Status of Remarried Hindu Widow
by R.K. Pandey*
Cite as : (1973) 1 SCC (Jour) 25
Mr V. S. Anjaria has written a very instructive article in the Supreme Court Cases, dated April 1, 1973 (1973) 1 SCC (Journal 17, pointing out an anomaly in the Hindu Succession Act, 1956, and suggesting certain amendments to Sections 15 and 16 of that Act in order to bring about the intended object to retain the property in the fold of the family to which it originally belonged. According to him the problem arises because the estate taken by Hindu female under Section 14(1) of the Act of 1956, is not defeasible under any circumstances and because the High Courts have rightly decided that a remarriage of a Hindu widow is now no longer a ground for divesting her of her right to the property converted into an absolute estate under Section 14 of the Act.
But it seems to me that the High Court opinion on the point of divestment on remarriage, which the learned author has in view, itself may require a consideration, having been based on an incorrect reading of the law. The contention in a nutshell can be stated thus. Under Section 2 of the Hindu Widows' Remarriage Act, 1856, a Hindu widow, on remarriage, shall forfeit her right to the property which she has inherited from her husband. That Section 2 has not been repealed by the Hindu Succession Act and Section 24 of the Hindu Succession Act itself shows that the legislature was conscious of the effect of Section 2 of the Act of 1856. Therefore, the forfeiture clause enacted by Section 2 still holds good and obtains.
This question came for decision before the Division Bench in AIR 1971 Mad 453, but the learned Judges did not seem to have examined the question in any detail being bound by the reasoning in the Full Bench case of AIR 1951 Mad 954. They also followed the view in AIR 1958 Raj 159, which was a case under the Hindu Succession Act. The Rajasthan case, no doubt, deals with the problem in some detail, but the learned single Judge who decided that case seems to have been overwhelmed by what he considered to be the object behind the amendment of 1956, which object he calls the amelioration of the lot of the females vide Para 9. No attempt has been made, if I may say so with respect, to analyse the nomenclature used in Section 2 of the Act, and that, according to me, is the only proper method for resolving the controversy.
Shri S. V. Gupte had to say the following in his Commentary on the Hindu Law of Succession, 1963 Edn.:
"It is, however, still possible to urge as a matter of construction of Section 2 of the Hindu Widows' Remarriage Act that she would forfeit her estate, though full, especially as the Act has not been repealed. If an estate is liable to forfeiture it should make no difference whether the estate is converted into a full estate by Section 14 or not. Any estate either absolute or limited may in law still be liable to forfeiture in certain circumstances and situations by an independent rule such as the rule in Section 2 of the Hindu Widows' Remarriage Act which has not been repealed.
Referring to the difficulty arising on account of the absence of any rule in the present Act providing for the devolution of the property so forfeited as also on account of the Act not contemplating succession opening a second time except to a very limited extent the author says:
'But Section 2 of the Hindu Widows' Remarriage Act in fact provides for devolution on forfeiture. Neither the said provision nor the scheme of succession indicated in that section is repugnant to the scheme of the succession under this Act.' "
The opposite view is provided for by Mulla's Hindu Law, 1966 Edn., p. 796, in the following words:
"The rule laid down in that enactment cannot apply to a case covered by the present Act and a widow becomes full owner of the share or interest in her husband's property that may devolve on her by succession under the present section.
Her remarriage, which would evidently be after the vesting in her or her share or interest on the death of the husband, would not operate to divest such share or interest. The Hindu Widows' Remarriage Act, 1856, is not repealed but Section 4 of the present Act in effect abrogates the operation of that Act in the case of a widow who succeeds to the property of her husband under the present section and Section 14 has the effect of vesting in her that interest or share in her husband's property as full owner of the same."
The High Court of Patna in AIR 1962 Pat 65, went a step further and held in a case of remarriage before the Hindu Succession Act, that the forfeiture of widow's right on remarriage is based upon general principles of Hindu law apart from the provisions of Section 2 of the Act of 1856.
Section 2 of the Hindu Widows' Remarriage Act reads as under:
"Rights of widow in deceased husband's property to cease on her remarriage All rights and interests which any widow may have in her deceased husband's property by way of maintenance or by inheritance to her husband or to his lineal successors, or by virtue of any will or testamentary disposition conferring upon her, without express permission to remarry, only a limited interest in such property, with no power of alienating the same, shall upon her remarriage cease and determine as if she had then died: and the next heirs of her deceased husband or other persons entitled to the property on her death, shall thereupon succeed to the same."
On a proper analysis of the aforesaid sections, it is clear that it deals with four types of properties viz.
(a) property held by way of maintenance,
(b) property held by inheritance to her husband,
(c) property held by inheritance to husband's lineal successors, and
(d) property held by virtue of a Will or testamentary disposition conferring upon her without express permission to remarry only limited interest in such property.
It is submitted that the language used does not permit reading the words "conferring upon . . . in such property" as qualifying all the above classes of property i.e. (a), (b), (c), and (d). These words qualify only the last category of property, namely (d). Reading the section in this manner, it seems that there is no conflict between Section 24 and Section 14 of the Hindu Succession Act on the one hand, and Section 2 of the 1856 Act on the other.
In the Rajasthan case, it was pointed out that if the above was the intention, then Section 24 would have been differently worded. It seems to me that the contrary reasoning would be correct. Section 24 is worded in its present form because it would have been a superfluity to refer to the result of forfeiture on remarriage of a Hindu widow when the legislature thought of leaving Section 2 of the Act of 1856, untouched. It is because of this reason that no reference to remarriage of a widow resulting in forfeiture of the property on her remarriage has been repeated in Section 24.
But the above view is meant only to set the legal profession a thinking about the controversy and is not meant to be a final word about it.