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The Hindu Marriage Act, 1955
The Indian Succession Act, 1925
Section 2 in The Hindu Marriage Act, 1955
Section 5 in The Indian Succession Act, 1925
Section 7 in The Hindu Marriage Act, 1955

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Law Commission Report
Hindu Widows Re-Marriage Act, 1856
f£§L_;3; q;;E;—1 .4 :1 LAW COMMISSION OF INDIA EIGHTY FIRST REPORT ON Hindu Widows Re-marriage Act, 1856 Govnnwmmw OF INDIA Mmismy OF LAW r ' T 'W CHAIRMAN Justice P. V. Dixit. LAW COMMISSION GOVERNMENT or Irwin New Delhi. Dated, the 20thDecember, 1979. My dear Minister, 1 am herewith forwarding the Eighty-lirst Report of the Law Commission recommending the repeal ofthe 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Hindu Widows Remarriage Act, 1856 has become obsolete and is no longer of practical utility, and should therefore be repealed.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 Commissiorfs 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 sincerc1y_ Sd/ (P. V. DIXIT) Shri S. N. Kacker, Minister of Law, Justice & Company Affairs, New Delhi. 79-M/B(D)806MofLJ&CA-2 C O N T E N T S Chapter T op i e Page 1. Introductory . . . . . . . . . . . . I 2. Re-marriage, maintenance and succession . . .. . . 3 3. Guardianship .. .. .. .. .. .. 6 4. The childless widow . . . . . . . . _ _ 7 5. Other rights, including adoption .. .. .. 9 6. Ceremonies for, and guardianship in, marriage . . ll 7. Conclusion . . _ _ . . . . . . . . 14 APPENDIX Historical background of the Hindu Widows Re-marriage Act, 1856 .. .. ... .. .. .. 15 CHAPTER 1 INTRODUCTORY 1.1. This Report is concerned with the Hindu Widows Re-marriage Act, 1856.* Consi- Scope Of the 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 iniquities’$, a review of the Act appears to be badly needed. 1 .2. As to the aspect of simplification of the law mentioned above", it may be noted that Eifect of the Hindu Widows Re-marriage Act deals with diverse branches of Hindu law in the context ?¤l?$fQ9°¤* of re-marriage of widows, such as marriage, maintenance, succession and guardianship, see- °g'S a"°"‘ 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 fgxlgggnfrgfm Minority & Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956--— 1£5 and l956_ 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 widows J¤S¤°°· certain disabilities (ag. 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. ""”`"i"i”`"`T_l"i`TM if T" 2Paras 1.2 and 1.3, infra. "Para 1.4, infra. ‘Para 1.1, supra. ‘Chapter 4, infra. 2 Section Topic 5. .. . . Saving of right of widow marrying, except as provided in sections 2 to 4. 6. . . . . Ceremonies constituting valid marriage to have efcct on widov’s marriage. 7, tirst para. .. Consent to marriage of minor widow. 7, second para .. Punishment for abetting marriage made contrcry to this section. 7, third para (proviso) Effect of such marriage. 7, fourth para .. Consent to re-marriage of major widow. ‘ CHAPTER 2 RE—MARRIAGE, MAINTENANCE AND SUCCESSION 2.1. The Act of 1856 is an Act removing all legal obstacles to the marriage of Hindu QQLQQSISSG widows'. It was enacted because, as the first paragraph of the preainble 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 otfsprings 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 complained! and the removal of all legal obstacles to the marriage of Hindu widows". 2.2. The Act, therefore, first removed the disability undcr which Hindu widows had been $€¢l}lQ¤ l—· suffering and allowed them to rc-marry by providing in section l, "no marriage contracted bet- ;‘f:1Q2'ia°f f ween Hindus shall be invalid and the issue of no such marriage shall be illegitimate, by reason Widow g° ° 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 $Q<>'°i<>¤ 5(i),_ of children. But in view of section 5(i) of the Hindu Marriage Act, 1955 which provides §";d“ M“"‘“g° ` that a marriage may be solemnised betwecn* any two Hindus if neihter party has a spouse ° ' » living at the time of the marriage, the special provision contained in section l of the Act of 1856 is not now necessary. Clause (i) 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 l 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 Fmt °f ?°°‘ which runs thus :— R,f;‘¤?