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Hiralal Singha Vs. Tripura Charan Ray - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1913)ILR40Cal650
AppellantHiralal Singha
RespondentTripura Charan Ray
Cases ReferredManilal Rewadat v. Bai Rewa
Excerpt:
hindu law - stridhan--prostitute's property, succession to. - mookerjee j.1. this is an appeal by the first defendant in a suit for house rent. to appreciate the question of law which calls for decision, it is necessary to state briefly the undisputed facts. the house originally belonged to kanailal ghosh, who transferred it on the 10th october, 1893, to dayamoyee dasee and her brother's son hara chand jalal. the purchasers, while in possession of the house, leased it to the first, defendant on the 1st january, 1901. shortly after, dayamoyee dasee died, on the 25th february, 1901. on the 20th july, 1908, hara chand jalal transferred the house to the plaintiff, on the allegation that, upon the death of his father's sister, dayamoyee dasee, he had taken by inheritance her half share of the property and had thus become full owner thereof. on the 8th.....
Judgment:

Mookerjee J.

1. This is an appeal by the first defendant in a suit for house rent. To appreciate the question of law which calls for decision, it is necessary to state briefly the undisputed facts. The house originally belonged to Kanailal Ghosh, who transferred it on the 10th October, 1893, to Dayamoyee Dasee and her brother's son Hara Chand Jalal. The purchasers, while in possession of the house, leased it to the first, defendant on the 1st January, 1901. Shortly after, Dayamoyee Dasee died, on the 25th February, 1901. On the 20th July, 1908, Hara Chand Jalal transferred the house to the plaintiff, on the allegation that, upon the death of his father's sister, Dayamoyee Dasee, he had taken by inheritance her half share of the property and had thus become full owner thereof. On the 8th September, 1908, the plaintiff commenced the present suit for rent. Besides other defences not material at this stage, the first defendant resisted the claim on the plea that Dayamoyee Dasee was a prostitute, and that, consequently, Hara Chand Jalal, though her brother's son, was not her heir under the Hindu law. This contention has been overruled by both the Courts below. The evidence shows that Dayamoyee Dasee was a married woman, that after the death of her husband she became a, prostitute, and that she was the mistress of one Bose. The house was apparently purchased by her with her own earnings, and, throughout this litigation, it has been assumed that it was her stridhan property. This assumption is in accord with the accepted view of the Bengal school of Hindu law, namely, that the term stridhan has no technical meaning or, in the words of Jimutavahana, 'that alone is stridhan which she has power to give sell or use, independently of her husband's control.' Dayabhaga, Chapter IV, Section I, paragraph 18: Brij Indar Bahadur Singh v. Ranee Janki Koer (1877) L. R. 5 I. A. 1 : 1 C.L.R. 318. The substantial question of law which, consequently, here requires examination may be formulated in these terms:

Does the stridhan property of a Hindu woman who has adopted the life of a prostitute pass upon death to her brother's son as an heir under the Bengal school of Hindu law?

2. It cannot be disputed that if a Hindu woman, governed by the Bengal school, is respectable, her stridhan property passes upon her death to her brother's son, in the absence of nearer heirs. This position is established by Jimutavabana in the Dayabhaga (Chapter IV, Section III, paragraph 37). Having pointed out in paragraphs 35 and 36 that the text of Vrihaspati mentioned in paragraph 31 relates merely to the right of succession, and is not declaratory of the order of inheritance, he observes that the text is 'expressive of the strength of the fact (of the benefits conferred)' and then proceeds to develop the order of succession in paragraph 37 in the following terms:

This then is the order of succession according to the various degrees of benefit to the owner of the property from the oblation of food at obsequies. In the first place, the husband's younger brother is entitled to the woman's property; for he is a sapinda, and presents oblations to her, to her husband and to three persons to whom oblations were to be offered by her husband. After him the son either of her husband's elder or of his younger brother, is heir to the separate property of his uncle's wife, for he is a Sapinda, and presents oblations to her, to her husband and to two persons to whom oblations were to be offered by her husband. On failure of such, the sister's son, though he is not a sapinda, inherits the separate property left by his mother's sister, because he presents oblations to her and to three persons (her father and the rest) to whom oblations would have been offered by her son. In default of him, the son of her husband's sister (for it is reasonable, since the husband has a weaker claim than the son, that persons claiming under them should have similar relative precedence) is heir to the property of his uncle's wife, because he presents oblations to three persons to whom they were to be offered by her husband, and also presents oblations to her and to her husband. On failure of him, the brother's son is the successor to his mint's property, for he presents oblations to the father, to her grandfather, and to herself. If there be no nephew, the husband of her daughter is heir to his mother-in-law's property, since he presents oblations to his mother-in-law and father-in-law.

