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Section 2 in The Hindu Widows' Remarriage Act, 1856
The Hindu Widows' Remarriage Act, 1856
Matungini Gupta vs Ram Rutton Roy And Ors. on 24 November, 1891
Section 3 in The Hindu Widows' Remarriage Act, 1856
Section 1 in The Hindu Widows' Remarriage Act, 1856
Citedby 12 docs - [View All]
Mt. Jileba vs Mt. Parmesra on 11 May, 1950
Narain And Anr. vs Mohan Singh on 22 December, 1936
Mohan Lal And Ors. vs Mst. Bhudevi And Ors. on 17 March, 1954
Ganga Saran Singh And Anr. vs Mt. Sirtaji Kuer And Anr. on 1 August, 1935
Lalit Mohan vs Shyamapada Das on 3 August, 1951

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Allahabad High Court
Bhola Umar And Anr. vs Mt. Kausilla And Ors. on 8 July, 1932
Equivalent citations: AIR 1932 All 617
Author: Sulaiman

JUDGMENT Sulaiman, C.J.

1. There has undoubtedly been considerable controversy as to whether Act 15 of 1856 was applicable to all Hindu widows or not. The Allahabad High Court from the very beginning has laid down that the Act does not apply to such Hindu widows as were entitled under their custom to remarry and who were not bound to take advantage of the Act. Opinion in the other High Courts has considerably varied, and the Allahabad view has been openly dissented from. But it appears that with the lapse of time opinion in the other High Courts, particularly the Madras High Court, has come round towards the view of this Court, at least so far as the applicability of the Act is concerned. The Judges who have held that all widows are governed by the provisions of Section 2 of the Act, have based their view on the wide language of that section. It reads:

All rights and interests which any widow may have in her deceased husband's property shall upon her remarriage cease an determine as if she had then died.

2. If the section were to be taken in its widest scope, it would have to be conceded that the provision of law applies to any widow whatsoever. It would then include not only all Hindu widows, but even Christian and Muslim widows. Such a construction of the section would lead to absurdity. It is therefore impossible to say that Section 2 of the Act can be interpreted without reference to the other provisions of the Act and without reference to the preamble. Were it possible to interpret Section 2 standing by itself and independently of everything else, there might have been some force in saying that it applied to all Hindu widows. But we are forced to restrict its scope so as to exclude at least Christian, Muslim, Parsi or Buddhist widows. In order therefore to find out the true scope of the section, one is compelled to look to the provisions of that Act contained in Section 1, as well as to the preamble. No doubt a preamble can never control or restrict the substantive provisions of an Act. It merely supplies a key to the interpretation of those sections. But where there is an ambiguity in the sections or where there is any doubt as to the true scope of the provisions of that enactment, the preamble may be of some guidance. The Act was professedly passed with the object of removing all legal obstacles to the marriage of Hindu widows. The preamble stated that it was known that Hindu widows, with certain exceptions, are held to be by reason of their having been once married, incapable of contracting a second valid marriage and the offspring of such widows by any second marriage are held to be illegitimate and incapable of inheriting, whereas many Hindus believed that this imputed legal incapacity, although in accordance with established custom, was not in accordance with the precepts of their religion and desired that the law should no longer prevent those Hindu widows who may be so minded from adopting a different custom. The Act was intended to relieve all such Hindus from this legal incapacity complained of and to remove all legal obstacles to the marriage of Hindu widows.

3. It is therefore obvious that the legislature recognized that there were certain exceptions to the general practice of widows not being allowed to remarry. Obviously the intention of the legislature was to remove the legal obstacles in the way of remarriage and not to impose another penalty or restriction on those who did not stand in need of any legislation. It is therefore most unlikely that the legislature would have intended to deprive Hindu widows who by the custom of their caste were entitled to remarry and to retain the property of their husbands from holding the estate. The object of the Act, professedly was to enable those widows, who were incapacitated from marrying to remarry. But as it was considered that remarriage where it is not allowed by custom should not disturb the relations of the deceased husbands or their estate, there was an express provision made in Section 2 that all their rights and interests in the deceased husband's property shall cease and deters mine.

4. The Allahabad High Court has accordingly held that the Act could never have been intended to apply and did not apply to those Hindu widows who by the custom of their caste had independently of the Act, a right to remarry. The point does not appear to have been emphasized in any of the previous cases nor does it appear to have been refuted in cases taking the contrary view that there is no option but to restrict the scope of Section 2. That section cannot apply to all widows. It can only apply to a particular class of widows for whom the Act was intended. To ascertain that class one is compelled to look to the preamble, which shows that that class of widows consisted of those who were incapable of contracting a second valid marriage. This obstacle in their way was removed and their children were declared by enactment to be legitimate. The Act was intended to render remarriage valid and to legalize the legitimacy of children. It conferred a benefit on those who could not remarry, but at the same time imposed a restriction on them. It was not intended to deprive those who already possessed the right to remarry of whatever rights they enjoyed in their deceased husbands' properties.

5. The cases of the various High Courts have been considered at length by Mukerji, J., and it is unnecessary for me to cover the same ground. The Full Bench of the Bombay High Court in Vithu v. Govinda [1898] 22 Bom. 321 (F.B.) proceeded on an assumption of prevalence of a custom of forfeiture on remarriage which is not true so far as these provinces are concerned. In most cases where a custom of remarriage was established the right to retain the estate was also put forward and upheld. Indeed no case has been brought to our notice where a custom to remarry was established and yet the widow was held not to be entitled to retain the estate of her deceased husband. The later view in Calcutta appears to be based more on.the supposed principles of Hindu law than on the provisions of the Act. In Madras this is the opinion of the majority of the learned Judges in the Pull Bench case of Vitta v. Chatakondu [1918] 41 Mad. 1078. But in these cases it was simply taken for granted that the Hindu law enforces a forfeiture of the estate, and there appears to be neither any elaborate discussion of the point, nor direct reference to any authorities.

6. The main argument appears to be that because in the Hindu conception of marital relations a wife is considered to be half the body of her husband and the surviving widow remains that half, she cannot retain his estate after remarriage. There is also the supposition that a widow can hold the estate only till her widowhood, and as she ceases to be the surviving half of the body of her husband on her remarriage and cannot thereafter confer spiritual benefit on his soul, she must give up the estate. The notion that a widow is the surviving half of her deceased husband has been called by Sir Seshagiri Iyer in the "Full Bench of the Madras High Court referred to above as " picturesque metaphor." Certainly this principle is not the sole basis of her right to succession to his estate. Similarly when an unchaste widow, who could hardly be imagined to confer spiritual benefit on her deceased husband to whose marital relations she is disloyal, does not cease to hold the estate, the conferment of the spiritual benefit cannot be the indispensable condition for the retention of the estate. The question was thoroughly examined by their Lordships of the Privy Council in the leading case of Moni Ram Kolita, v, Kesi Kolitani [1880] 5 Cal. 776, when considering the question of unchastity, their Lordships had to examine the text of Vrihat Manu and of Catyayana, two verses of which are as follows:

(1) The widow of a childless man, keeping unsullied her husband's bed, and persevering in religious observances, shall present his funeral oblation and obtain his entire share. (2) Let the childless widow, keeping unsullied the bed of her lord, and abiding with her venerable protector, enjoy with moderation the property until her death. After her let the heirs take it.