ég§Kg: "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 eifect 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 inefl`ective 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 z- S€°Fl°¤ 2·· Maintenance, "2. All rights and interests which any widow may have in her deceased husbands "?t““‘*° S'-‘°°°s’ property by way of maintenance, or by inheritance to her husband or to his lineal sueee- ;f£,_,g5g¤t°smt° ssors, or by virtue of any will or testamentary disposition conferring upon her, without ex- I 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- t perty on her death, shall thereupon succeed to the same". 2.6. This section deals with (a) maintenance, (b) intestate succession, and (c) testanien- Position as to tary succession. m*“¤"°¤¤¤°°· 1CfZ Peacock C. J. in Akora Suth v. ,B0reanz', (1868) 2 B.L.R. 199, 205. 2See Appendix for historical background. ’Section 5(i), Hindu Marriage Act. 1955. 3 e — 1 ¤· • »¤•·v v••¢n»m _ As to maintenance, the widow on re-marriage loses all rights and interests she may have V 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 Hindusl. Under section 19, a widow can claim maintenance from her father-in-law, but t11is 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. Effect of _ scctign 2 2.7. Section 2 of the Act of 1856 speaks also of the forfeiture, on the re~marriage of a pn absolute widow, of her rights and interests in her husband’s estate. A widow who succeeds to the pro- lgagiéd by perty of her deceased husband under section 8 of the Hindu Succession Act, 1956, is under seo- widow tion 14 of that Act, full owner thereof?. 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. lf, 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 Act? Construction of section 2 as _ _ _ confined to limi- 2.8. Several High Courtsf have taken the view that section 2 of the Act of 1856 has no ted estate- application to an absolute estate. Further, it has been heldi that once a widow succeeds to the property and acquires an Views of Mull; absolute right under the Act of 1956, she cannot be divested of that right on her re-marriage, and Gupte. 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 fall owner ofthe sharel 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 samc." ‘Scctions 4, 19,521 and 22, Hindu Adoptions and Maintenance Act, 1956. °(a) Punit/zavalli Annual v. Ramalingam, A.l.R. 1970 S.C. 1730. (b) Kasturi Devi v. Dy. Director of Consolidation, A.I.R. 1976 S.C. 2595. °Pandurang Narayan v. Sindhu, A.l.R. 1971 Bom. 413 (Chandrachud & Malvankar JJ.) ‘(a) Ram Piari v. Board of Revenue, A.I.R. 1972 All. 492. (b) Pandurang Narayan v. Sindha, A.I.R. 1971 Bom. 413, 415, para 10. (c) Sasanka Bhowmick v. Amiya, (1973) 78 C.W.N. 1011, 1020. (d) Sankaribala 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. Bhuri Bai v. Smt. Champi Bai, A.I.R. 1968 Ra]. 139. ‘Jagdis/1 Mahton v. M0/zammad Elahi, A.I.R. 1973 Pat. 170 (D.B.) °Mulla’s Hindu Law (14th edition, 1974) page 869. • 'Emphasis added. A different view has, however, been expressed by Guptel. According to the learned au- thor, section 2 of the Hindu Widows Re-marriage Act,1856 has not been abrogated by section‘* of the Hindu Succession Act, 1956; that "although section 2 of the Hindu Widows Re-mar- 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 repealed?. If an estate is liable to forfeiture, it should make no diiference 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 N¢¤d f01‘ has been abrogated by the Hindu Succession Act3, or whether section 2 applies to a widow “’Pggln°; having an absolute estate. If section 2 has not been abrogated and appliesto a widow having gmgards an absolute estate, then a fortiari 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‘i¤¤¤¢- 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 arisen" on the construction of the section and its applicability to a widow having an absolute estate. 2. ll. 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 disqualiiies the widow H“‘d“ S“°°°$1 of a predeceased son or the widow of a predeceased son of a predeceased son or the widow ?;g;dA°t °°°“` 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 Eff9°* °f that section 30 of the Hindu Succession Act provides that any Hindu may dispose of, by will iggglcnmgg or other testamentary disposition, any property in accordance with the provisions of the Indian djspgsitigrh 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 Act", 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. S°°“°¤ 2 recommended. *Gupte, 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. ‘Ser= para 2.9, supra. ‘Para 2.10 supra. °Section 24, Hindu Succession Act, 1956. ’Cf> Section 74, Indian Succession Act, 1925. Q. 79-M/B(D)806MofLJ&CA-3 CHAPTER 3 GUARDIANSHIP , $¤¢¥i<>¤ 3- 3 l This takes us to section 3 of the Act of 1856 which deals with ‘ ‘ · · _ · · _ guardianshi of the 3.