Ishita Ayala
The author is a student at National Law University Odisha
INTRODUCTION
“After her husband is dead, she may voluntarily emaciate her body by eating pure flowers, roots, and fruits; but she may never mention even the name of another man. Aspiring to that unsurpassed Law of women devoted to a single husband, she should remain patient, controlled, and celibate until her death.”
In India, the Manusmriti is one of the most important books of Hindu law. The social interactions between different caste groups in ancient India were the subject of this work. The majority of Hindu philosophy has been inspired by this text, which has been used by some to defend the treatment of women and lower castes, although it is patriarchal and casteist when evaluated from a modern perspective.[1]
Hindu society has treated widows with disdain, often excluding them from society, compelling them to live a life of obscurity. The British were not keen on interfering with Hindu rites, but they considered “sati,” in which a widow threw herself on her husband’s cremation pyre, was a terrible practice for a widow. C
This project examines the provisions of the Act, cites cases to showcase the application of the Act, has endeavored to highlight the flaws in the Act
HISTORICAL BACKGROUND OF THE ACT
In 19th-century India, if a Hindu woman’s husband died, she was often compelled to immolate herself on the husband’s funeral pyre. This practice was known as “sati”, but was not uniform in its application. Women who committed “sati” were often venerated as an example of chastity and womanhood. In the scriptures, it was said that “sati “was painless, and it would remove the sins of seven generations in a woman’s family[2]. Although excruciating many women preferred it to the public scorn that these unfortunate women were subjected to as they were prohibited from education or to work outside the home. Many widows who did not commit “sati”, were often expected to shave their heads, live as an ascetic and shun all worldly pleasures.
The Britishers did not interfere with the customs and rituals of the Hindus. They had opposed “sati” not for ethical or moral reasons, but to convince the native Indians of the brutality of their religion and to convert the Indigenous masses to Christianity. [3]
Lord Bentinck passed the Bengal Sati Regulation (Regulation XVII) in 1829, despite the backlash from the orthodox Hindus. This researcher believes that this particular legislation sowed the seeds for the passage of “The Hindu Widow Remarriage Act, 1856.
Ishwar Chandra Vidyasagar was an eminent social reformer who had campaigned extensively for widow remarriage from 1854. He quoted the Hindu scriptures to justify the practice. His translation from the Parashara Dharma Samhita has been reproduced here-
“Women are at liberty to marry again if the husband be not heard of, die, return from the world, prove to be impotent or be an outcast”.[4]
The “Hindu Widows’ Remarriage Act 1856” was passed by Lord Canning despite the disapproval from the conservative Hindu community.
It was an act that removed all legal impediments to Hindu widows marrying, intending to promote good morals and public welfare as a result.[5]
PROVISIONS OF THE ACT
1) Hindu widow weddings are now permitted. If the lady was previously married or betrothed to another person who died before the marriage, no Hindu marriage is invalid, and no offspring from this marriage is illegitimate, regardless of any custom or interpretation of Hindu law to the contrary.[6]
2) A widow loses her claim to her late husband’s property when she marries. Upon her remarriage, all rights and interests that a widow may have in her deceased husband’s property by way of maintenance, inheritance to her husband or his line successors, or under any will or testamentary disposition conferring only a limited interest in such property, with no power of alienation, shall cease and determine as to if she had died; and her deceased husband’s next heirs.[7]
3) If the widow or any other person has not been expressly constituted in the place where the deceased husband was domiciled at the time of his death for the appointment of a proper person to be the guardian of the said children, it shall be lawful for the said court, if it thinks fit, to appoint such guardian, who shall be entitled to have the care and custody of the said children, or any of them, during their lifetime, in place of their mother.[8]
4) This Act makes no provision for a childless widow not to inherit. No provision of this Act shall be construed as granting any widow who is a childless widow when her husband dies and leaves her property, the right to inherit the entire or any portion of that property if she would have been unable to inherit it before the passage of this Act because she was a childless widow.[9]
5) A widow shall not forfeit any property or right to which she would otherwise be entitled as a result of her remarriage, except as provided in the three preceding sections of the Act, and every widow who has remarried shall have the same rights of inheritance as she would have had had such marriage been her first marriage.[10]
6) A widow’s marriage will be legalized by the same ceremonies that are used to form a legal marriage. Any words, ceremonies, or engagements said, performed, or made on a Hindu female who has never been married before have the same impact on a Hindu widow’s marriage, and no marriage shall be found invalid on the basis that such words, ceremonies, or engagements are inapplicable to a widow.[11]
7) If the widow is a minor, she cannot remarry without the permission of her father, or if she does not have a father, her grandfather, or if she does not have a grandfather, her mother, or if none of these is available her elder brother, or if brothers are unavailable, her nearest male relative. Anyone who aids in a marriage that violates this section will face sanctions. A year in prison, a fine, or both could be imposed on anyone who knowingly assists and abets a marriage that breaches the conditions of this section. A court of law may declare any marriages performed in violation of the terms of this section void.