7. Their Lordships distinctly ruled that these texts related to the right of succession to the estate and not to its retention and that the conditions of keeping unsullied her husband's bed", "persevering in religious observances and abiding with her venerable protector" were not conditions precedent to the continuance of the widow's estate, and that even if any or all of these conditions were broken, no forfeiture was involved. The right to hold the estate of her husband is based on distinct texts, and the notion of her being a half of her husband's body has in no text cited before us been made the sole basis for the continuance of her estate. It is to be admitted that there is no express text which lays down that a forfeiture of the Hindu widow's estate will follow upon her remarriage; nor is there any text which expressly says that her right to hold the estate will terminate on her death or on remarriage. On the other hand, the verse of Catyayana, quoted above allows her to enjoy the property until her death, and the heirs are to take it only after her. It has been suggested that the idea of a Hindu widow retaining her property is incompatible with the conception of Hindu law. But when once the estate has vested in her, there can be no forfeiture unless there is a clear authority for that view, and forfeiture cannot be inferred because of some notional view deducible from some supposed principle underlying the Hindu law of succession. When it is now well settled that unchastity does not involve " any forfeiture, it would prima facie follow that remarriage would not. It; would be putting a premium on unchastity to hold that she can retain the property so long as she remains notoriously unchaste, but the moment she remarries she will forfeit it. The expression "widow's estate" is an English expression and does not imply that the estate continues so long as she continues to be a widow. In one sense she still remains the widow of her deceased husband, even after her remarriage. The expression in Hindu law for "widow's estate" is "stridhan," which would literally mean "woman's estate," and not necessarily widow's estate. It would be offering an inducement to a widow to be immoral if she were told that she would be in a worso position by validly remarrying than by living in open adultery. A change of religion like a discontinuance of chastity involves no forfeiture. There seems to be no good reason for holding that a remarriage recognized by law does so. In the absence of an express, text, the Hindu law should be interpreted so as not to cause a shock to one's moral conscience. Obviously the strict Hindu law never contemplated a remarriage for the higher classes. The rulesllaid down therefore do not provide for remarriages. In the eye of the pure Hindu law remarriage was hardly anything better than concubinage. When remarriage was not recognized it was tantamount to unchastity. In this view of the matter her position should not be any worse than if she were unchaste. Undoubtedly the estate vests in her on the death of her separated husband dying issueless. The burden is on the party who alleges it to show that there is some well-settled rule of law which divests her of her estate. In the absence of any authority to the contrary, her widow's estate must continue If the Act does not apply then her estate continues even though she remarries under the custom which allows it.

8. When nothing more than a mere custom of remarriage is established, there is no presumption that under the Hindu law she forfeits the estate. The party who is alleging that there has been a forfeiture must establish a further incident of the custom that forfeiture is a necessary consequence. Where such additional custom is established, she would of course lose the estate if she were claiming it under the Act; and she would also lose it if she were claiming the right to remarry under the custom. But where nothing more is established than a mere right to remarry under a custom, it cannot be presumed that forfeiture is a necessary consequence. The burden to prove a custom involving forfeiture is on the party asserting it, and in the absence of such proof it must be held that she could remarry and retain the estate and would not forfeit it. Of course no custom can be established which would override the provisions of a statutory enactment; but where the Act does not apply at all, custom, being a part of the Hindu law, must override the general principles of that law. But a party must go the whole length of proving the full custom on which he relies. By establishing only one part of it he cannot ask the Court to infer the other. I would therefore have no hesitation in saying that unless it is affirmatively established that in addition to the custom of remarriage there is the further custom of forfeiture of the husband's estate, she is entitled to retain the estate even after remarriage and till her death.

9. I should like to add that even if I had not been independently convinced of the correctness of the view which has prevailed in this Court, I would have felt bound by the long course of unanimous decisions which have been given here. So far as these provinces are concerned, people have acted upon the belief that, in the absence of any custom to the contrary, a widow who is entitled to remarry under the custom of her caste, does not forfeit her estate. Many a title would be upset if this interpretation of the law were to be reversed. There must be many transferees of property who have purchased it in the expectation that their right would continue at least till the death of the widow, who would lose it by her voluntary act of remarriage. It would be extremely dangerous to shake the authority of long-established decided cases of this Court, which not being manifestly erroneous have stood for a long period of time unchallenged in this Court and have been always followed. Affecting rights in property they must be treated as having passed into the accepted law of these provinces. Of course, where decisions are directly contrary to a statute, it is the duty of a Full Bench to overrule the previous decisions even though they might have stood for a very long time. But where the Act is at least ambiguous and the Court does not feel absolutely able to overrule them, it would be unsafe to disturb the course of rulings. No doubt these decisions have been questioned in some of the other High Courts in India, but even there the opinion has varied and in recent times has been converging to the view taken in this Court. The reversion of the estate on remarriage would alter the course of succession and would let the property go to a different individual. Many a reversioner must have refrained from suing immediately on her remarriage in the expectation that succession would open out later on her death. The diverse rulings of this Court must have affected contracts and dealings between man and man. On the principle of stare decisis it is our clear duty to adhere to those rulings so long as the legislature does not intervene or their Lordships of the Privy Council do not rule that they are wrong.

Mukerji, J.

10. The following point has been referred for decision to the Full Bench, namely:

Does a Hindu widow who remarries in accordance with a custom of her caste forfeit thereby her rights in the estate of her first husband.