3. The language used in this passage does not restrict its application to the stridhan property of a respectable woman only; the language is comprehensive enough to include stridhan property of a prostitute, who does not by the-mere fact of lapse into prostitution cease to be a Hindu or to be subject to the rules of Hindu law. (Mitakshara on Yajnayalkya If, 290, Setlur's edition, page 1105; Girish Chandra Tarkalankar's Translation, page 121). The question therefore arises whether the rule laid down in the Dayabhaga, Chapter IV, Section III, paragraph 37, should be held inapplicable to the case of succession to the stridhan property of a prostitute, either because the reason on which the rule is founded ceases to be applicable in the case of a prostitute, or because, upon general principles of Hindu jurisprudence, the rule should be restricted in its application only to stridhan property of a respectable woman. In so far as the reason for the rule is concerned. Jimutavahana states that the brother's son is the successor to his aunt's property because he presents oblations to the father, to her grandfather and to herself. It is plain that the capacity to present oblations to the father and the grandfather of the aunt is not dependent upon her character; the claimant offers such oblations because they are the father and the grandfather of his own father. In so far, therefore, as capacity to present oblations to the father and the grandfather of the woman is concerned, the claimant possesses that qualification, whether or not his aunt is respectable. But in so far as capacity to present oblations to herself is concerned, it may be argued that when she lapses into 'prostitution the claimant loses that capacity. This, in fact, is the line of argument adopted by the appellant as based upon general principles of Hindu jurisprudence. The contention in essence is that when a Hindu woman lapses into prostitution, she is civilly dead, and that in the eye of the law the tie which connected her to any person through her father, mother, husband or children is completely severed; in other words, so far as her relations are concerned, the position is precisely the same as if she had suffered physical death. To establish this position, the appellant has been constrained to argue that when a woman lapses into prostitution she becomes an outcast, and that when a person has become an outcast, whether a man or a woman, the kinsmen mast perform the same ceremonies as at the time of death.

4. Reference has been made to the following passages from the laws of Manu:

The sapindas and samanodakas of an outcast must offer a libation of water to him, as if he were dead, outside the village, on an inauspicious day in the evening, and in the presence of the relatives, officiating priests and teachers' (XI, 183).

A female slave shall upset with her foot a pot filled with water, as if it were for a dead person; his sapindas as well as the samanodakas shall be impure for a day and a night' (XI, 184).

But thenceforward, it shall be forbidden to converse with him, to sit with him, to give him a share of the inheritance, and to hold with him such intercourse as is usual among men' (XI, 185).

And, if he be the eldest, his right of primogeniture shall be withheld, and the additional share due to the eldest son; and in his stead a younger, brother excelling in virtue shall obtain the share of the eldest' (XI, 186). ('Sacred Books of the East,' Volume 25, page 468.)

5. Before we determine the true import of this we may observe that passages similar in scope and character are to be found in other; institutional writers, amongst whom may be mentioned Gautama (XX, 4-7, S. B. E., Volume 2, page 278), Vasistha (XV, 12-16, S. B. E., Volume 14, page 77), Baudhayana (II, 1, 86, S. B. E., Volume 14, page 216) and Yajnavalkya (III, 295, Mandlik, 270). In each of these instances as in the case of the laws of Manu, the passages are followed by rules for the performance of penance, which serve to throw light upon the true significance of the directions for excommunication of outcasts. Thus, we have in the laws of Manu:

But when he has performed his penance, they shall bathe with him in a holy pool and throw down a new pot, filled with water ' (XI. 187).

But he shall throw that pot into water, enter his house and perform, as before, all. the. duties incumbent on a relative' (XI, 188).

6. Of the like import are passages in Gautama (XX, 10-14, S. B. E., Volume 2, page 279), Vasistha (XV, 17-21, S. B. E., Volume 14, page 77), Baudhayana (II, 1,36,8. B. E., Volume 14, page 216) and Yajnavalkya (III, 296, Mandik, page 270). Of equal significance is the following passage from the laws of Maim, which refers specially to female outcasts:

Let him follow the same rule in the case of female outcasts, but clothes, food and drink shall be given to them and they shall live close to the family house ' (XI, 189, S. B. E., Volume 25, page 469).

