Abdual Hakim Khan, J.

1. This appeal arises out of proceedings taken under S. 44, Guardians & Wards Act, Gwalior of St. 1970 in the Ct. Sessions Judge Morena in Civ. Misc. Case No. 14 of 2004.

2. The rasp applt., Ochha, submitted an appln. alleging that the two minor girls, Santo aged 8 years & Basanti aged 6 years, were the daughters of Angad, who was dead. Their mother, Mt. Ram Kunwari had remarried & was wasting the minors property. He says that he is a cousin of Angad & that he should be appointed guardian of the persona & property of the minors. In the course of the proceedings, the resp. gave another appln. dated 29-11-48 saying that on 5-11-48, the mother had sold a house belonging to the minors & this was proof enough that she was committing waste of the minors property. After an enquiry the Ct. accepted the petn. & made the reap., the guardian as desired. The mother of the girls, Mt. Ram Kunwari has now preferred this appeal.

3. It is on three grounds that the Ct. has (held that the mother has forfeited her right to the guardianship of her minor girls. (1) Thatshe has remarried. (2) That her remarriage will result in the excommunication of her minor children. (3) That she has sold minors property. I propose to examine all the three grounds one by one.

4. The first question to be decided is whether by remarriage a mother forfeits her rights of guardianship of her children.

5. It is admitted that the parties are Dhobies & according to the category into which Hindus and divided they are Sudras. In his appln. the resp. avers that the woman has contracted a form of marriage, widely prevalent in the former Gwalior territory, known as Dhareecha. This form of marriage has received judicial recognition & the late Gwalior Govt. had regulated it by framing certain rules known as In Ganga Prasad v. Ramasray, 38 Cal. 862 : (10 I.C. 69), the point has been settled that by the mere fact of her remarriage, the widow does not lose her right of guardianship over her children. In view of this, the remarriage of Mt. Ram Kunwar cannot be the reason of the forfeiture of her right to remain the guardian.

6. Regarding the second point, in which the plea of excommunication has been raised, the resp. has examined two witnesses, Mooni & Sarman. But they are not the Punchas of the caste & their statement lacks the authority behind it. On an examination of their testimony I find it to be most superficial. They have not even said as to what brotherhood they belong & in what way the brotherhood of the man who married Mt. Ram Kunwar differs from them. It is understandable that if the mother has remarried below her rank, it may affect the status of her children from her second marriage, but how Joan it affect her children of former wedlock. Her former children, being born of marriage which is in no way challenged, cannot suffer from any lowering of the status. I am afraid that the plea of excommunication is an eyewash. [7] Regarding the third ground, namely, that she has sold minors property, I am afraid the question has not at all been seriously considered. From the record of the case, it appears that Angad died leaving a widow (Mt. Ram Kunwar) who is the applt., two unmarried minor daughters, the question of whose guardianship is under consideration & two married daughters, who are not represented in this case. According to the order of succession among Hindus (see S. 43, Mullahs Hindu Law, 1946 Edn.) in the absence of sons, grandsons & great grandsons, it is the widow, who inherits prior to daughters. So on Angads death, his property devolved upon his widow, the appelt. The learned Sea. J. does not say anything in his judgment as to how he has come to regard the property of Angad to belong to minor daughters when the widow is alive. This aspect of the matter seems to have escaped his attention.

8. Although both the learned counsel have not raised the question, yet the effect of remarriage on the right of the widow to possess her late husbands property may be considered.

9. There is a conflict of opinion in British Indian H.Cs. on this point. The conflict, in the main, is with regard to the question as to whether the Act xv [15] of 1856 (Hindu Widows Remarriage Act) is applicable to all Hindu widows or only to such Hindu widows, who prior to the Act were not entitled under the custom of their caste to remarry. The H.C. of Allahabad & the Chief Ct. of Oudh have held that the Act applies only to such widows who prior to it suffered from the disability of remarriage & that the Act does not determine the rights of widows among whom the custom of remarriage prevailed. Other H.Cs. on the contrary, held that the Act applied to all widows & that according to S. 2 of the Act a widow who remarried forfeited thereby her rights in the estate of her first husband. (Sea Bhola Umar v. Mt. Kausilla, : 55 ALL. 24 : (A.I.R. 1932 ALL. 617 P.B.), Ram Lall v. Jawala, : 3 Luck. 610: (A.I.R. 1928 Oudh 338).

10. I have carefully gone through all the rulings on the point. I am inclined to adopt the view of the Allahabad & Luknow H.Cs.

11. With due respect to other H.Cs. I must say that they have not at all considered the preamble to the Hindu Widows Remarriage Act, 1856. The preamble gives a clear definition to the Act. It says:

Whereas it is known that by law .... Hindu widows, with certain exceptions, are held to be incapable of contracting a second valid marriage.....& whereas it is just to relieve all such Hindus from this legal incapacity it is enacted as follows, etc.

The words I have underlined (hare in italics) unmistakably go to show that this Act did not apply to the case of a widow whose remarriage was permitted by her caste. The law in the form of custom already existed for her. The preamble recognised that there were certain exceptions to the general rule which prohibited widows to remarry. In the circumstances, it may be assumed that the intention was to remove the obstacle where it existed and not to create an obstacle in the way of those who did not need 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 husband from holding the estate.

12. In a Full Bench case Bhola Umar v. Kausilla, : 55 ALL. 24 at p. 49 : (A.I.R. 1932 ALL. 617 F.B.), it has been held that

When nothing more than a mere custom of remarriage is established, there is no presumption that under the Hindu law, the widow forfeits the estate (of her husband). The party who la alleging that there has been a forfeiture must establish the further incident of the custom that forfeiture is a necessary consequence.

13. The petitioner in this case has not challenged the validity of the Dharicha marriage, nor has he denied the custom of remarriage, nor has he set up a custom that remarriage entails forfeiture of the former husbands estate, and we must remember that the parties to the case tare Dhobies and are Sudras. In all these circumstances, the appellant retains her interest in her husbands property and her girls have no claim to it during her life time.

14. In Bhola Umar v. Kausilla, : 55 ALL. 24 at p. 25: (A.I.R. 1932 ALL, 617 F.B.), it has been said

that there is no express text which lays down that a forfeiture of the Hindu widows estate will follow upon her remarriage.

Let us consider the question from another point) of view.

15. In Moni Ram v. Keri Kolita, 5 Cal. 776: (7 I.A. 115 P.C.), it has been laid down by their Lordships of the Privy Council that a widow who has once inherited her husbands property does not forfeit it by reason of her subsequent immorality. When unchastity of the widow does not involve forfeiture, one may venture to suggest that remarriage too should not place a woman in a worse position. If a widow remarries and leads according to the accepted notions of humanity at large, a moral life, why should she be penalised and placed in a worse position than one who professedly leads an unchaste life. It would amount to putting a premium on unchastity which cannot be the object of any society or of any law. Even the orthodox mind can be logically reconciled to this proposition. To the orthodox mind, a remarriage is no marriage at all. In other words, to him, a remarriage is a gross immorality but when immorality of a widow does not divest the estate, the immorality consequent upon remarriage likewise should not forfeit her right to her husbands estate. In an altruistic sense on account of past associations a woman always remains widow of her deceased husband even after her re-marriage.

16. In the view, I take of the matter, the appeal is allowed with costs throughout and the application of the respondent under S. 44, Guardian and Wards Act, referred to above is rejected.