11. I take it that in this case the Hindu widow contracted a valid marriage and the marriage was in accordance with and recognized by her caste, and would be recognized by the Courts as a valid marriage. The question'put to us does not say whether we have to consider the question on the basis of Act 15 o£ 1856, (The Hindu Widows Remarriage Act), or whether we should consider it from the point of view of the Hindu law. In certain cases decided by Courts other than this Court, it has been held that where a Hindu widow remarries validly according to the custom of her caste, she does not forfeit her late husband's estate under the Act (Act 15 of 1856), but she does forfeit it under the Hindu law. As the question put to us is not restricted, we shall have to consider it from both points of view. To start with, I proceed to consider the question with reference to Act 15 of 1856. The Hindu Widows Remarriage Act of 1856 contains a rather long preamble which indicates that conflicting opinions were held in Hindu society as to the validity of Hindu widows' marriage, and on account of there being some uncertainty about the view that might be taken in the Courts about the validity or otherwise of such marriages, the Governor-General in Council was approached to pass a law legalizing such marriages. The preamble is rather long but is very important in order to find out whether the Act was meant or not to apply to the case of those Hindus among whom a custom sanctioned the validity of a widow marriage. Before I read the preamble I must express my agreement with the opinion which has been expressed from time to time that if there be a conflict between the preamble and the Act itself, the preamble governs the Act. In such cases of conflict, it must be taken that the legislature in framing the Act has failed to achieve its object and therefore the language of the Act must prevail over the wishes of the legislature, as expressed in the preamble. As an example I may cite the case of the Mahomedan Wakf Act of 1916 in which there was a conflict between the preamble and the Act; the preamble professed to give the wakf a retrospective effect but the body of the Act failed to convey that idea and it was held that in spite of the preamble, the Act had no retrospective effect. (His Lordship after quoting the preamble proceeded). "The preamble notes that there are certain exceptions to the rule that the marriages of Hindu widows were held to be illegal and not sanctioned by the Shashtras. The preamble then says that it is just to relieve "all such Hindus from this legal incapacity of which they complain" and the Act proceeds to remove the legal obstacles to the marriages of Hindu widows. It is clear therefore that the legislature wanted to give relief only to such Hindus as complained of their incapacity to contract for their widows a marriage. The Act therefore is an enabling Act and was never meant to create a disability where none existed. But as I have said, if the body of the Act does create a disability which may not have been intended, that disability will have to be rocognized."

12. Now let us read the Act itself. The first section legalizes the marriages of Hindu' widows. It is in most general terms and nothing turns upon the language of this section. The section mentions the history of the legislation by pointing out that certain Hindus did hold that a widow marriage was against the true interpretation of Hindu law, while others held that it was in accordance with Hindu law. The second section is in most general language and lays down that whenever a widow contracts a second marriage she would forfeit all her right to maintenance or inheitance from or in her late husband's property. If this section were read literally, it would apply to widows who were not Hindus but were Mahomedans or Christians ; in fact, to all widows within British India. This could hardly have been intended and therefore this section must be read as being controlled by the preamble. If we have once to bring in the preamble to read the section, should we not see what was the object of Act as expressed in the preamble? The preamble recognized that there are exceptions where a widow marriage was regarded to be valid and those cases did not require any relief. It follows therefore that the Act was meant to apply only to the cases of those Hindus among whom a widow marriage was not permitted by the caste but as regards whom it was contended that although the caste did not permit such a marriage the Shash-tras permitted it. If we thus read Section 2 and the preamble together, we shall find that there is no conflict between the preamble and Section 2. On the other hand, the preamble helps up to find out the true application of Section 2. Thus read, Section 2, in my opinion, applies only to cases where the custom of the caste does not permit of a valid widow marriage.

13. It is not difficult to see that the rule of forfeiture or loss of the right of maintenance was enacted by way of a compromise between extreme views. One party contended that a widow marriage was permitted by the Hindu law and another party contended that it was not so permitted and if allowed would create dissension and trouble in the family. The rule therefore was laid down that the widow of a caste where remarriage was not customary may have personally the benefit of the Act but she must cease to have anything to do with her late husband's property so that feuds and disturbances in the family affairs and the property may be avoided. Whether this be or not the real object and genesis of the rule, it seems to me clear, as already stated, that Section 2 does not apply to the cases of widows who have a right to remarry and who are entitled to remarry validly under the rules of their castes.

14. Now let us consider the authorities of cases decided in other High Courts. The learned Judges who have made the reference mentioned some cases, beginning with the case of Har Saran v. Nandi [1889] 11 All. 330. Up to this date, for a space of over 40 years, this Court has consistently held the view that Section 2, Widows Marriage Act, did not apply to the case of a widow whose remarriage was permitted by her caste. The cases are numerous and at least 11 reported cases have been cited before us. These are : Har Saran Das v. Nandi [1889] 11 All. 330, Ranjit v. Radha Rani [1898] 20 All. 476, Khudho v. Durga Prasad [1906] 29 All. 122, Gajadhar v. Kaunsilla [1909] 31 All. 161, Mula v. Pratab [1910] 32 All. 489, Mangat v. Barto A.I.R. 1927 All. 523, Mt. Ram Dei v. Mt. Kishen Dei [1916]32 I.C. 338, Nagar v. Khase A.I.R. 1925 All. 440, Bal Krishna v. Paij Singh A.I.R. 1930 All. 593, and Abdul Aziz Khan v. Nirwa [1913] 35 All. 466. Two more rulings on this point are worth recording : see (1) Sohan Lal v. Mt. Durga A.I.R. 1914 All. 357 and Mt. Nihali v. Kanak Singh A.I.R. 1914 All. 310.

15. We have been told that the other High Courts have taken a different view. The cases that have been cited before us are numerous and all the cases do not require any detailed discussion. Thus I propose to examine only the more important ones. In Akora Suth v. Boreani [1869] 2 B.L.R.A.C. 199 a Hindu died leaving a widow, a minor son and a daughter. The son succeeded under the Hindu law and he died subsequently. Before the son died the widow had married again and on the death of the son claimed the inheritance as the mother. It was held that the suit was maintainable. It appears that there was a difference of opinion between the Judges who heard the case first and there was a Letters Patent appeal. Sir Barnes Peacock, the Chief Justice, in deciding the Letters Patent appeal, expressed the opinion that the object of the Act was to remove all legal obstacles to the marriage of Hindu widows. In this case when the widow remarried she was not possessed either of her son's property or of her husband's property and therefore she had nothing to forfeit and Section 2 was no bar to her succeeding to the son's estate on the latter's death. This case therefore is not in point and does not deal with the question of any remarriage under caste rules and forfeiting property already inherited. Unless there is a discussion of the question it cannot be said that the case is an authority for the proposition which he did not consider and expressly decide.

16. The next case that I consider is that of Matungini Gupta v. Ram Rutton Roy [1892] 19 Cal. 289 (F.B.). This case does not consider the position of a widow who married according to the custom of the caste. It was a case where a widow declared that she was not a Hindu and remarried under the Special Marriage Act (Act 3 of 1872). It was held by the majority of the Full Bench that she forfeited her interest in her first husband's property. The dissenting Judge, Prinsep, J., held that the Act applied only to those Hindus who remarried as Hindus and under the Hindu law. We have nothing to do with the controversy that was raised in that case. When the case was before the Division Bench, Wilsonj J., expressed the opinion that if he had to decide the case under the principles of Hindu law and without reference to express legislative enactments, he would be disposed to hold that widow's estate was determined by her marrying a second time and he thought that this would not in any way be inconsistent with what was held by the Privy Council in the case of Moniram Kolita v. Keri Kolitani [1880] 55 Cal. 776. This dictum has been very much relied upon on the second question which I shall have to consider and I will consider it later on. I may however point out here that the lady who remarried was a lady of a twice-bore class being a Viadya by caste and in Bengal a widow of her caste could not validly remarry according to the popular notions. This case therefore is no authority for the point before us.