Upon this passage, three of the commentators of Maim, namely, Medhatithi, Sarbajna Narayan and Govindaraj, observe that provision is necessary for the residence and subsistence even of fallen women, so that they may have no temptation to proceed further in the paths of vice (Manu, edited by Mandlik, page 1439 and page 157, Appendix).

7. To the same effect is the following passage from the Institutes of Yajnavalkya:

This very ceremony is ordained in the case of degraded women. They should be given dwelling room in the vicinity of the house, provided with food and clothing, and be guarded ' (III, 297, Mandlik, page' 270).

8. Vijnaneswara comments upon this passage that the fallen women should be allowed food just sufficient: to sustain life and a piece of soiled cloth; he adds that she should be reproved and admonished not to have intercourse with another man (Mitakshara Ed. by Setlur, page 1382). To the same effect is the comment of Apararka (Poona edition, page 1208).

9. It is fairly clear 'from the passages already quoted that the performance of ceremonies, similar to obsequial ceremonies, by the kindred of a person who is guilty of a heinous sin and has thereby become an outcast, is indicative riot of, the fact that he is civilly dead but rather of the fact that his social rights have been suspended and such rights may be revived by the performance of the appropriate ceremonies and penances. This is supported by the express statement of Apararka in his Commentary on Yajnavalkya (III 294, Poona Edition, page 1205), that the outcast is, from, the time of the performance of the ceremonies described, to be excluded from all social and religious performances and no one is to have intercourse with him in ordinary life. Apararka supports this view by quotations from the Institutes of Gautama, Vasistha, Sankha and Likhita. This is further confirmed by the fact that the social rights of the outcast may be revived upon the performance of the prescribed penances and ceremonies. This is elaborated in the Prayaschitta Viveka of Sulapani, in which heinous sins which cause degradation are divided into nine classes. For sins of each class penances, ceremonies and gifts are prescribed, and these vary in respect of different sins even in the same class, according to their gravity. A convenient summary of the different classes of sins and of the respective penances and ceremonies will be found in the Sabdakaipadruma, Art. Prayaschitta, Volume 3, pages 321-364. The view that an outcast is not civilly dead is further supported by the fact that the kindred of an outcast have to perform his obsequial ceremonies after his death. Thus, in the Chaturbarga Chintamani of Hemadri (Asiatic Society's edition, Pariseskhanda, Volume III, page 1661), it is stated that the obsequial ceremonies of an outcast, or of a person who has killed a cow or a Brahmin, are to be performed after the lapse of one year from his death. To the same effect is a passage in the Agnipurana, in which it is stated that salvation is effected of a person who has killed a Brahmin or a cow, or who has committed five heinous sins or who is guilty of ingratitude, if funeral oblations are offered for the benefit of such person at Gaya (Sabdakaipadruma, Volume III, page 24, Art. Patita). In fact, Chapter XXII of the Pariseskhanda of the Chaturbarga Chintamani of Hemadri (Asiatic Society's edition, Volume III, page 1657) shows conclusively that obsequial ceremonies of an outcast should be performed by his kindred for the purpose of his salvation. To the same effect is the statement in the Institutes of Visnu (XXII, 57, S. B. E., Volume 7, page 93): 'On the death day of an outcast, a female slave of his must upset a pot with water with her feet, saying, 'drink thou this.'' In fact, there is no foundation for the position suggested by the appellant, namely, that when a person becomes an outcast he is, in the contemplation of Hindu law, civilly dead for ail purposes, and that the tie of relationship which connected him with his kindred is completely severed. The rites which are directed to be performed by his kindred when he becomes an outcast are intended to emphasise the complete exclusion of the outcast from all social and religious performances. This view is not opposed to that adopted by Raghunandan in the passage from his Institutes (Volume I, page 544) where he differentiates between the two-fold property of a heinous sin, namely, first, its capacity to cause the sinner to go to hell, and, secondly, its capacity to cause exclusion from social intercourse; the former effect cannot be avoided when the sinful act is intentionally committed,-but the second can be removed by the performance of penance and the sinner restored thereafter to social intercourse. Raghunandan does not hold that a person guilty of a heinous sin thereby cancels the tie of kindred which binds him to his relations. Stress, however, was laid upon a passage of the Dayabhaga (1, 31) in which Jimutavahana observes that sons have not a right of ownership in the wealth of the living parents, but in the estates of both when deceased, and adds that this means 'not mere demise, but also the state of a person degraded, gone into retirement, or the like.' This passage, however, is clearly of no assistance to the appellant, because it merely asserts that right of property is annulled by degradation. That this is the true import of the passage is clear from the Dayatattwa of Raghunandan (Chapter I, paragraphs 9-11) where he points out with reference to the text