“;‘a‘5$?‘p children of the deceased husband of a Hindu widow who re-marries. The section read? ;— "3. Guardianship of children 0f deceased husband on the re-marriage of the widow-On 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 pro- 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 land rules in force touching the guardianship of children who have neither father nor mot er :— i "Provided that, when the said children have no property of their own suihcient 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." Effect of 3 , 2. In eifect, section 3 empowersl the specified relatives to apply to the court for guardian- section 3 ship of the children of the deceased husband—not expressly confined to the children of the 6Dd the Act mgrriage—un1esS a tCSl8.mCI1i8.l'y gl13l'dl21I1 has been 3P[J0lI1t€d· III this C0m1CCtl0n, it is neces- <>f1956· 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. No termination 3,3, According to judicial deCiS1011S, S€CtlOl'1 3 of the Act of 1856 does not expressly tor- Qf l;”*d°W`S minate the guardianship of the re-marrying widow? It merely terminates her preferential right? "g °‘ 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 widow? Incidentally, section 3 provides for the appointment of a guardian of the person of the minor children, but not of the property? Overlapping 3.4. Having regard to the fact that the law has been codified in the Hindu Minority and and c<>¤f¤Si<>¤ Guardianship Act, 1956, sections 5(a) and 6, the Continued existence of section 3 of tho Act if of 1856 on tho statute book creates confusion, which should be eliminated by deleting thc Rgpgak section"". · .1, · . _ _ ;lCj’2e;i:tioril§2(;, Hindu Minority and Guardianship Act, l956. °Ganga v. Jhalo, (1911) I.L.R. 36 Cal. 862. ‘Prem Kaur v. Hurnam Singh, A.l.R. 1939 Lah. 125. _ °Ganga v. Jhalv, (1911) I.L.R. 36 Cal. 862, 872 873 (Mookeriee J.). °Rup Raut v. Basu Deb Raut, A.I.R. 1962 Pat. 436, 437, para 4. _ ’Bak.shi Ram Ludha Ram v. Shilla Devi, A.I.R. 1960 Pun]. 304 (D.K._Mahaian J.) °Kusa Parida v. Vaishnav, A.I.R. 1966 Orissa 60, 61, para 5 (G.K. Misra J.). 6 CHAPTER 4 THE CHILDLESS WIDOW 4.1. In section 4, the Act contains a provision which seeks to continue the assumed dis- S°9‘i°¤ 4 ability of a childless widow, as to the right of inheritance. Such a provision appears strange $§‘(;g1J/°SS today. The section reads as follows :— ` "4. Nothing in this Act to render any childless widow capable of inheriting——Nothing · in this Act contained shall be construed to render any widow who, at the time of the death of any person leaving any property, is a childless widow, capable of inheriting the whole or any share of such property, if before the passing of this Act, she would have been in- capable of inheriting the same by reason of her being a childless widow." 4.2. This provision is also likely to create misunderstanding as to the legal position of a Likelihood of childless widow. Even if any such disability was inforce under any school of uncodiiied or ¢9¤*`¤$*°¤ i¤ unamended Hindu law,1 the position under the Hindu Succession Act, 1956 is now different, ‘éfc‘;cg0T‘A;‘: 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 Act?, 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 b9f<>f¢ *h¢ to property right being founded on her offering funeral oblations through her son, a daughter H‘"d‘j\§“°°°s' who is a sonless widow was not entitled to inherit to her father.3 Presumably, section 4 of the sion C ' 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 School in an Allahabad easel (case relating to parties governed by the Dayabhaga), where the sons of a ·C*”° law deceased daughter. were preferred to a widowed childless daughter. gf1g;sf£]“‘k‘ct 4,5, Even in a caste in which widow re-marriage is allowed by custom, a childless widowed Rem -3 daughter of a child-bearing age is not entitled in the Bengal school to succeed to her father’s allowgdmbyge 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 $5,,:*;:: a childless widow. Any argument that the widow might re-marry and have male issue is anti- I cipated by section 4 ( of the Act of 1856), which prevents her from claiming the right of inheri- tancem. But if the widow marries (after widowhood), before her father’s death, section 5 would take away the disabilityll *Para 4.4 and 4.5, infra. “E.g. section 25, Hindu Succession Act, 1956. Slgpgiabhaga, Chapter 11, section Il, verses 3 and 15; Banerjee, Marriage and Stridhana (1923), pages 314, ‘BenmI Kumarcc Debee v. Purdhan Gopal Sabee, (1865) 2 W.R.C.R. 176 (Calcutta). 