The exception states that in the case of a widow of legal age who has already consummated her marriage, her agreement is sufficient to render it valid.[12]
ANALYSIS OF THE ACT
The Hindu Widows’ Remarriage Act 1856 was meant to ensure that widows live a life of dignity. Yet with any legislation, the researcher believes that this act is problematic in the following ways-
“Section 2 states that if a widow remarries, she loses all rights to her deceased husband’s property, which passes to the deceased husband’s kin or any other persons entitled to the property. This is a disincentive to remarry because the husband’s kin could deny the widow her rightful share in the property on this pretext.”
If the will is ambiguous about the children’s guardianship rights in the event of the widow’s remarriage, Section 3 states that any male relative of the deceased spouse may seek custody of the children from the court. According to the researcher, the husband’s relatives may use this opportunity to poison the children’s minds against the mother.
The Act was also equally progressive in the following ways-
Section 4 states that a childless widow can inherit the property of the husband. According to the researcher, this is progressive, as it ensured childless widows would not have to depend on their families or their in-laws for sustenance. They would be financially independent. It was common for widows to turn to beg or prostitution, to sustain themselves as there were not skilled enough to hold a salaried job and it was unheard of for women to run businesses.
Section 6 specifies that any rites that would be sufficient for the remarriage of an unmarried Hindu woman will suffice for the remarriage of a Hindu widow. This is a wonderful measure as it treats widows and women about to marry equally.
According to Section 7, if a widow remarried a minor when her previous marriage had not been consummated, she is barred from remarrying except for the consent of a male relative. A year in prison, a fine, or both will be imposed if one abetted such a marriage. A competent judge would declare any marriages that breach this article null and void. Only if the widow consented to the marriage or if the previous marriage had been consummated was there an exception. This is a worthy clause, but it is unlikely to have been utilized. In a patriarchal society, refusing to accept a marriage that was normally chosen by the family for economic reasons would have been impossible. Marriages were completely endogamous, and were never entered into for the sake of love, but rather to ensure the continuation of the bloodline.
CASES ON THE HINDU WIDOW REMARRIAGE ACT 1856
The author has cited a few cases to highlight the application of the Act over the years. The point to be noted is that the interpretation has been varied and diverse across courts over the years.
In the case of Matungini Gupta vs Ram Rutton Roy[13], the widow acquired the deceased husband’s property, including a Hindu widow’s fortune. After disclosing her non-Hindu status as required by the Act, she married a non-Hindu. Upon marrying him, she gave up her right to her first husband’s fortune in favour of the next heir, which raises the question of whether she gave up her stake in her first husband’s fortune in favour of the next heir.
In the end, Justice Wilson came to the following conclusion:
“While Section 1 refers to Hindu marriages, Section 2 includes all widows who fall within the Act’s scope, that is, all Hindus who become widows, and it follows that if any such widow marries, she loses her Hindu husband’s estate, which she inherited from him; the estate that a Hindu widow takes in her husband’s property upon his death is an estate that she inherits from him, and such an estate is known as a Hindu widow’s estate.”
As a result of her marriage, the widow gave up half of her first husband’s inheritance to the next heir.
Justice W C Petheram wrote the minority opinion, claiming that Section 2 of the Act only applied to Hindu widows who remarried as Hindus under Hindu law as defined by the Act and that she was therefore entitled to her husband’s property.