17. The next case from Calcutta is the case of Rasul Jehan Begam v. Ram Surun Singh [1895] 22 Cal. 589. This is a two-Judge case and it was held by the learned Judges that a Hindu widow on remarriage forfeited the 9state inherited from her former husband although according to custom prevailing in her caste a remarriage was permissible. At p. 584 the learned Judges remarked that the question whether a widow in whose caste remarriage was permitted lost her late husband's property owing to remarriage did not properly arise before them, but they said that if it was necessary, they were prepared to follow the Madras case of Murugayi v. Viramakali [1877] 1 Mad. 226. In that case the view was which was approved of by Wilson, J., in the case already considered in Matungini Gupta v. Ram Rutton Roy [1892] 19 Cal. 289 (F.B.) that a widow took her husband's property as the surviving portion of her husband and when she remarried, it could not be supposed that the law which her caste followed would permit the remarried widow retaining the property. This point was decided, if it was decided at all, on the basis of Hindu law and not on the basis of Act 15 of 1856. In concluding the judgment the learned Judges said that their attention had been drawn to a case of the Allahabad High Court, Ear Saran Das v. Nandi [1889] 11 All. 330, already referred to, to the effect that a widow belonging to a caste in which remarriage is permitted did not upon her remarriage forfeit her interest and Section 2, Act 15 of 1856, did not apply. Having said so, they further remarked, that it appeared to the Judges that the true position of a Hindu widow inheriting the estate of her husband was not considered in that (Allahabad) case. It follows that the learned Judges decided the case on what they supposed were the principles of Hindu law and not on Act 15 of 1856.

18. The next case is of Ganga Pershad Sahu v. Ramassrey Shahu [1911] 38 Cal. 862. This was a case relating to the right of guardianship of a widow who had remarried according to her caste rules. The Judges had to construe Section 2, Act 15 of 1856, and held that the Act did not apply. At the bottom of p. 870 the learned Judges accepted the second contention of the counsel for the lady and quoted the case of Parehh Banchor v. Vahkat [1887] 11 Bom. 119 in support of their case. The learned Judges however remarked that the forfeiture of her first husband's property would take place under the Hindu law. This case therefore does not support the view that there would be a forfeiture under the Act. In Mohammad Umar v. Mt. Man Kuer [1917] 40 I.C. 783 their Lordships professed to follow the case of Rasul Jehan Begam v. Ram Surim Singh [1895] 22 Cal. 589 and held that whether Act 15 of 1856 applied or not, there would be a forfeiture under the Hindu law, see top of p. 918, per Sanderson, C.J. The same view was expressed by the other Judge. This case therefore does not support the view that the Act applies.

19. The case of Santala Bewa v. Badaswari Dasi A.I.R. 1924 Cal. 98 was the case of a widow belonging to a caste who had recently adopted the Hindu customs, being an originally non Hindu of an aboriginal tribe; yet it was held that the widow forfeited her first husband's property under the Hindu law. At p. 735 the learned Judges remarked that in their opinion the case was governed by ordinary Hindu law and they further said that Section 2 contemplated the case of any widow in-eluding the widow of a class among which remarriages are allowed. The case does not discuss any principle, does not discuss the language of the Act and follows what are supposed to be the earlier cases of the Court. I have already pointed out that some restriction will have to be placed on the words a widow" in Section 2, Act 15 of 1856, for it would otherwise cover the case of a Mahomedan widow or a Christian widow who, nobody would contend, came within its true meaning.

20. As a summary of the Calcutta cases we find that the consensus of opinion is that Hindu law governs even those among whom a widow remarriage is permitted and there would be a forfeiture under the Hindu law whether the Act of 1856 applied or not. There is no discussion anywhere as to the effect of the preamble and the affect of the recognition by the legislature that there were certain exceptions in which a widow's marriage was regarded as valid, Now let us look to the Bombay cases. They are not many that were cited before us. In Parekh Banchor v. Vakhat [1887] 11 Bom. 119 which has already been cited in connexion with a Calcutta case it was held that Section 3 of the Act did not apply to the case of a widow who had remarried. The next case is the Full Bench case Vithu v. Gobinda [1898] 22 Bom. 321 (F.B.). With all respect the authority of this case is very much vitiated by the large assumption that was made that throughout India the practice prevailed that a widow of a caste among whom remarriage was allowed forfeited her first husband's property. This fact, it was further assumed, was known to the legislature and was acted upon in framing the Act. We may however point out that in none of the reported cases coming before this Court the plea was ever raised that the widow-claiming the inheritance of her first husband had forfeited, as a matter of custom her husband's property. This case in Vithu v. Gobinda [1898] 22 Bom. 321 (F.B.) goes to the full length of supporting the contention that Act 15 of 1856 applies. One of the learned Judges pointed out that the preamble was at variance with the body of the Act and therefore must give way to the latter. I have already discussed the point and pointed out that such was not the case.

21. Coming to Madras the case of Murugayi v. Viramakali [1877] 1 Mad. 226 is based on the view of the Hindu law that a widow on remarriage forfeits her first husband's-property. The matter came before a Full Bench in Vitta v. Chatakondu [1918] 41 Mad. 1078. Three Learned Judges took part in this case and there is no unanimity on any point decided. In this case a Hindus widow had become a Mahomedan and had remarried as a Mahomedan. It was held by two learned Judges, Seshagiri Ayyar, J., dissenting, that the claimant forfeited her right under the Hindu law. The two other learned Judges held that Act 15 of 1856 did not apply, the third learned Judge being of a contrary opinion. Seshagiri Ayyar, J., was of opinion that neither the Hindu law applied nor Section 2, Act 15, applied and there was no forfeiture. It can hardly be said that the Madras view is that Section 2, Act 15 of 1856, is applicable to the case before us. The question of custom does not seem to have been discussed in this case. In a later case of Gajapali Naidu v. Jeevammal A.I.B. 1929 Mad. 765, a learned single Judge held that Section 2 applied even where remarriage was permitted by the caste. Coming to the Lahore High Court, only one case has been cited before us, namely, the case of Mt. Parji v. Mangta A.I.R. 1930 Lah. 1023, it appears to have been held there that the Act did not apply in the circumstances of the; case like this, but there would be a forfeiture unless a contrary custom was proved. In Patna the view seems to, have been held that Section 2 applied to all cases of Hindu widow remarriages even if remarriage of a widow was permitted by the caste. In this case the widow had become a Mahomedan and had then remarried. The learned Judges remarked that it was a matter of first impression-and that the decisions in Calcutta, Madras-and Bombay were unanimous that a. Hindu widow lost her property. As pointed out in this judgment as to the decisions in Calcutta, Madras and Bombay, it cannot be said that the three High Courts are unanimous that the Act applied. In the Madras Full Bench case Vitta v. Chalalcondu [1918] 41 Mad. 1078 two learned Judges held that the Act did not apply. In the Calcutta Full Bench case Matungiin Gupta v. Ram Rutton Roy [1889] 11 All. 330, there is no unanimity and in Bombay, Vithu v. Gobinda [1898] 22 Bom. 321 (F.B.), the Act was held to be applicable because it was based on an alleged custom believed to have been universal in the whole of India. Then the learned Judge who delivered the judgment of the Bench agreed with the majority of the Judges in the Calcutta Full Bench case and held that Section 2 applied. But he mainly based his judgment on the Hindu law. He said:

Even if this interpretation (of Section 2 of Act 15 of 1856) be wrong...in such circumstances we are relegated in coming to a decision to the general rule of Hindu law.