of Narada quoted by Jimutavahana in the Dayabhaga (I, IV 2) and expounded in (1, 33), that sons are entitled lo partition if the right of property of the parent be annulled by death or by degradation. This obviously refers to an entirely different problem. We are not now concerned, with the question, whether a person who has committed a heinous sin and has become an outcast may not only be excluded from inheritance (Dayabhaga, Chapter V, paragraphs 6-13), but may also lose all rights of property, or whether such a comprehensive proposition can be reconciled with the view accepted by their Lordships of the Judicial Committee in the case of Moniram Kolita v. Keri Kolitani (1880) I. L. K. 5 Calc. 776; L. R. 7 I. A. 115 nor need we determine whether the decision in Sheonauth Rai v. Mussurnaut Dayamyee Chowdrain (1814) 2 MaC. Sel. Rep. 137; 6 I. D. (O. S.) 462 upon which much stress was laid by the appellant, can be treated as well founded on principle, in so far as it ruled that an adopted son forfeits his rights in the estate of his adoptive father by reason of intercourse with a Mahomedan woman, subjecting him to the penalty of irrevocable expulsion from caste. The question now under consideration is of an entirely different character; we are called upon to determine whether, where a woman lapses, into prostitution, the tie of her relationship with her kindred is severed so as to render it impossible for the kindred to claim her estate by inheritance. As already stated, the texts do not support the theory that the tie is so severed. No doubt, there is the opinion of Mr. J. C. C. Sutherland, in his Synopsis of the Hindu law of Adoption appended to his translation of the Dattaka Mimansa and Dattaka Chandrika, to the effect that the mother of an infant may give him in adoption even during the lifetime of her husband who has permanently emigrated, entered a religious order or become an outcast, because, being civilly dead, he would be regarded as virtually deceased. No authority, however, is mentioned in support of this proposition, in so far as an outcast is concerned; on the other hand, the passages in the Dattaka Mimansa (Section IV, paragraphs 9 and 10) and Dattaka Chandrika (Section I, paragraphs 7, 31, 32) mentioned, refer to cases where the husband has disappeared or has entered a religious order. But, even if there were any authority for the extension of the rule to a case where the husband has become an outcast, it might be defended possibly on the theory that the father, by his expulsion from caste, had been deprived of that right of guardianship over his child which alone would entitle him to assent to the adoption of the infant into a different family. In any event, Mr. Sutherland does not support his theory of civil death of an outcast by reference to any authorities, and it is significant that, in the preface to his work, he candidly admits that the synopsis possesses no intrinsic authority whatsoever, and that of the propositions it contains many are dubious and some may prove erroneous. We take it, therefore, that the appellant has failed to establish the theory that when a woman lapses into prostitution, the tie of relationship which connects her with her kindred is thereby dissolved, so as to make it impossible for the kindred to claim her stridhan property by inheritance by reason of the relationship in which they stand to her. It is obvious that the adoption of such a theory would have rendered it necessary for the Hindu lawgivers and commentators to provide a set of rules regulating succession to the property of a woman who has adopted the life of a prostitute. That prostitutes existed and were recognised in ancient Hindu society is clear from the passage of the Mitakshara to which reference has already been made (Mitakshara, Setlur's edition, page 1105; Girish Chandra Tarakalankar's translation, page 121). It is extremely improbable that, if the theory suggested by the appellants were well founded, the doctrine would be left to be inferred from casual references, and no provision would be made to regulate succession to the estate of a woman who has lapsed into prostitution. On the other hand, it may be conceded that cases of this description would rarely find their way into Courts; respectable people would deem it a degradation to acknowledge relationship with a fallen woman, much less would they be ready to claim property which represented the wages of her sin. It is remarkable that this feeling led Chanakaya to lay down in his Arthasastra that the estate of women of this class taken by the King by escheat in the absence of heirs should be given away by him in charity (Arthasastra of Kautilya, Mysore edition, page 161); but Chanakaya undoubtedly contemplated that the estate would not reach the hands of the King till there was a complete failure of heirs. The same idea pervades a passage in the Vatsyayan Sutra (Jaipore edition, page 317) where it is staled that the wealth of a fallen woman may be taken in gift by a Brahmin for religious purposes, if it does not reach his hands directly. But the position is entirely different when the kindred of a woman who has lapsed into prostitution lay claim to her estate upon her death. The mere fact of the degraded life she led did not sever the tie of relationship between her and her kindred, and though she might have been disqualified as an. heiress, there is no reason why her undegraded relations should not, if they are prepared to put forward the claim, take her stridhan estate by light of inheritance.