In Vitta Tayaramma v Chatakondru Sivayya[14], A Hindu widow who quit her religion and married a non-Hindu was found to have no claim to her the estate of her late husband
In the case of Rama Appa Patil v Sakhu Dattu Ghara[15] it was held that it was customary for the widows of Easter, Southern and Western India to forfeit their property rights on remarriage.
In Gunga v Jhalo[16], the court held that there was nothing that made it obligatory to remove the woman’s custody of her children because she has remarried. Section 3 of the Act deprives a woman of the guardianship of her children but it does not make it compulsory.
The High Court of Chhattisgarh, in the Loknath v Kiya Bai [17] case had stated that a woman’s right to the property of her deceased husband would cease to exist if her remarriage is legal.
The dispute relates to the property of Kiya Bai, whose husband passed away in 1942. Her deceased husband’s cousin’s brother Loknath filed the claim, alleging that she had remarried and hence had renounced all rights to her deceased husband’s property.
The rationale for the judgement is given below-
“While Section 1 of the Act refers to Hindu marriages, Section 2 of the Act includes all widows who fall within the Act’s scope, that is, all Hindus who become widows, and it follows that if any such widow marries, she is deprived of her Hindu husband’s estate, which she inherited from him; the estate that a Hindu widow inherits from her husband is an estate that she inherits from him, and such an estate is a Hindu widow’s right”
LAW COMMISSION REPORT
The Hindu Widows’ Re-Marriage Act of 1856 was recommended for repeal in the Eighty-First Law Commission Report. The causes mentioned included the Hindu Marriage Act of 1955, the Hindu Succession Act of 1956, the Hindu Adoption and Maintenance Act of 1956, and the Hindu Minority and Guardianship Act of 1856 which were violated by the Hindu Widows’ Re-Marriage Act of 1856.
It was demanded that Section 5(1) of the Hindu Marriage Act 1955 be repealed, which says that marriage is solemnised if neither party had a spouse alive at the time of marriage. The Hindu Marriage Act simply stated that the woman wanting to marry or remarry must not have a surviving spouse at the time of marriage, making the stipulation that the widow was not betrothed to someone before the marriage redundant.
According to Section 2 of the Act, a widow’s entitlement to her deceased spouse’s property would be terminated if she remarried. There are no provisions in the Hindu Succession Act of 1856 that prevent a widow from inheriting her husband’s possessions. Section 2 of the Hindu Succession Act of 1956 is incompatible with the Act.
If the widow marries again, Section 3 of the Act allows any male relative of the deceased spouse to seek custody of the children. The children’s custody will not be altered by the mother’s remarriage.
No childless widow is barred from receiving her deceased spouse’s property under Section 4 of the Act. According to the Mitakshara School of Hindu Law, a childless widow will not be entitled to inherit under the Hindu Succession Act 1956, which is based on regional norms.
The Hindu Succession Act of 1856 ended the Mitakshara School of thought’s influence. According to the recommendation, the provision of the Act should be repealed.
As there are already several laws dealing with adoption, guardianship, and property rights, Section 5 is unnecessary. This clause makes no mention of property not covered by such legislation, and it also stipulates that the widow’s property will be forfeited if she remarries.
The rites performed in the marriages of unmarried brides and widows would be identical, according to Section 6 of the Act.
The marriage will be solemnized according to the customs of either party, according to Section 7 of the Hindu Marriage Act of 1955, and the saptapadi (seven steps taken by the bride and groom around the sacred fire) is an important stage (only after which the marriage is binding on both sides).
According to Section 7 of the Act, a minor widow whose marriage has not been finalized is barred from marrying without the consent of any male relative. There is an exemption if the widow has reached the age of majority or has already ended her marriage.
According to Section 7 of the Act, a minor widow whose marriage has not been finalized is barred from marrying without the agreement of a male relative. There is an exemption if the widow has achieved the age of majority or has previously completed her marriage.
The Child Restraint (Amendment) Act of 1978 increased the legal age of majority for boys and girls to 21 and 18, respectively. As a result, Section 7 of the Act is no longer in effect.[18]
While the researcher believes that the arguments for repealing the entire Act are cogent, only section 4 of the Hindu Widows’ Act has been repealed at the time of writing this project
THE CONDITION OF THE WIDOWS
A widow’s knotted hair becomes a form of servitude for her spouse. As a result, a widow should shave her head. She should never consume nourishing food or consume excessive amounts of it. Only in exceptional circumstances can she consume large amounts of ghee or consume meals. She should only undertake the necessary home chores and spend most of her day in the service of the Lord, not wasting her time.
