This article is written by Gautam Badlani, a student at Chanakya National Law University, Patna. This article provides a detailed analysis of the various provisions of the Hindu Widows Remarriage Act, 1856. It also explains the reasons for the repeal of the Act. Moreover, the article highlights the suggestions made by the Law Commission with respect to the relevancy of the Act.
It has been published by Rachit Garg.
Introduction
During the British period, there were many customs and transitions that discriminated against a Hindu widow. Those customs placed obstacles in the way of the remarriage of a Hindu widow. In order to protect the rights and interests of the Hindu widow, the Hindu Widows Remarriage Act was enacted in 1856. This Act is regarded as a major reform that legalised the remarriage of Hindu widows.
This article explains the various provisions of the Act. Moreover, it also highlights some landmark judgements relating to the validity of widow remarriage.
Historical background of the Hindu Widows Remarriage Act
During the 1800s, Hindu widows were not allowed to remarry. The Hindu females were forced to live their lives with hardships after the deaths of their husbands. In many cases, the heads of the widows were shaved, and they were forced to wear only white saris. They were not even allowed to attend any functions or celebrate any festivals.
Since child marriages were also prevalent during the 1800s, there were many instances where the Hindu widow was a minor. At a very young age, the widow was forced to live a life full of extremities.
The widows were considered to be incapable of entering into a second marriage. If the widow contracted a second marriage, then the children born out of such a marriage were regarded as illegitimate. These children were also denied inheritance rights.
Social reformers
In order to eliminate these practices, social reformers campaigned for legal safeguards. Subsequently, the Hindu Widows Remarriage Act was enacted. The credit for the enactment of this Act is often attributed to social reformer Ishwar Chandra. Other reformers who contributed to the movement were Vidyasagar, Ishnu Shastri Pandit, and Karsondas Mulji.
Overview of the Hindu Widows Remarriage Act, 1856
Section 1
Section 1 of the Act provides that the marriage of a Hindu widow will not be invalidated by any custom.
The primary objective of this Section is to nullify those customs that bar a Hindu widow from entering into a second marriage after the death of her husband.
Section 6
Section 6 provides that all ceremonies that are performed in the first marriage of a Hindu female would also constitute a valid marriage if they were performed in the marriage of a Hindu widow. A marriage cannot be declared invalid on the ground that such ceremonies are not applicable in cases of widow remarriage.
Inheritance rights
Sections 2, 4, and 5 deal with the inheritance rights of the widow.
Section 2 states that the inheritance rights that a Hindu widow may have by virtue of any will or testamentary disposition will cease upon her remarriage. Any rights that the widow may have in the property of her deceased husband will be determined as if she had died.
Thus, after the remarriage, the widow will have no right to maintenance out of the estate of her deceased husband. The widow, upon remarriage, loses all interest in her deceased husband’s estate. If a Hindu widow was incapable of inheriting any property because of her being childless, then anything provided in the Act would not render her capable of inheritance.
Section 4 of the Act provides that a childless widow will not be rendered capable of inheriting the property if, at the time of the passing of the Act, she was not capable of inheriting such property.
Section 5 states that, except in the aforementioned two situations, any property or other rights that a Hindu widow may have will not be forfeited upon her remarriage.
However, this provision was rendered ineffective after the passing of the Hindu Succession Act, 1956. The 1956 Act made no distinction between the rights of a childless widow and other widows. Moreover, since most of the rights concerning a Hindu widow have been codified, Section 5 of the Widow Remarriage Act was also rendered archaic.
Guardianship
Section 3 of the Act provides a list of persons who can petition the court for the appointment of a guardian of the children of the deceased husband after the remarriage of the Hindu widow. The list of relatives include-
- the father or mother of the deceased husband,
- the paternal grandfather or paternal grandmother of the deceased husband,
- any other male relative.
However, the court can be approached for the appointment of the guardian only if the widow or any other relative has not been constituted as a guardian by any will of the deceased husband. The guardian so appointed would be responsible for taking care of the minor children till they attain majority.