22. The learned Judge does not discuss the effect of a custom and indeed it was not a case relating to a custom. I have tried to show above that on an independent reading of Act 15 of 1856 it is difficult to say that Section 2 applies to the case before us. I would decide accordingly and answer the question in the negative so far as Act 15 of 1856 is 'concerned. (Now I turn to the question of Hindu law. I have read the judgments of the various High Courts which deal with the Hindu law as affecting forfeiture of the widows' property and I am afraid I cannot concur with the view taken. The main argument advanced is this: a widow inherits because she is one-half of the body of her husband,) "Ardhanginee" as she is called) and if she remarries, she ceases to be one-half of her husband's body and therefore forfeits the right of inheritance. Nothing can be more fallacious, with all respect, than this argument when applied to the case of people who permit the remarriage of their widows. If these people believed that a wife was one-half of the body of her husband and on the death of her husband one-half of his body survives in the widow, how could they possibly have allowed the widow to remarry, how could possibly one, who was one half of one man's body, have become the one-half of another man's body by second marriage? If a true rule of Hindu law be that a widow inherits because of being one half of her husband's body, then a widow marriage cannot possibly be legal under the Hindu law. Yet not only is there a considerable body of opinion which regards the remarriage of a widow valid according to the Hindu Shashtras, but also there is a considerable body of people who are supposed to be within the fold of the Hindu religion and yet they permit widow marriages. It must follow that those people who allow their widows to make a valid remarriage never believe in the doctrine that a wife is a one-half of the body of the husband and that the widow survives* the husband as one-half of his body.

23. If we look at the discussion in the Mitakshara for example, as to the right of a wife to inherit, we shall see how difficult the struggle of the author of the Mitakshara was in granting a right of inheritance to the widow. In the Mitakshara as translated by Colebrooke, Ch. 2, Section 1, para. 5 to 29, are devoted to discussions of the conflicting texts and the conclusion is drawn in para. 30 that a chaste wife inherits. Thereafter the author discusses the question whether the widow inherits only a portion just enough for her maintenance or the whole of the husband's property. A farther discussion and struggle commences and in the last para. 39, the conclusion is drawn as follows:

Therefore it is a settled rule that a wedded wife being chaste takes the whole estate of a man who being separated from his coheirs and not subsequently united with them dies leaving no male issue.

24. Yijnaneswara does not even quote much less does he consider the text of Brihaspati quoted by Jimut Vahana in Dayabhaga (Ch. 11, Section 1, para. 2) which says that a wife inherits because she is one-half of her husband's body. In view of this discussion of what are all regarded as sacred but conflicting texts how can you say that this is the particular reason why a widow is permitted under the Hindu law to inherit and because that rule is broken in the case of a remarriage, the widow must forfeit what she has lawfully inherited? The Calcutta cases deal with Jimut Vahana's commentary the Dayabhagha, and even there you will find a discussion of the contradictory texts, some laying down the right of a widow to inherit and others denying it. The author of the Dayabhagha devotes no less than 66 paragraphs to the discussion and in para. 67 says: Thus has the widow's right of succession been explained" : see Ch. 11 of Dayabhagha (translation) as published by V. Kalyana. Ram Iyer & Co., edition of 1911 with introduction by Mr. Setlur. The man would indeed be bold who would say that the only reason why a wife inherits under the Hindu law on the death of her husband, is that she is one-half of her late husband's body. That no doubt is one of the reasons given by Jimut Vahan when he held that the widow should inherit. I have already pointed out that there was a considerable body of opinion against the right of a widow to inherit. The fact of the matter is that Hindu law was a growing set of rules and. at any particular time, the practice of a particular body of people residing at a particular place generally determined the character of the law. It is for this reason that so many schools of law have arisen, although each school of law holds in veneration the same sacred laws known as Smirthis, It is a matter of history and it is well known that the Hindu religion holds within its fold many people who have never had in any sense of the term, anything to do with the Aryan civilization. When the (Hindu) Aryans came to India and conquered the aboriginal races and spread their dominion, they naturally drew within their folds many of the aboriginal tribes who gradually out of sheer veneration started following some of the customs and manners of the Aryan races. The Aryan races never admitted most of these people entirely into their own folds and kept them apart by calling them Shudras, as persons belonging to the fourth class. It was only the privilege of the first threa classes, the Brahmans, the Kshatrias and Vaishias to read the Shastras and the sacred laws and to abide by them. The duties of the Sudras as laid down by Manu was to serve the three higher classes; Ch. 1, verse 91. Indeed Manu himself says in the clearest terms that his laws were meant mostly for the benefit of the three regenerate or higher classes and not for the Sudras. The Vedic rights were meant for the three higher castes alone who were known as twice-born ones. In Ch. 2, Section 24, Manu states that the twice-born people were to make their home within a particular area known as Arya Varta or the country of the Aryans," but the Sudra was allowed to adopt any country as his home. From Clause 26, Ch. 2, commence the rules for the purification of a child of the Dwija or twice-born class and the rules that fully relate to the duties of the twice-born. You may read through the whole of Manu and you will find that although in the beginning of s Smirthi he says that he is laying down the rules for all the four castes, he concerns himself with only the three higher castes and only distantly with the Sudras.

25. This being the case, it is not correct that the fine reasons which have been advanced from time to time by the sages as the basis of the Hindu law apply equally to the Sudras, simply because the latter call themselves Hindus. As I have already observed if we follow one of the reasons given by the founder of the Bengal School for the right of a widow to inherit, namely, her being one-half of her husband's body, she can never remarry and her remarriage cannot be valid. Thus it is clear that the caste which allows a widow to remarry does not recognize the reason given by some of the Rishis for the right of inheritance of a widow and therefore it is not right to say that as those reasons fail in the case of a remarriage, there should be a forfeiture. The castes amongst whom widow remarriage is recognized are mostly treated as Sudras and you cannot apply the fine reasonings of the Rishis for deducing the logical result of the acts of those who are practically beyond the closed precincts of the laws for the three twice-born castes. Gautama in Ch. 11, slokas 19 and 20 says that the administration of justice shall be regulated by the Vedas, the Institutes of the Sacred law, the Angas, the Uppavedas and the Puran. The laws of the country, castes and families, which are not opposed to these sacred records, have also authority. Cultivators, traders, herdsmen, money-lenders and artisans have authority to lay down rules for their respective classes: see p. 25 of Ghose's Hindu Law, Edn. 3 Vol. 1. Again there is a text of Vyasa quoted in Vyavahara Mayuka which runs as follows (see the same book p. 35.:

The custom of traders, artisans, etc., and those who earn their livelihood by means of agriculture or the stage are not capable of being ascertained by others. Disputes among them should be decided by those of their own class.