5Rad/ia Kishen v. Rafah Ram, (1866) 6 W.R.C.R. 147 (Calcutta). “See also Mukanda v. Manmohini, (1920), 19 C.W.N. 472. ’Smt. Pramila v. Chandrasekhar, (1921) l.L.R. 43 All. 460 (Case under Dayabhaga system). “Binodini v. Sustha, (1920) I.L.R. 48 Cal. 300, 302. °G0ur, Hindu Code (1938), page 940, para 2252, citing Mukanda v. Manmo/zini, (192.0) 19 C. W. N. 472. *°Banerjee, Marriage and Stridhana (1923), pages 314-315. ¤For section 5, see Chapter 5, infra. 7 8 PQ5ii¢i¤¤ of 4. 7. While this was the position under the Dayabhaga, the Mitakshara law was different ‘£=J‘g`°;; in According to Gour,1 no such distinction (between various classes of daughters) exists in Mitaksham the Mitakshara. Recommendation 4.8. The rule debarringachildless widow under the Dayabhaga law, to which we have ¢<> (6964; made a reference above2, and which, as already statedg, 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 earlier? In this situation section 4 of the Act of 1856_creates confusion? Accordingly, we recommend that section 4 should be repealed. ` ‘Gour, Hindu Code (1938), page 940, para 2252. H _" A ”Para 4. 3, supra. °Para 4.2, supra. ‘Para 4.2, supra. 5Para 4.2, supra. i i 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 ofthe Act*— Analysis of "to remove all legal obstacles to re—marriage". The section can be divided into two parts. The S°¤*'°“ 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 S¤bS¢q\¤¢¤* rights in relation to property (such as, rights to inheritance and maintenance) and other rights l°g'sl”‘°“‘ (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 jails outside the gmbit of such /egislation——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", marriagei, guardianship** and earlier ham 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 F of the various topics falling within the field of personal law, we have not been able to find any uncoddied 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. ”(a) Akora Suth v. Boreani, (1868) 2 Bengal Law Reports 199 205 206 (Peacoclc‘C.J. & JacksonJ.). (b) Chamar Hara Dalmal v. Kas/zi, (1902; I.L.R. 26 Bom. 388. (c) Basappa v. Ragava, (1904) I.L.R. 29 Bom. 91. (d) Lakshmanu Sasamallo v. Siva Sasamallavani, (1905) I.L.R, 28 Mad. 425, 427. “Basappa v. Ragava, (1904) I.L.R. 29 Bom. 91 93. ‘See also Mantorabai v. Paretanbai, A.l.R. 1972 M.P. 145. 5Chapter 2, supra. “Chapter 2, supra. ,. ’Chapter 2, supra. “Chapter 3, supra. °See seetions 7, 8, 9 and 14(c), Hindu Adoptions and Maintc nance Act. 1_955 and para 5.5, injra. 9 10 Ad<>¤¢i<>¤· _ 5.5. In oi der to complete our survey, it would be appropriate to deal in brief with the posi- tion regarding adoption. Section 5 of the Act of 1856 does not specifically mention adoption nor is it referred to in sections 2, 3 and 4. However, it is proper to point out that the right of a Hindu widow to give or to take in adoption is now exclusively governed by the Hindu Ad op- tions and Maintenance Actl, 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 _ ?°°*l°*; i? 5.6. This disposes of the earlier half of section 5. The latter half of section 5 relates more jgfrmfundant specifically to the rights of inheritance of a widow. It equates her re-marriage to a first marriage ' for the purpose. As the section stands at present, the proposition that "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" no longer requires express enunciation. The law of intestate succession, as 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-1856 remarriage, this part of the section . _ has now lost all its utility. S _ 5 t 5.7. In this position, the whole of section 5 needs to to be repealed. e tion o becrepealcd. _..__-.__; —--_m\`».~.-`——. -. qémi .—-— » —·~-— - —· ·-· ‘ ‘Sections 7, 8, 9 and l4(c), Hindu Adoptions and Maintenance Act, 1956. ‘ 'Chaptcr 2, slum:. 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 Q- would have constituted a valid marriage for a Hindu woman, had she been a virgin, those same C°*°m°¤*°$· ceremonies would constitute a valid marriage if the woman is a widow. The importance of the section is illustrated by an Oudh easel. 