the performance of marriage of Hindu widows Indian.L'aw came to be noticed--though in a peripheral way---by the I ndian Law Commissioners who with C°mm'55'°"°1'5 Lord Maculay in the lead were premarily seized of the problem of codifying the penal laws 1837' of India. The Sudder Ni7amut Adawlut court in the north-western provinces informed the Law Commissioners that child murder was a prevalent crime in the provinces under their juris- diction and had recommended that the endeavour of a woman to conceal the birth of her dead child by secretly disposing of its body should be made a misdemeanour.
The court wanted the law which was in force under the jurisdiction of the Supreme Court of each Presidency and the Recorders' court in the Straits to be made applicable to the posses- sions of the East Indian Company.
II. Indian Law Commissioners.
Discovering the casual connection between the prohibition against widow re-marriage and infanticide, the Indian Law Commissioners by their letter dated 4th July, 1837 apprised the Government of India that much of this crime may be due to the cruel law which prevented Hindu widows from contracting a second legal marriage. The Commissioners were sensible that a mere alteration in the law would immediately and directly have little effect towards remedying the evil, but were not without expectation that an alteration of the law would induce an alteration of thinking in this matter. They felt that such a law would do more towards repressing child murder than could be done by the most severe penal laws.
The Indian Law Commissioners, by their letter dated 30th June, 1837, had sought? the Opinions of opinions of the Sudder courts of Calcutta, Allahabad, Madras and Bombay as to whether there S"dd°' °°'-""'- would be any objections to a law which would authorise the re-marriage of Hindu widows.
In reply, the Calcutta Sudder Court (consisting of two judges, one temporary judge, two oflicial judges and one officiating temporary judge), had no hesitation in stating it as its unqualified opinion that a law of the nature contemplated could not be passed without a direct and open violation of the pledged faith of the Government. The court felt that "the Hindus did not re- gard marriage as a mere civil contract, and in all its stages from the betrothment in infancy to its final consummation, the ceremonies consisted of a series of observances altogether religious; and it was distinctly clear by their shastras, and universally believed by them, that the re- marriage of a widow involved guilt and disgrace on earth and exclusion from heaven. The court referred to Mr. Colebrook's Digest of the Hindu Law in support of its views and regretted that what was so desirable should be so difficult of attainment. The Sudder Diwani Adawlut of North-west Provinces (consisting of four judges) also opposed the proposed measure on simi- lar grounds and added that it was likely to be misunderstood and perverted and might give to a very great and general dissatisfaction without being attended with any counter-balancing or commensurate advantage.
The judges of the Madras Sudder and Faujdaree courts followed suit, on the ground that the H ndus of the regenerate classes would look upon such a measure as an attempt to confound them with the inferior and outcaste tribes, (who admitted of second marriages by widows). They warned that such an Act would not only prove a dead letter, but would also unite the whole of the superior classes in maintaining with increased bigotry the established custom against which the proposed measure would be levelled and thus strengthen their jealousy in keeping, up, un- impaired, the distinctions which separated them from the lower orders.3
'Based on National Archives File relating to Act 15 of 1856, Vol. 1 and 2. 'Indian Law Commissioners letter dated 30th June, l'837.16
III. Petitions for reform and draft Bill.
18 years thereafter, Eshwarchundra Sharum, who later on came to be known as Ishwar- Ischwarchandra's chandra Vidyasagar, signed a petition on 4th October, 1855 from the Sanscrit College, Calcutta p°""°". and along with a thousand others, deploring the evil of the custom by which the marriage of widows dr amongst Hindus was prohibited by law and urged the removal of the legal obstacles as the cus- tom had been judicially recognised by the courts of Her Majesty and East Indian Company. Eshwarchundra Sharuin also appended a draft bill 'to remove all legal obstacles to the inarriagc of Hindu widows".
The reaction to Eshwarchandra's proposal holds a mirror to the sociological conditions of the Hindu society of that period.
Some inhabitants of Barasot and its neighbourhood referred to Srijoot Ishwarchundra Reactions to Vidyasagar as one "the most patriotic and the learned-in--Hindu law". While certain inhabi-.th° B1"
tants of Zillah Tippra in their petition dated 5th April, 1856 after re-iterating the assurances of Government regulation of 1793 asserted that the number of Hindus who have asked Govern- ment to bring into force the proposed law "belonged to some tribe" who preferred to follow their own opinion to the dictates of religious law.