26. I think I have said enough to establish that even the framers of the Hindu law never professed to lay down rules for those who were never really within the narrow fold of the three regenerate classes. In the case of Santla Bewa v. Badaswari Dassi A.I.R. 1924 Cal. 98, the dispute was among Rajbansis and they were originally non-Aryans belonging to Kooch Bebar and a non-Hindu aboriginal tribe. It was because they had outwardly adopted the Hinduism as their religion the strict Hindu law was applied to them by the two learned Judges of the Calcutta High Court and on the ground of oneness of the husband and wife's body a widow was deprived of what she and inherited from her first husband. With all respect this was not administering the law of the parties before the Court but the law of a different people. Mr. T.N. Mittra in his Tagore Law Lectures delivered as early as 1879 on Hindu widows (at page 214) makes the following observations:

I have been considering up to this time the marriage of widows as authorized by Act 15 of 1856. There are however certain classes of Hindus among whom the marriage of a widow was allowed by custom. These I take it will be governed by the custom on the subject rather than by Act 15 of 1856, as among them the remarriage of the widow owes its origin to custom so the incidents connected with that marriage must be governed by the same custom.

27. This opinion implies that there can be no forfeiture unless there is a custom to that effect. Loss of caste or ostracizm for society or community for acts which bring on "degradation" under the Hindu law, cannot now involve loss of property (Act 21 of 1850). Under no system of law other than the strict Hindu law, as the orthodox Hindus understand it, it is possible to say that a widow who has inherited some property from her husband should forfeit it, because of her remarriage. No Mahomedan, no Christian, can think of it. Therefore it cannot be said that it is a matter of natural justice that a widow on remarriage should forfeit the property of her first husband. Unless therefore we have got most cogent reasons or a clear rule of law, for ordering a forfeiture, we must not do so. On the other hand, the widow is authorized to hold her inheritance for her life, by the following text of Katyayana. (quoted in Sarkar's Hindu Law, Edn. 6, p. 631). It has been held by the Privy Council that the injunction that she shall maintain chastity was only a direction the breach of which did not entail a forfeiture: see the case of Moniram Kolita [1880] 55 Cal. 776.

28. There is yet another ground for holding in favour of the widow. Assuming that the strict rule of Hindu law applies to a caste which does not recognize the strict Hindu law in that case, the remarriage of a widow can only be regarded as an immoral act. The orthodox Hindus would not recognize the marriage as valid although the caste people may recognize it as valid and although the British Indian Courts may regard it as valid. It has been held by their Lordships of the Privy Council that a widow who has once inherited her husband's property does not forfeit it by reason of her subsequent immorality : see Moniram Kolita v. Koeri Kolitani [1880] 55 Cal. 776. The widow after inheritance may lead openly the life of a common prostitute yet she may not forfeit her property under the Hindu law as interpreted by their Lordships of the Privy Council. Yet it is said that if instead of leading the life of a common prostitute, the widow should remarry and thereby lead what the world generally regards as a moral life, must it follow that she should forfeit her first husband's property? The orthodox Hindu, as I have said, does not regard the marriage as valid, to him it is no marriage then why should the marriage be regarded as anything worse than the grossest immorality.? Can it be an act of justice to say that living as the wife of one single man would be followed by a punishment, while the grossest immorality cannot be? It was argued that this may be so but such was the Hindu law.

29. I as a Hindu Judge refuse to believe that such is the Hindu law. I emphatically deny that such is the Hindu law. The Hindu law lays down not at one place, but at many places, that the Shashtras can never be interpreted apart from dictates of conscience and reason. In Ch. 2, Section 12, Manu says : * * * which when translated would mean:

the Vedas, the Smirthi, good, conduct and the dictates of one's own conscience are called by the wise the four sources of dharma. Dharma is nothing but good law.

30. In Sanskrit the word "dharma" is the proper rendering for the word "law." Again Brihaspati says : * * * which when translated means:

do not arrive at a conclusion by merely discussing the Shastra or following its letter for if yon follow the law or the Shastrag without recourse to reasons, you incur thereby a sin : see Ghosh's Hindu Law. Edn. 3, p. 1034.

31. Again Narada says : * * * Ch. 4, Section 40, quoted by Ghosh in his Hindu Law, Edn. 8, p. 1030. This means that where the texts of Shastras are conflicting one should apply one's own reason. In the teeth of these injunctions to follow your conscience and your reasons, are you justified in saying that it is in the Hindu law that the grossest immorality would not entail a forfeiture of property and yet a remarriage would? The only answer can be an emphatic negative. For the reasons given above I hold strongly that under the Hindu law as strictly interpreted or as liberally interpreted, there can be no forfeiture and the answer to the question must be in the negative.

King, J.

32. The chief question for our determination is whether a Hindu widow who remarries in accordance with the custom of her caste, forfeits thereby her rights in the estate of her first husband under Section 2, Hindu Widows Remarriage Act, 1856. In other words the question is whether Section 2, Act 15 of 1856, applies to a Hindu widow, who can remarry in accordance with the custom of her caste.

33. The language of Section 2 is certainly very wide, and if the section is read alone, without regard to the preamble and to the other sections of the Act, it would undoubtedly apply to the present case. Section 2 purports to lay down a general rule that all rights and interests which "any widow" may have in her deceased husband's property shall upon her remarriage cease and determine as if she had then died. The words "any widow" would not only cover the case of a Hindu widow who is authorized by custom to remarry, but would also apply to a Christian or Muslim widow who had never been a Hindu at any time. I think it could not be seriously argued that a woman who has been a Muslim from her childhood and who married a Muslim husband who died in her lifetime would forfeit all rights in her deceased husband's property under Section 2, Hindu Widows Remarriage Act, if she married again. It is clear therefore that the wide language of Section 2 must be controlled and restricted with reference to the preamble and to the provisions of the Act as a whole. The only question is how far should the language be restricted. The object and the scope of the Act can be ascertained from the preamble. The Act is described as an Act to remove all legal obstacles to the marriage of Hindu widows.'' It is further explained that by the law administered in the civil Courts, Hindu widows with certain exceptions are held to bet by reason of their having been once married incapable of contracting a second valid marriage, and as many Hindus believe that this imputed legal incapacity is not in accordance with a true interpretation of the precepts of their religion, and as it is just to relieve all such Hindus from this legal incapacity of which they complain and the removal of all legal obstacles to the marriage of Hindu widows will tend to the promotion of good morals and the public welfare therefore the Act has been passed.