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? Sgggfgundu Section 7 of the Hindu Marriage Act reads :— Marriage Act. "7. Ceremonies for a Hindu Marriage :— (1) 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 scven steps by the bridegroom and the bride jointly before the sacred hre), 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- R°|R”l gf , ly, we recommend its repeal. ;gc°:;3;mndcd_ Il. 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 0. 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 grandfather 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. Effect of suc/1 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 anvquestion regarding the validity of a marriage made contrary to the provisions of this section, such 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 suthcient to constitute her re-marriage lawful and va1id." 6. 5. The position resulting from section 7 of the Act of 18563 can be thus analysed- a$I¢:;gj;2d7 (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. · ·· M ______r___*h_ _-T_n_.`W .-.”.Y-;---..__ ‘Ram Pearay v. Mst. Kailasha, A.I.R. 1930 Oudh 426, 428. 'Section 7, Hindu Marriage Act, 1955. Q °P8ra 6.4, supra. T 11 I \ x 12 _ (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 follow by implication from section 7, there being no prohibition expressly enacted in this regard. _ (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 I with " minority" in the context of marriage. Guardians So much as regards the circumstances in which a consent is, or is not, required for the under l'1]2LZ'L`iC`.g€ of the widow. Where a guardian’s consent is required, the guardians (in order of pre- $°°“°“ 7- terence) under section 7 of the Act of 1856 are 2 :— 1. Father, 2. Father’s father, 3. Mother, — 4. Elder brother, 5. Other male relatives. Guardians 6.7. The live persons mentioned in section 7 of the Act of 1856:* are the same as those according to enumerated by Yajnavalkyat. In Yajnavalkya, however, the mother is placed at the end of the Y¤J¤¤V¤“¤S to Vidyasagar as one "the most patriotic and the learned—in-Hindu law". While certain inhabi-.th° Blu 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 Brahrnins 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 Bhusar·i" (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—rnarriage" 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 thc 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 Per 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 surrer 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 whereunder 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- paudmp bani Bhatparrah, Bansbarrah and other places", "being apprised thatone 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 lirst 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{Lgigned by Raja Radhakant Bahadoor, Raja Kalikrishna Bahadoor, Raja Apurva Krishna Bahadoor, Raja Kamal Krishna Bahadoor, Raja Narendra Krishna Bahadoor and others opposing the Bill. ' * V * * ·—; 17 i IV. Publication of the Bill After the Bill "to remove all legal obstacles to the marriage of Hindu widows" was pub P¤bli<>¤ti<>¤ lished to elicit public opinion, 51 petitions were presented in relation to the Bill; of which 23 - °f th° Bm signed by 5191 persons were in favour of the principle of the proposed measure and 28 signed ggnggghc 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 ef *h° Fight and reasons prepared by Mr. Grant on 17th November, 1854 underscored the fact that the ob- of frq°d°‘“ °' ject of the Bill was to give the petitioners and all who agreed with them and all who thereafter gfaitgiiiimcm 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 R°“°"$· suttee (which act no longer could be committed in India) was bound to a life of the most pain- ful bodily mortiiication. 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 Council 1 Legislative which was read a first time 011 the 17th NOVembe1‘, 1855 C0l1tained Only the first two sections histoly- of the Act. The first section saved the validity of re-marriage. The second section ran as Th°- s°°°“d , section. 