The Bralimin_s of 'Poona by their petition dated 27th February, 1856 opposed the measure and expressed their opinion that those who are in favour of the measure must not be Hindus.
The Poona petition throws light on the manner in which signatures were collected to the memorials to be presented to Government. It appear that one "Aba Bhusari" (a grocer) went round to collect the signatures and in token of having effected the collection, wrote his name at the left-hand top corner. Some of the overly circumspect signatories superscribed an endorse- ment, "signed as being against re--marriage" just below their signature, to ensure that the sig- nature pages were not attached to a memorial on some other subject. It is remarkable that the signature of collector "Aba Bhusari" has not appended his signature in the general catenna of signatures, probably because, not being a Brahmin, he had no need of any such law. Though the signatures are mainly in Devenagari and modi script, an occasional Telugu signature appears and the use of the Pei sian word "Bin" for "son of" was also common. The signatures on petitions emanating from Bengal were mostly in English or in Bengali, but an occasional "Shri Ram Dayal Tark Vachaspati" in Devnagari also appears.
The inhabitants of Zillah Maimansingh characterized Vidyasagar's move as one from a "very thoughtless and improvident youngman who would sulfer unlimited troubles which God knows well only".
784 petitioners, being residents of Upper country sojourning in Calcutta, referred to the Residents of reign of the late Nawab when their legal usages were being destroyed and thanked the Kingdom Upper country. of the Honourable Company wliereunder they were enjoying great safety. The petitioners ex- pressed the apprehension that if the proposed Bill became law, it would bring back the same state of affairs as under the Nawab, namely, "whosoever may wish will run away with any one's wife". . Same was the grievance of certain inhabitants of Chittagong who were affraid that women would run away with their paramours (for whom they used the word 'gallant') while the inhabitants of Zillah Chattayram in their petition dated 18th July, 1856 predicted that "it will never be an uncommon thing for a youthful handsome woman of a wicked mind to agree with the allurements of youthful wealthy debauchees and accordingly attempt the lives of their poor and ugly husbands".
991 persons calling themselves "professors of the Hindu law, inhabitants of Nuddea Tre- pandit; bani Bhatparrah, Bansbarrah and other places", "being apprised tharone Eshwarchandra Vi- dyasagar, a modern Pandit, has lately in conjunction with a few young men of the rising class, had sought legislation to legalise re-marriage of Hindu widows", petitioned on 29th February 1856 to the Legislative Council, drawing attention of the Council to the injuctions of the shas- tras against such marriages. They quoted the Veda, the Code of Manu, Mahabharata first book, Aditya Purana, Ratnakura, Niranya Shindhoo, Hemadri and Madan Parijata. The last three authorities contained similar edicts: " the marriage of widow, the gift of a larger portion to the eldest brother, the sacrifice of a bull, the appointment of a man to beget a son on the widow of his brother and the carrying of an earthen pot as the token of ascetic, these five are prohibited in the Kaliyuga".
The piece do resistance came as a petition on a coriaceous parchment paper of the size 3">< 2;-"--signed by Raja Radhakant Bahadoor, Raja Kalikrishna Bahadoor, Raja Apurva Krishna Bahadoor, Raja. Kamal Krishna Bahadoor, Raja Narendra Krishna Bahadoor and others opposing U16 Blll.
17IV. Publication of the Bill After the Bill "to remove all legal obstacles to the marriage of Hindu widows" was pub P"b"°afi9"
lished to elicit public opinion, 51 petitions were presented in relation to the Bill; of which, 23,- ff the B!"
signed by 5191 persons were in favour of the principle of the proposed measure and 28 signed o(;)IjnI¥)1ft1)l!c by 51,746 persons were against the measure. One petition in support of the measure was pre-- I sented by the members of the Calcutta Missionary Conference.
