Authored By : William Comer Petheram, Arthur Wilson, JamesQuain Pigot, S.C. Ghose, Henry Thoby Princep

William Comer Petheram, C.J.

1. The question submitted for the opinion of this Bench, asstated by Mr. Justice WILSON, is as follows:

In this case a Hindu widow inherited the property of herhusband, taking therein the estate of a Hindu widow. She afterwards married asecond husband, not a Hindu, in the form provided by Act III of 1872, havingfirst made a declaration, as required by Section 10 of the Act, that she wasnot a Hindu. The question is whether, by that marriage, she forfeited herinterest in her first husbands estate in favour of the next heir.

2. I think that the decision in Gopal Singh v. Dhungazee 3W.R. 306 is wrong, and I agree with the learned Judges who referred thequestion that it must be answered in the affirmative. It is, I think, concludedby Section 2 of the Hindu Widows Marriage Act, XV of 1856, and I do not thinkit necessary to express any opinion on the other points which have beenmentioned in argument and which are discussed in the judgment of the Judges whoconstituted the referring Bench.

3. The first two sections of the Act are as follow:

1. "No marriage contracted between Hindus shall beinvalid, and the issue of no such marriage shall be illegitimate, by reason ofthe woman having been previously married or betrothed to another person who wasdead at the time of such marriage, any custom and any interpretation of Hindulaw to the contrary notwithstanding."

2. "All rights and interests which any widow may havein her deceased husbands property by way of maintenance or by inheritance toher husband or to his lineal successors, or by virtue of any will ortestamentary disposition conferring upon her, without express permission tore-marry, only a limited interest in such property, with no power of alienatingthe same, shall, upon her re-marriage, cease and determine as if she had thendied; and the next heirs of her deceased husband or other persons entitled tothe property on her death shall thereupon succeed to the same."

4. Section 1 no doubt relates to marriages between Hindus,but Section 2 includes all widows who are within the scope of the Act, that isto say, all persons who being Hindus become widows, and it must follow fromthis that if any such widow marries, she is deprived by the section of theestate which she inherited from her Hindu husband. The words areclear--"All rights which any widow may have in her deceased husbandsproperty by inheritance to her husband;" the estate which a Hindu widowtakes upon her husbands death in his property is an estate which she takes byinheritance to him, and such estate is expressly determined by the section.

5. My answer to the question is, that by marriage the widowforfeited her estate in her first husbands property in favour of the nextheir.

6. The result will be that the appeal must be allowed andthe decree of the First Court reinstated with costs of the three hearings inthis Court and the costs of the Lower Appellate Court.

Arthur Wilson, J.

7. I agree. I think it unnecessary to say more, as Iexpressed my views in making the reference.

James Quain Pigot, J.

8. I agree.

S.C. Ghose, J.

9. I agree in the answer which the Chief Justice has givento the question referred.

Henry Thoby Princep, J.

10. The inclination of my own opinion has been alwaysagainst the view expressed by my two learned colleagues who joined with me inreferring this case to a Full Bench, and I still have doubts which the furtherargument has failed entirely to remove.

11. Act XV of 1856 is entitled an Act to remove all legalobstacles to the marriage of Hindu widows, and it provides for such marriagesaccording to the rites and ceremonies current amongst Hindus. The widow in thecase before us ceased to be a Hindu by a public declaration abjuring thatreligion, and her re-marriage was under Act III of 1872, entitled "an Actto provide a form of marriage in certain cases."

12. That Act was passed by the Legislature expressly forcases of this description. If the widow had merely renounced the Hindureligion, admittedly she would not have ceased to hold her deceased husbandsestate. She could not, after her conversion to another religion, confer on himwhat are known in Hindu Law as spiritual benefits, but it is said she wouldstill be regarded as a part of her husbands body, and as such in possession ofhis wordly properties. It has been contended that her title is only during herwidowhood, durante viduitate, in consequence of the principle under which sheis recognized as proprietress after her husbands death. It is difficult tounderstand how that legal fiction can be maintained if after her husbandsdeath the widow were to become a Muhammadan or Christian. The Statute, however(Act XXI of 1850), has provided that a change of religion shall not operate asa forfeiture, and according to the opinions, in which I am unable to agree, are-marriage not as a Hindu would have that effect. We have also the anomalythat, although she may change her religion and cease to be a Hindu, so long asshe remains a widow, she continues as a Hindu to hold her husbands estate thatshe does not forfeit this by leading a notoriously unchaste life see MoniramKolita v. Keri Kolitani I.L.R. Cal. 776 but that if she re-marries sheforfeits, because she ceases to be a widow, and because the conditions underwhich she retained her husbands estate as part of his body no longer exist. Ihave the misfortune of being unable to agree that Section 2, Act XV of 1856, isof general application to all Hindu widows remarrying, for I read it as beinglimited only to the cases provided for by that Act, viz., Hindu widowsre-marrying as Hindus under Hindu law as provided by that Act. Having stillthese doubts regarding the views expressed by my learned colleagues, I regretto be unable to concur in the judgment delivered. A.A.C.

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