A widow is considered a bad omen and is not allowed to participate in religious or social activities. In south India, a widow’s mangalsutra, which is a symbol of marriage, is removed. The bangles of a woman are broken, the vermillion mark is removed, and the toe rings must be removed.
The widow must wear these symbols for 10 days in Iyer Brahmin families in Tamil Nadu, and afterward, widows come to remove these visible identifiers. Sumangli is a term used to describe a group of widows who are shunned by society because their mere presence is supposed to bring bad luck.[19]
While widow remarriage is frowned upon in India, it is only prohibited by the upper castes; most other castes (except for those emulating the upper castes) allow widow remarriage; and some castes practise levirate marriages (remarriage to the brother-in-law), although actual remarriage occurs in rare cases.[20]
Haryana is an exception to the rule, where widow remarriage is promoted, as evidenced by the following quote:
“Come daughter, get married,
If this husband dies there are many more.”
- Purser and Fanshawe (1880,53)
Widow remarriage was also practiced by the higher castes of the time, the Rajputs and Banias. While levirate weddings are legal, most of the time the husband is a child who was forced to marry the widow. The late husband’s brothers frequently sexually exploited the widow, and there have even been instances in Punjab where the widow’s father-in-law exploited her. While levirate weddings are legal, most of the time the husband is a child who was married off to the widow. The late husband’s brothers often sexually exploited the widow, and there have even been instances in Punjab where the widow’s father-in-law exploited her.[21]
Widow remarriage was a prevalent practice among the agricultural communities in Punjab. Various names for this tradition include ‘karewa,’ ‘karao,’ and ‘rakhewa.’ In the majority of circumstances, levirate marriages take place (when the brother-in-law of the widow marries her). While it may appear progressive, this practice deprives the widow of her fortune and reduces her to a co-wife often against her will.[22]
A case wherein this issue was raised was the Shrimati Dayal Kaur vs Balwant Singh [23] In this case, it was decided that the widow’s remarriage would not result in property forfeiture. The understanding of this particular issue has not been consistent, and it has changed throughout time.
There was a custom “Kanyasulkam” (bride price) in Andhra Pradesh among the Telugu Brahmins, when parents would sell their pre-pubescent girls to affluent old men for dowry. These men often died of old age and these child widows were despised by society. Gurujada Appa Rao, a titan of Telugu literature, mocked this behaviour in his modern masterpiece “Kanyasulkam”, the first modern play in Telugu.
Roop Kanwar, who had committed “sati” in 1987 as an eighteen-year-old widow, is treated like a goddess in Rajasthan for having upheld the honour of her family. The state administration had waited until it was too late to take necessary action, and they were perceived as supporting the great Indian “tradition.” The opponents of sati, according to fundamentalists, were illiterate, anglicised, and non-believers[24]. Despite his distaste for sati, Ashis Nandy, a well-known psychotherapist, feels it is a product of the bourgeois middle-class mentality, which invests an inordinate amount of faith in religion and superstition. Although this is the final documented occurrence of sati in modern India, women are still beaten, tortured, and forced to live apart following the death of their spouse due to long-held beliefs.
While urban women, especially those who are financially independent are spared the insults of society, women in rural India are still ostracised. Vrindavan, a town in Uttar Pradesh has become “a town of widows.” [25] wherein women who had lost all respect in their villages came here to live a life of dignity and respect living and working with other widows.
The researcher believes that Hindu widows have been treated shamefully, using religion as an excuse to perpetrate untold miseries. These widows were compelled to wear white clothes, shun jewellery, shave their heads, and in extreme cases jump into the funeral pyre to be reunited with the husband.
While The Hindu Widows’ Remarriage Act 1856 was progressive in many ways, there are fundamental issues that have been discussed above. The main issue, especially in the rural areas is that widows are ostracised from society, and are deprived of their rightful share of the deceased husband’s property.
Section 2 of the Act itself contradicts the purpose of its existence. It denies a widow the share of the deceased husband’s property on re-marriage which was recently upheld in the Loknath vs Kiya Bai case.