With an opposition in the proportion of ten to one, the Bill would never have secured a Recognition place on the statute book in a democratic legislative process. But the statement of objects Of the right and reasons prepared by Mr. Grant on 17th November, 1854 underscored the fact that the ob- of frqedom °' ject of the Bill was to give the petitioners and all who agreed with them and all who thereafter §i'eiiSe°rif§§°Kr may agree with them, the relief prayed for, without interfering with any other people. Mr. Objects and Grant referred to a well-known Hindu doctrine that a Hindu widow who does not turn as a Re"5°"5- suttee (which act no longer could be committed in India) was bound to a life of the most pain- ful bodily mortification. Those who agreed with the petitioners allowed the reputable alterna- tive of re-marriage. Those who did not, allowed of no reputable alternative nor did the law as administered by the courts allow a reputable alternative to either class. Mr. Grant agrued that if the learning, reason and conscience of single Hindu father directed him to save his little child from life-long misery or vice, the law of the country should not stand in his way. This marks the beginning of recognition of the right to freedom of conscience, the matrix, the in- dispensable condition of other manifestations of freedom of an individual.
The original Bill, as prepared and brought in by Mr. Grant in the Legislative Counci1,1 Legislative which was read a first time on the 17th November, 1855 contained only the first two sections hismry' of the Act. The first section saved the validity of re-marriage. The second section ran as ond under :
All rights and interests which any widow may by law have in her deceased husband's estate, either by way of maintenance or by inheritance, shall, upon her second marriage cease and determined as if she had then died; and the next heirs of such deceased husband then living, shall thereupon succeed to such estate.
Provided that nothing in this section shall affect the rights and interests of any widow in any estate or other property to which she may have succeeded by inheritance otherwise than through her deceased husband, or to which she may have become entitled under the will of her deceased husband, or in any estate or other property which she may possess as Stridhun, or which she may have herself acquired either during the lifetime of her de- ceased husband, or after his death".
V. Select Committee The Select Committee to which the Bill was referred, thought it right to provide for those Select cases in which the husband's estate, having first descended to the sons or grandsons, afterwards Committee. vested in the widow as heiress of the first taker. In these cases, the Committee thought, the second section? of the Bill might also apply, and they altered it accordingly. The Committee struck out the proviso to that section and secured the widow's rights in the property which she was not to forfeit on a second marriage more clearly by a separate section3.
Another objection raised was that Hindu rights of inheritance were closely connected with Inheritance. religious obligations and it was impossible that those inheriting under the proposed law could be recognised by a family holding to the contrary doctrine, they were incapable of performing religious obligations and it would be unjust to allow them to have rights of inheritance.
The protagonists of the Bill4 advanced two agruments in support of the measure. The first Conversion. was that when a Hindu widow became a Christian or a Mahomedan and then married, her civil rights under the [ex loci Act remained the same as before her conversion, but if, continuing to be a Hindu, she re-married, her rights would be curtailed. They argued that this was a grie- vous hardship inflicted on her for a conscientious adherence to her own religion.
'National Archives File_ pages 55-58 (Mr. Grant).
'For the second section, see supra.
'National Archives File, page 1119 et sea.
'Petition dated 15th January, 1856 (National Archives File, page 187).18
Unchastity.
Giving of a minor widow in re-marriage.
Forfeiture of rights upon re-marriage.
Secondly, they quoted the case of Doe Dem Saummoney Doses v. Nemvahum Doss,'(deci- ded under the Caste Disabilities Removal Act, 1850), for the proposition that if a Hindu widow led an immoral life, her rights in the property were not affected. Further, they proposed that instead of the usual Hindu form of marriage with vedic rites, a simple agreement and declara- tion beforea Registrar should be sufficient to constitute a valid marriage2.
The Select Committee dealt with this objection on the principle that the greater ought not to involve the lesser privilege. If a Hindu widow turned a Mahomedan and so repudiated the whole Hindu Code, it was admitted that by the law of the land she could contract a valid marriage and that her children by such marriage would be legitimate and would inherit the pro- perty of her Hindu ancestors. Nevertheless, if the same widow remained a Hindu, but adopted an interpretation of Hindu law which (though not the interpretation of the majority of Hindus) represented such interpretation of a very respectable minority (a minority which in point of principle alone was not inconsiderable), it was contended that the law of the land ought to make her incapable of contracting a valid marriage. This the Committee did not consider to be a tenable doctrine.