However, the issue of guardianship is now dealt with under the Hindu Minority and Guardianship Act, 1956. This Act does not provide remarriage as a ground for denying guardianship of the children to the widow.
Remarriage of a minor Hindu widow
Section 7 provides that if the remarrying Hindu widow is a minor whose marriage is not consummated, then she cannot remarry without the prior consent of her father. The Section provides that if the father of the widow is dead, then the consent of the paternal grandfather would be required. In the absence of the paternal grandfather, the consent of the widow’s mother has to be obtained. If neither of these relatives is available, then the consent of the brother has to be obtained, and in the absence of the brother, the consent of the next male relative has to be obtained.
The remarriage of a minor Hindu widow without the consent of her father or any other relative, as provided under Section 7, would be voidable. Thus, such a marriage can be declared voidable by any court of competent jurisdiction.
Moreover, persons who abet any remarriage contrary to the provisions of Section 7 would be punishable with up to 1 year of imprisonment and a fine. When any dispute relating to the validity of the remarriage of a minor widow is brought before the court, the court will presume that the marriage was conducted with the consent of her relatives. The burden is on the petitioners to prove that there was no consent from the widow’s father or other relative and that the marriage was not in accordance with the provisions of Section 7.
In the case of a widow of full age, the consent of the widow would be sufficient, and the consent of no relative is required.
The Law Commission of India and its report on the 1856 Act
The 81st Report (1979) of the Law Commission of India recommended the repeal of the Act. The primary reason given by the Law Commission for the repeal was that the Act had become obsolete after the enactment of subsequent laws codifying Hindu personal law. The Commission referred to the following Act:
- Hindu Marriage Act, 1955
- Hindu Minority and Guardianship Act, 1956
- Hindu Succession Act, 1956
- Hindu Adoption and Maintenance Act, 1956
These acts modified the laws and customs dealt with under Hindu law. Moreover, these acts had an overriding effect on the preceding statutes. Section 4 of the Hindu Marriage Act, for instance, deals with the overriding effect of the Act over preceding laws. It provides that the Act would supersede any previous law dealing with matters covered by the Act. If any previous law is inconsistent with the provisions of the Act, then it will cease to apply to Hindus. Similarly, Section 4 of the Hindu Adoption and Maintenance Act provides that all preceding laws dealing with matters covered under the Act will cease to have effect.
Consequently, they superseded the provisions of the Hindu Widow Remarriage Act. Thus, the Law Commission was of the opinion that the Widow Remarriage Act had become obsolete and must be repealed.
The Commission also highlighted some drawbacks of the Widow Remarriage Act. The Act denied inheritance rights to a childless widow. The Commission was of the opinion that such a practise needed to be eliminated.
Amendments to the Hindu Widows Remarriage Act
Hindu Widows Remarriage Repeal Act
As a result of the recommendations made by the Law Commission, the Act was repealed in 1983 by virtue of the Hindu Widows Remarriage Repeal Act, 1983. This Act was enacted to give effect to the recommendations of the Law Commission of India. The Hindu Widow Remarriage Act had become redundant, and it was considered best to repeal it.
Landmark judgements on the Hindu Widows Remarriage Act, 1856
Jagdish Mahton v. Mohammad Elahi (1972)
In the case of Jagdish Mahton v. Mohammad Elahi (1972), the widow was divested of the interest that she had in the property of her deceased husband.
The appellants had pleaded that the widow’s interest in the property would cease upon her remarriage by virtue of Section 2 of the Widow Remarriage Act. However, the plea taken by the respondent (widow) was that, by virtue of the provisions of the Hindu Succession Act, the widow had acquired the property of her deceased husband as an absolute owner. Hence, she could not be divested of the interests that she had in the property. The Hindu Succession Act would supersede the Widow Remarriage Act. Section 4 of the Hindu Succession Act provides for the overriding effect of the Act.
The Court held that a Hindu widow acquires an absolute interest in her deceased husband’s property by virtue of Section 14 of the Hindu Succession Act. Since this Act has an overriding effect over the preceding laws, Section 2 of the Widow Remarriage Act will cease to have effect to the extent of the inconsistency. Thus, the Hindu widow cannot be divested of the interests that she has in her deceased husband’s property on the grounds of her remarriage.