While there have been many legislatures passed to safeguard the rights of women, the truth is that regressive ideologies still prevail, especially in rural India, wherein widows are compelled to live like ascetics.
The researcher believes that the concept of levirate unions (karewa unions) must be curtailed. The researcher thinks that this practice displays the ugly dynamics of sexual politics, wherein the deceased husband’s family marries her off to deprive her of her inheritance and she often becomes the concubine of her brother-in-law, to maintain superficial respectability.
The Hindu Widows’ Re-Marriage Act, according to the researcher, has outlived its usefulness and should be repealed, as it was passed in 1856, which is more than 160 years and more progressive legislation, such as the Hindu Marriage Act 1955, has been passed since independence.
According to the study, Indian society is still patriarchal. A woman is controlled by the family she marries. Women have no power in most rural households. The patriarchal worldview is expressed in this statement from the Manusmriti.
“By a girl, by a young woman, or even by an aged one, nothing must be done independently, even in her own house”[26].
Cultural views must evolve, according to the study, and this can only be accomplished through grassroots knowledge. Legislation is necessary, but it is ineffective if citizens are unaware of their rights.
[1] D Halder and Jaishankar, ‘Property Rights of Hindu Women’ (Journal of Law and Religion, 2008-2009) pp 663-687.
[2] Anonymous, ‘The Plight of Hindu Widows’ (Ethics of Suicide, May 26 2015 <https://ethicsof suicide.lib.utah.edu >accessed 17 November 2021.
[3] ‘Living in the British Empire- India’ < https://www.nationalarchives.gov.uk> accessed 17 November 2021
[4] Richen W, Vidyasagar (The Better India, May 15 2019 < https://www.thebetterindia.com> accessed 17 November 2021.
[5] The Hindu Widows’ Re- Marriage Act, 1856.
[6] The Hindu Widows’ Remarriage Act, 1856, s 1.
[7] The Hindu Widows’ Re-Marriage Act 1856, s 2.
[8] The Hindu Widows’ Re-Marriage Act 1856, s 3.
[9] The Hindu Widows’ Re- Marriage Act 1856, s 4.
[10] The Hindu Widows’ Re- Marriage Act 1856, s 5 .
[11] The Hindu Widows’ Re- Marriage Act 1856, s 6.
[12] The Hindu Widows’ Re-marriage Act 1856, s 7.
[13] Matungini Gupta v Ram Rutton Roy (1892) ILR 19 Cal 289.
[14] Vitta Tayaramma v Chatakondru Sivayya (1918) I.L.R 41M.1078: 35 M.L.J. 317(F.B).
[15] Rama Appa Patil v Sakhu Dattu Ghara 1953 SCC Online Bom 114: ILR 1954 Bom 1107: (1954) 56 Bom LR 227: AIR 1954 Bom 315.
[16] Gunga v Jhalo 1911 SCC OnLine Cal 63: (1910-11) 15 CWN 579.
[17] Loknath v Kiya Bai: Second Appeal No.356 of 2001
[18] Law Commission, The Hindu Widows Remarriage Act ,1856( Law Com No 81 )
[19] Leela Dube, ‘On the Construction of Gender’ (Economic and Political Weekly, April 30 1998) pp. WS11-WS19
[20] Marty Chen and Jean Dreze, ‘Recent Research on Widows in India’ (Special Articles) < http://econdse.org/wp-content/uploads/2012/09/JD-Recent-Research-on-Widows-in-India.pdf > accessed 21 November 2021.
[21] Prem Choudhry, ‘An Alternative to the Sati Model’ (Nanzan University, 1990)
[22] Gurmit Kaur, ‘Customary Law and Widow Remarriage’ (Proceedings of the Indian History Congress), vol. 72, Indian History Congress, 2011, pp. 828–35,
[23] Srimati Dayal Kaur vs Balwant Singh 1959 SCC OnLine Punj 21: ILR (1959) 1 P&H 1122
[24] Imrana Qadeer and Zoya Hasan, ‘Deadly Politics of the State’ (Economic and Political Weekly)
[25] Arwa Damon, ‘Shunned from Society’ (CNN World).
[26] < https://fromhinduscriptures.blogspot.com/2010/10/manusmriti-chapter-5husbandwifefemalesh.html> accessed 4 December 2021