Incidentally, it may be noted that even though in. the year 1856 the learned Members of the Select Committee were clear in their minds that conversion from Hinduism did not operate as an exclusionary factor against the convert in the matter of inheritance, half a century later a Full Bench of the Madras High Court in Vitta T ayaramma V. Sivayya and others,3 by a majo- rity (Wallis C.J. and Oldfield J.) held that a Hindu widow who becomes a Mahomedan and marries a Mahomedan forfeits by the re-marriage her interest in her first husband's estate under the general principles of Hindu law. Wallis C. J. further held that the forfeiture is entailed by reason of section 2 of the Hindu Widows Re-niarriage Act, 1856. Seshagiri Aiyar J. dis- sented and was of the view that the rule of Hindu law that a widow who remarries and was thus not true to the bed of her deceased husband, could not inherit to his estate can be applied only when she is within the of Hindu law. Her remarriage after apostacy could not divest her of her right to inherit which subsisted in her favour at the date of her conversion to another religion.
To revertto the Select Committee, the Committee thought it necessary to provide specially for the giving away of a minor widow. In the case of a bride who was a minor, the giving away by a male relative or by a male of the same caste was under stood to be a necessary part of the ceremony of the marriage, but as a widow was considered to have left her father's family and to have become a member of the deceased husband's family doubt might be felt that as to the right of her relative to give her away, unless special provision on the subject was made; and a similar doubt might be felt as to the right of her deceased husband's family to give her away. Her own rights too, both whilst a minor and after coming of age, might be rather doubtful. One clause provided specially for all these points. The Committee proposed that where a widow was a minor, her own male relatives shall be the persons to give her away exactly as if she were unmarried and their consent shall be necessary to the validity of her marriage, and that if she be of age, her own consent shall be sufficient to constitute the marriage whether she be given away by any male relative or not. As her husband's family may have an interest in inducing a widow to remarry, the Committee thought it right, in the manner stated above, to render the consent of her own family necessary in the case of a minor widow. Under the Hindu law then obtaining, an unmarried girl of full age could give herself away and hence the Committee felt that a widow of full age should have the same power.
Sir Robert Hamilton, the Agent of the Governor General for Central India, suggested that a widow ought not to be allowed to retain property left by her deceased husband for life, by will made before the passing of the Act with remainder to_ the olfspring of the testator. The Select Committee felt that the principle of the second section of the. Bill was that a widow on her re-marriage should forfeit all that the law gives her' of the right in her deceased husband's estate, but that she should retain whatever she has acquired by way of gift whether thegift were testamentary or by act inter vivos. The reason for thisdistinction was that the very peculiar interest which the Hindu law of inheritance gave to a widow in her deceased husband's estate was really, if the texts were examined, intended to be no more than an interest durante viduitate that the conditions on which it is given to her were inconsistent with a second marriage and though she was entitled to the unrestricted possession of the estate, she could not, except in certain exceptional cases, alienate any part of it. Any absolute interest which she took by gift stood on a different footing. If the donor has attached no conditions to the gift--the Commit- tee felt--they were not to speculate on his motives or to ask whether he would or would not have made the gift conditional if he had foreseen the alteration of the law.
'Doe Dem Sa_ummonev Dasee v. Nemvchurn Dass, Bell &Tayler's Reports, Vol. 2, page 300 (Peel C.J.) Na. tional Archives File, page 188). _ _ _ 2Perition dated 15th January, 1856 (National Archives File, page 188}. 'Vina Tayaramma v. Sivayya and others, A.I.R. 1919 Mad. 854, 858, 859, 860.
In no case was the forfeiture intended to be a penalty or to operate as a restriction on a second marriage. It was imposed in the one case because it was a consequence of a condition which the law annexes to the estate. it was imposed in the other, because the legislature was under no obligation to create conditions on a gift which the donor has made unconditionally, but it often happened that by will a testator gave to his wife very much the same kind of in- terest as that which, if his heiress at law, she would take on an intestacy. He might sometimes vary the legal incidence of her estate, but still have it so as to be limited in duration and enjoy- ment and to give her no power of alienation. It seemed to the Committee that all these gifts which more or less partook of the nature of Hindu widow's estate of inheritance should be put on the same footing as the latter.
One of the objections raised was that widows after re-marriage would be incapable of adopt- Adoption. ing sons though enjoined to do so by their deceased husbands. The Committee observed that if a widow was duly authorised to adopt, she could do so before her second marriage and the power of re-marriage could not operate in the way of an inducement not to adopt an heir to her deceased husband because she cuts herself off from all such inheritance by re-marriage.
Another objection to the proposed bill was as follows :-- childless widow.