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 ‘ eases in which the husband’s estate, having iirst descended to the sons or grandsons, afterwards Committee. vested in the widow as heiress of the iirst taker. In these cases, the Committee thought, the second section? of the Bill might also apply, and they altered it accordingly. The Committee g 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 section? Another objection raised was that Hindu rights of inheritance were closely connected with Inheritance. I 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 i religious obligations and it would be unjust to allow them to have rights of inheritance. I l The protagonists of the Bill‘* advanced two agruments in support of the measure. The iirst Conversion. was that when a Hindu widow became a Christian or a Mahomedan and then married, her civil rights under the lex 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 inilicted on her for a conscientious adherence to her own religion. 2 j ‘National Archives File_ pages 55—58 (Mr. Grant). i ’F0r the second section, see supra. 5 'National Archives File, page 1119 et sea. ? ‘Pctition dated 15th January, 1856 (National Archives File, page 187). x • IS Unchastity. Secondly, they quoted the case of Doe Dem Soummoney Doses v. Nemvohurn Doss,l(deei- A 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 marriage?. The Select Committee dealt with this objection on the principle that the greater ought not to involve the lesser privilege. lf 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 Vitro T ayarammo v. Sivayya and others,3 by a majo- rity (Wallis C.] . and Oldfield J.) held that a Hindu widow who becomes a Mahomedan and marries a Mahomedan forfcits by the re-marriage her interest in her first husband’s estate under thc 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-marriage 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. mlgw To revertto the Select Committee, the Committee thought it necessary to provide specially in rc-marriage. 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 I 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. E°'f°l““° °f Sir Robert Hamilton, the Agent of the Governor General for Central India, suggested Qfggrgggg that at 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 off`spring 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 this distinction 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 diff`erent 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. 1Doe Dem Saummonev Dosee v. Nemvchum Doss, Bell &Tayler’s Reports, Vol. 2, page 300 (Pool CJ.) NR- tional Archives File, page 188). _ ’Perition dated 15th January, 1856 (National Archives File, page 188). 'Vixta Tayaramma v. Sivnyya and others, A.I.R. 1919 Mad. 854, 858, 859, 860. 19 ’ 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 ar 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. lt 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 V 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 C 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 diiliculty, 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. lf the Act were to remain selent on the subject, it might thereafter be contended that cassante ratione ccssaz lex. (The maxim as given in ‘Latin for lawyers’ reads : Cessante ratir ne legis, cessat ipsa lex. 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 make recognise in Hindus the right to make bequest by will and that the law of inheritance obtain- bequest. 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 will unless that will was recognised by the law as valid, F iw n 20 VI. General Marriage Act Proposal It is interesting to note that some more progressive social reformers by a petition dated {&2r$?;“g'2“· 9th February, 1856 submitted a draft of a General Marriage Act by which men and women of ' g 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. View of Select The Select Committee, however, felt that a General Marriage Act of the proposed nature gzggftxagf would be quite different from, and generally very much larger than, the scope of the Bill. nasa ct 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 sulhcient 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 tothe Bill Assent to the The Bill was passed in the Legislative Council on 19th July, 1856*. On 24th July, 1856, wl °*{¤8§g*h residents of the District of Dacca urged their support to the Bill, as it was "by no means against u y’ ' their Hindu Shastras what is shown by Pt. Ishwarchundra Brdyasagur 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?. *National_'Archives File, pag; 1233. ’National Archives File, page 1242. M]B(D)800MofLJ&CA—2,00O—13-9-80-—G1PS