34. It is clear therefore that the legislature intended to remove all legal obstacles to the marriage of Hindu widows. It could not have been intended to apply to Christian widows or Muslim widows who are able to remarry without taking advantage of the provisions of the Act. For the same reason I think the Act could not have been intended to apply to Hindu widows who were able to remarry in accordance with the custom of their caste without taking advantage of the provisions of this Act. Sections 1 and 2, seem to be closely connected and enact, that a Hindu widow who is not permitted by custom or by any interpretation of Hindu law to remarry may nevertheless remarry, but if she does so she must forfeit all rights and interests in her deceased husband's property. In other words I think Section 2 applies only to those Hindus widows who would not have been able to marry if the Act had not been passed, and does not apply to Hindu widows who can remarry in accordance with the custom, quite apart from anything contained in the Act. The Act is an enabling Act for the benefit of Hindu widows who would not otherwise be allowed to remarry, and I think it could not have been the intention of the legislature to impose a penalty of forfeiture upon Hindu widows who can remarry in accordance with the custom and who need not rely upon the provisions of the Act to validate their remarriage. The Act was intended to remove legal obstacles to the marriage of Hindu widows and not to impose liability upon widows who could remarry apart from the provisions of the Act.

35. This interpretation of Section 2 of the Act has been consistently adopted by the Allahabad High Court in a long series of decisions beginning with Harsaran Das v. Nandi [1889] 11 All. 330. Certain Judges have expressed doubts regarding the correctness of this interpretation, but the current of authority has consistently been followed. There has been a difference of opinion between the Judges of the Calcutta High Court on this point. The most important case is Matungini Gupta v. Ram Ratan Roy [1892] 19 Cal. 289 (F.B.), which was decided by a Full Bench. In that case a Hindu widow married a second husband not a Hindu, in the form provided by Act 3 of 1872. The majority of the Full Bench held that by her second marriage she forfeited her interest in her first husband's estate under Section 2, Act 15 of 1856. This ruling is not directly applicable to the question now under consideration because it did not deal with the case of a Hindu widow who remarried in accordance with the custom of her caste. The learned Judges however had to consider the meaning and scope of Section 2, Act 15 of 1856 and some of their observations are applicable to the present question. Wilson, J., in his referring order (at p. 294) holds that Section 2 refers to any widow falling within the class to which the Act applies and at p. 293 he holds that the Act applies to Hindu widows other than those who could, without the aid of the Act, remarry according to the custom of their caste.

36. His view is therefore that Section 2 does not apply to a Hindu widow who could remarry without the aid of the Act according to the custom of her caste. Banerji, J., (on p. 296) holds that the words "any widow" in Section 2 must be taken to mean any widow to whom the Act applies and for whom it was intended. It is doubtful whether he would have held the section to apply to a Hindu widow who could marry according to the custom of her caste, as it could hardly be held that the Act was intended for such a widow. The majority of the Full Bench interpreted Section 2 in a wider sense and held that the section applied to all persons who being Hindus become widows. According to that interpretation Section 2 would no doubt apply to a Hindu widow who is entitled to remarry according to the custom of her caste, but it must be remembered that the learned Judges were not directly concerned with that question. Prinsep, J., dissented from the opinion of the majority [and held that Section 2 was limited only to the cases provided for by the Act, namely, Hindu widows remarrying as Hindus under Hindu law as provided by. that Act. In his view therefore Section 2 would not apply to a Hindu widow remarrying according to custom without the aid of the Act. It will be seen therefore that there was a conflict of opinion between the learned Judges on the point whether Section 2 would be applicable to a Hindu widow who could remarry without the aid of the Act.

37. In Rasul Jahan Begum v. Ram Saran Singh [1895] 22 Cal. 589 it was held that a Hindu widow on remarriage forfeits the estate inherited from her former husband although according to custom prevailing in her caste a remarriage is permissible. This decision is based upon the general principles of Hindu law and not upon Section 2, Act 15 of 1856. It is true that at the end of the judgment their Lordships referred to Ear Saran Das v. Nandi [1889] 11 All. 330, and dissented from it, but they did not expressly dissent from the view that Section 2 of the Act does not apply. Their opinion seems to have been that whether Section 2 applies or not a Hindu widow upon her remarriage forfeits her interest in her deceased husband's estate under the general principles of Hindu law. In Ganga Prasad Sahu v. Jhalo [1911] 38 Cal. 862 the learned Judges appear to agree with the Bombay High Court in holding that Section 3, Act 15 of 1856, has no application to a case where the widow belongs to a caste in which remarriage is permitted, the object of the statute being to enable widows, who were unable to marry previously to remarry, the statute ought to be considered as a whole, and such of its provisions as impose a disability ought not to be applied to cases where it is needless for the parties to seek the benefit of the provisions which recognise the right of a widow to remarry. They proceed to point out however that even if Section 2 does not apply to such a case the same result might follow from an application of the fundamental rules of Hindu law. In Santola Bewa v. Badaswari Dasi A.I.R. 1924 Cal. 98 it was held that Eajbansi widow after remarriage forfeits her deceased husband's estate even though there is a custom of remarriage in her caste. The learned Judges held that Section 2 of the Act includes even a widow of a caste in which remarriages are permitted by caste custom. In support of their view they state that it is a fact that in almost; all castes in which a remarriage is allowed by custom such marriages are followed by forfeiture of the first husband's estate. No authority is given for the statement of fact and there is reason to doubt as I shall presently show whether the alleged custom of forfeiture of the first husband's estate is by any means so universal as alleged.

38. The earlier view of the Bombay High Court in Parekh Ranchor v. Bai Vakhat [1887] 11 Bom. 119 was that Section 3, Act 15 of 1856, has no application to the case of a widow belonging to a caste in which remarriage is permitted. If Section 3 does not apply to such a case. I think it would follow that Section 2 would also not apply. In the later Full Bench case Vithu v. Govinda [1898] 22 Bom. 321 (F.B.) the contrary view was taken, and it was expressly held that "under Section 2 a Hindu widow belonging to a caste in which remarriage has always been allowed who has inherited property from her son, forfeits by remarriage her interest in such property. In discussing the interpretation of Act 15 of 1856 it was admitted that the preamble to the 'Act was at variance with its enacting clauses. The preamble evidently favoured the view that the Act was not intended for all classes of Hindu widows, whereas the enacting clauses are as wide and general as they can be. Their Lordships observed that the variation between the preamble and the enacting clauses was not the result of any oversight, but that the legislature deliberately used the more general words in Section 2 of the Act, because it was found that while the custom of prohibiting remarriage obtained in certain castes, and did not obtain in others, in the matter of forfeiture by the widow of all interest in her first husband's estate, there was no such divergence. They referred to certain researches into the customs of castes in the Bombay Dekhan which indicated that there was not a single caste in which any custom to the contrary prevailed. Hence their Lordships concluded that Section 2 was only declaring by statute what was already a universal practice. With due respect to their Lordships I do not think it can safely be inferred that even if the legislature knew that among the tribes or castes of the Bombay Dekhan a custom was in force that a Hindu widow should forfeit her rights in her husband's estate upon her remarriage, this would furnish an adequate ground for enacting by a statute applicable to the whole of British India, the rule that forfeiture of interest in her deceased husband's estate must be a necessary consequence of the remarriage of every Hindu widow whatever the custom of her tribe or caste may be. The Bombay Dekkhan is only a small part of British India and it appears that the rule of forfeiture is by no means universal in this province at least among those castes in which widows are permitted to remarry. In most of the long series of cases decided by the Allahabad High Court the plea was never raised, in cases where a custom of remarriage was admitted, that remarriage entailed forfeiture of interests in her deceased husband's estate.