"If a Hindu dies leaving two daughters both of whom are widows, but the one has a son and the other no children, by the law of inheritance the son will be the sole heir of his maternal grandfather, but if the childless widow contracts a second marriage and has issue by her second husband, by the proposed law they would be entitled to equal shares of the property of their mother's father with the son of the widow who has not remarried", The Select Committee characterised the objection as ill-founded, because, if a Hindu died leaving neither male issue, nor a widow, but daughters, an unmarried daughter was entitled to take to the exclusion of the other daughters who had been married, whether they were child- less widows or had or were capable of having issue. In default of an unmarried daughter, daughters who had or were capable of having issue, should take. A daughter who was barren or a childless widow was altogether excluded.
Even though the petitioner's objection was thus overruled, the Select Committee found that the argument of the petitioners suggested a difliculty, namely, that being incapable of hav- ing lawful issue, a childless widowed daughter could not continue her father's line and was ex- cluded from inheritance. If the Act were to remain selent on the subject, it might thereafter be contended that cassante ratione ccssat lex. (The maxim as given in 'Latin for lawyers' reads : Cessante rativne legis, cessat ipsa lax. The reason of the law ceasing, the law itself ceases).
Though the Select Committee saw no positive injustice in such a conclusion, yet to avoid confusion thought it desirable to provide that no person who, by reason of her being a child- less widowed daughter on the death of any other person only, according to the existing law, be excluded from a share in property inheritable on the death of such other person, shall take any share in that property, because she might thereafter avail herself of the provisions of this law and shall become capable of having issue.
The Committee intended to exclude the case of a widowed daughter who had re-married Widowed during her father's lifetime, and felt that she should be allowed to stand on the same footing daughter Who as any other married daughter. '°""'""°S' The Judges of the Madras Court of Sudder Adawlut observed that the Hindu law did not Right to makc recognise in Hindus the right to make bequest by will and that the law of inheritance obtain- bfiquest ing amongst Hindus offered impediments to the recognition of titles under wills. For this reason, the judges thought that (whatever the practice of the courts may have been with re- gard to wills by Hindus) it was advisable that the provision of the Bill preserving to the widow who re-marries the right and interest in any estate or other property to which she might have become entitled under the will of her deceased husband should be omitted. The Select Com- mittee felt that it was quite necessary to retain the provision, for, although Hindu wills were not valid in other parts of India, they were, beyond question, valid and of daily recurrence in Bengal. For Bengal, therefore, the provision was indispensable and elsewhere it would have no operation as a widow could not become entitled to any property under the Wlll unless that will was recognised by the law as valid.20
Proposal for General Marriage Act.
View of Select Committee on General Mar-
riage Act.
Assent to the Bill on 25th July, 1856.
VI. General Marriage Act It is interesting to note that some more progressive social reformers by a petition dated 9th February, 1856 submitted a draft of a General Marriage Act by which men and women of any religious persuasion, not being minors or christians, could solemnise their marriage by subs- cribing to a declaration in presence of witnesses without any religious ceremony.
The Select Committee, however, felt that a General Marriage Act of the proposed nature would be quite different from, and generally very much larger than, the scope of the Bill.
Further, the classes for whose relief the Bill was intended to provide were sincere and in their own view orthodox Hindus. They would consider no marriage as made in accordance with their own law and as therefore moral which was not made according to their own rites. They considered these rites as perfectly applicable and perfectly suflicient for the case. There was no ground for presuming otherwise. It would be casting a slur upon the class for whose relief the Bill was intended and would be, in fact, to some extent, to side with their adversaries- if the municipal law pronounced that these rites were not sufficient for the case. That this Bill did not give relief to those whom a General Marriage Act might afford relief was no objection to this Bill. The Committee expressed a fervant hope that those who on their own account really wished such an Act (i.e. a general marriage law) to be passed should petition for what they, want, without complicating either that subject or the subject of the present Bill by un- necessarily confounding them together.
VII. Assent to the Bill The Bill was passed in the Legislative Council on 19th July, 18561. On 24th July, 1856, residents of the District of Dacca urged their support to the Bill, as it was "by no means against their Hindu Shastras what is shown by Pt. Ishwarchundra Bidyasagur in his two discourses on the re-marriage of Hindu widows".
The next day, on 25th July, 1856, the Bill was assented to by the Governor General?.
1National_'Archives File, pag; 1233.
"National Archives File, page 1242.
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