Bhola Umar v. Kausilla (1932)
There has been a lot of controversy regarding the scope of the Widow Remarriage Act. In the case of Bhola Umar v. Kausilla (1932), the issue before the Allahabad High Court was whether the Act applied to all Hindu widows.
The Court held that the Act does not apply to all Hindu widows. The High Court was of the opinion that widows who were permitted by the customs followed by certain castes to remarry upon the deaths of their husbands would not be covered within the scope of the Act. Such widows need not take advantage of the safeguards provided under the Widow Remarriage Act.
The Court was of the opinion that there may be certain cases where the remarriage of the widow is regulated by the customs followed in her religion. In such a case, matters such as inheritance, maintenance, guardianship, etc., must also be governed by the customs followed by the same caste. If no custom relating to the forfeiture of the interests of the widow upon her remarriage is established, the widow will retain all the interests in her deceased husband’s property even after the remarriage.
Chando Mahtain v. Khublal Mahto (1982)
In this case, the petitioner had filed a suit for the partition of the property. However, the suit was dismissed on the ground that the petitioner had failed to add the widow of his brother to the suit. The trial court dismissed the suit on the ground that the widow was a necessary party.
The petitioner preferred an appeal and pleaded that since the widow had remarried, she was divested of all rights to the property. Thus, the widow was not a necessary party. The Court held that Section 2 of the Hindu Widow Remarriage Act divests the widow of all interests in her deceased husband’s property upon remarriage.
The Court held that the Hindu Succession Act did not have the effect of repealing the Hindu Widow Remarriage Act. However, Section 2 of the Remarriage Act is abrogated by Section 4 of Hindu Succession Act. Since the widow is mentioned as one of the Class I heirs in the Hindu Succession Act, she was rightly held to be a necessary party by the trial court.
Conclusion
The Hindu Widows Remarriage Act dealt with various aspects of Hindu law. It covered the maintenance, inheritance, and property rights of a Hindu widow. The Act was certainly a watershed movement in the history of social reforms in India.
However, certain provisions of the Act had become redundant with the passage of time. Thus, the Law Commission rightly recommended the repeal of the Act. The provisions of the Act that provided for divesting the widow of any interests in the property that she acquired prior to the death of her husband were certainly archaic. The Act was rightly repealed as it was not apt to meet the prevailing structures of society.
Frequently asked questions (FAQs)
What are the conditions for a valid Hindu marriage?
Section 5 of the Hindu Marriage Act provides the conditions to be fulfilled in order to constitute a legally valid Hindu marriage. A marriage solemnised between two Hindus is a Hindu marriage. At the time of marriage, neither of the parties should have a living spouse. Both parties should be capable of giving legally valid consent. Neither of the parties should be of an unsound mind or suffer from recurrent attacks of insanity.
The minimum age of marriage for Hindu males is 21 years. The minimum age of marriage for Hindu females is 18 years. The parties to the marriage must not be sapindas of each other.
When was the Hindu Widow Remarriage Act repealed?
The Hindu Widow Remarriage Act was repealed in 1983.
What were the reasons for the repeal of the Hindu Widow Remarriage Act?
The Hindu Widow Remarriage Act was repealed because it had become outdated and redundant. Most of the provisions of the Act had become obsolete because the matters dealt with in the Act were also covered by the Hindu personal laws. The codified Hindu personal laws had an overriding effect over the provisions of the Hindu Widow Remarriage Act.
What is the Hindu Widow’s Remarriage and Property Act, 1989?
The Hindu Widow’s Remarriage and Property Act, 1989, applied to the State of Jammu and Kashmir and legalised widow remarriage in the erstwhile state. It provided that marriage between Hindus would not be invalidated on the ground that the bride was a widow. The Act further provided that the Hindu widow, upon remarriage, would lose any right and interest in her deceased husband’s property.
References
- https://www.researchgate.net/publication/323691687_Widow_Remarriage_in_India
- https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3897336
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