39. If forfeiture of such interests was a necessary incident of the custom of remarriage it is inconceivable that such a customary incident should not have been pleaded. In Ranjit v. Radha Rani [1898] 20 All. 476, a custom of forfeiture upon remarriage was alleged, but it was held to have been disproved upon the evidence. In Mangat v. Bharto A.I.R. 1927 All. 523, it was held that when a widow remarried according to custom then it was customary for her to retain her interest in her do-ceased husband's estate. The same custom of retaining her interest in her deceased husband's estate, was proved in Mt. Rmdei v. Mt. Kishen Dei [1916]32 I.C. 338. In Narpat v. Janka A.I.R. 1921 Oudh. 130, it was held that forfeiture was not one of legal incidents of the custom under which an Ahir widow is allowed to remarry. It appears therefore from an examination of the cases on this point in the United Provinces that where the custom of remarriage has been admitted or proved, then the custom of forfeiture has usually not been even pleaded as a legal incident of the custom of remarriage when it has been pleaded it has never been proved and in some cases a contrary custom has been proved affirmatively. In my opinion therefore it is erroneous to assume that in cases where Hindu widows are allowed by custom to remarry forfeiture of interests in their deceased husband's estate is niversally recognized as a legal incident of the custom of remarriage. It cannot therefore be safely inferred that the legislature when enacting Section 2, Act 15 of 1856, in very wide terms were only giving statutory sanction to a universal custom. The authority of the Bombay and Calcutta rulings is weakened by their reliance upon an erroneous assumption,

40. There has been some difference of opinion in the Madras High Court on the question whether Section 2 would apply to a case of this sort. The most important case is Vitta Tayaramma v. Ghatta Kondu Sivayya [1918] 41 Mad. 1078. This dealt with a case where a Hindu widow became a Mahomedan and married a Mahomedan husband, so it is not directly in point. But the views expressed by the Judges on the applicability of Section 2 have some bearing upon the question before us. Phillips, J., (at p. 1080) held that Section 2 was applicable to the facts of that case. Krishuan, J., took a contrary view. He remarked that having regard to the scope and object of the Act, as stated in the preamble and seeing that it is a purely enabling Act, its provisions should not be applied to affect the property of persons who do not and could not take advantage of it. He came to the conclusion that the word remarriage" in Section 2 referred only to a remarriage under the Act, and not to any remarriage whatsoever. He clearly held that Section 2 would not apply to the case of a Hindu widow who is permitted by custom to remarry and he dissented from the reasoning in the Bombay Full Bench case in the following words:

With all deference I am unable to follow this method of interpretation nor am I satisfied that the practice of widows forfeiting their right in their first husbands' property on remarriage is so universal in India as is stated. If there are castes which allow widows to remarry and keep their estates at the same time (and I am not sure there are not any) I can see no reason to think that the legislature in enacting Act 15 of 1856 intended to interfere with the rights of such widow.

41. I emphatically enldorse these remarks. Wallis, J., thought that; Section 2 is wide enough to cover the case of any Hindu widow remarrying, whether or not her marriage would otherwise be prohibited by any custom or interpretation of Hindu law. The other two learned Judges Oldfield, J., and Seshagiri Aiyar, J., both held that Section 2 would not apply to the facts of the case before them and the remarks of Oldfield, J., would also clearly apply to the case of a Hindu widow permitted by custom to remarry, in view of this conflict of opinion it cannot be said that the Madras High Court are committed to the view that Section 2 applies to Hindu widows permitted by custom to remarry. The Lahore High Court in Mt. Parji v. Mongta A.I.E. 1930 Lah. 1023 held that the Act does not apply to the-case of a Hindu widow who remarries according to the custom of her caste. The Patna High Court in Mt. Suraj Jote Kuar v. Mt. Attar Kumari A.I.R. 1922 Pat. 378 took the contrary view following the Calcutta High Court in Matungini Gupta v. Ram Ruttan Roy [1877] 1 Mad. 226. The Judicial Commissioner's Court and Chief Court of Oudh have consistently taken the view that Section 2 would not apply to a case of this sort. I may refer to Narpat v. Janka A.I.R. 1921 Oudh. 130, Bhagwan Din v. Mt. lndrani A.I.R. 1921 Oudh. 233 and Ram Lal v. Mt. Jwala A.I.R. 1928 Oudh. 338. In spite of the fact that certain Judges of certain other High Courts have taken a contrary view I think the long series of Allahabad rulings which take the view that Section 2 of the Act does not apply to the case of a widow who is permitted to remarry by the custom of her caste are correct. There is no adequate ground for upsetting the law which has been settled by judicial authority in this province.

42. A further question arises whether the widow upon her remarriage would not forfeit her interest in her deceased husband's estate under the general principles of Hindu law even if she did not do so under Section 2, Act 15 of 1856. It appears to me that the general principles of strict Hindu law could not be properly applicable to a caste in which a custom of remarriage is admitted. If the members of the caste recognize the remarriage of a widow as valid then it follows that they do not accept the theories of orthodox Hinduism which would make a legal remarriage impossible. If such theories are rejected by the caste for the purpose of permitting remarriage, it seems illogical to invoke-the very same theories for the purpose of holding that if the widow does remarry then she must forfeit her rights in her deceased husband's estate. Mukerji, J., has dealt with this aspect of the case at length and I need only say that I concur in the view which he has expressed. In my opinion if there is a recognized custom permitting a widow to remarry then there must also be a custom either of retention of interests or forfeiture of interests in her deceased husband's estate. Retention or forfeiture of interests is merely a legal incident of the custom of remarriage, and in cases where a Hindu widow's right to remarry is governed by the custom of her caste then I think the question of retention 01 forfeiture of her interests in her deceased husband's estate must also be governed by custom. Unless a custom of forfeiture is proved then the widow would retain the interests which have vested in her. My answer to the reference is No; unless a custom is proved whereby the widow forfeits her rights in the estate of her first husband in consequence of her remarriage.

43. In our opinion Section 2, Act 15 of 1856, does not apply to the case of those widows who are entitled under the custom of their caste to remarry and are not bound to take advantage of the provisions of the Act. Accordingly there is no forfeiture of the Hindu widow's estate on remarriage under the Act in such a case. We are further of opinion that the proof of mere custom or remarriage would not be sufficient to involve forfeiture under the Hindu law, and that it would be necessary for the party claiming that the estate has been forfeited on account of remarriage to prove that there is a custom of such forfeiture in such a contingency. Let our answer to the reference be sent to the Bench concerned.