10. It has been earnestly contended, however, on behalf of the appellant, that this view is directly opposed to what has been regarded as settled law in the Courts of this Province since 1846, and should on that ground alone be repudiated. 'We are clearly of opinion that this contention ought not to prevail. It is true that' in the case of Tara Munnee Dossea v. Motee Buneanee (1846) 7 Mac. Sel. Rep. 325; 8 I. D. (O. S.) 247 it was held that the tie of relationship is severed between a married and respectable daughter and her mother when the latter adopts the life of a prostitute. This decision was founded upon an opinion of the Pandit of the Sudder Court which is supported neither by any statement of reasons nor by any reference to the original texts. On the other hand, in the Matsya Purana, as quoted in the Sabdakalpadruma, Volume III, page 24, it is expressly stated that there may be fallen persons who cannot be forsaken and, as an illustration, it is said that although elder relations who may have lapsed into prostitution, or have otherwise fallen, should be abandoned, yet the mother should never be so treated, and the reason assigned for this preferential treatment is that the mother who has borne and bred the child is the greatest of all relations. It is unfortunate that this decision of the Sudder Court, based on such doubtful authority, should have been subsequently accepted without question: In the goods of Kamineymoney Bewah (1894) I.L.R. 21 Calc. 697, Sarna Moyee Bewa v. Secretary of State (1897) I.L.R. 25 Calc. 254. But the position was doubted in Bhutnath Mondol v. Secretary of State (1906) 10 C. W. N. 1085 Sundari Dossee v. Nemye Charan Daw (1907) 6 C. L. J. 372 Tripura Charan Bannerjee v. Harimati Dassi (1911) I.L.R. 38 Calc. 493 and in the referring order in the case of Chatoo Kurmi v. Baiaram Tewari (1909) 11 C. L. J. 124. It is clear, therefore, that the course of decisions in this Court on the point since 1846 has not been uniform: Hari Lal Singha v. Rup Maniori Burmoni (1912) 17 C. L. J. 459. In the Madras High Court, the decision in Tara Munnee Dossea v. Motee Buneanee (1846) 7 Mac. Sel. Rep. 325 was followed in Sivasangu v. Minal (1889) I.L.R. 12 Mad. 277 which was accepted as good law in Narasanna v. Gangu (1889) I.L.R. 13 Mad. 133. But in the later case of Subbaraya Pillai v. Ramasami Pillai (1899) I.L.R. 23 Mad. 171 the learned Judges of the Madras High Court expressly dissented from the proposition that degradation on account of unchastity entails, in the eye of the law, complete cessation of the tie of kindred between the fallen woman and the members of her natural family, or between her and the members of her husband's family, observing that, in their opinion, the circumstance that in general it is open to an outcast to resume his former position after expiation (Viramitrodaya, Chapter I, Section 52) strongly pointed to the view that degradation had the effect of rendering dormant at best the tie of kindred. (See Laws of Manu, XI, 60, 177-178, which prescribe the penance for the expiation of an adulterous woman; it is lighter or heavier according to the caste of the male offender: S. B. E., Volume 25, page 467; see also Vasistha, XXI, 8, 12-13, S. B. E., Volume 14, page 112; Vishnu, LIII, 8, S. B. E., Volume 7, page 174). The same view has been adopted by the Allahabad High Court in the cases Disheshur v. Mata Gholam (1870) 2 All. II. C. 11. 300 and Narain Das v. Tirlok Tiwari (1906) I.L.R. 29 All. 4. In some of the cases, again, a question of competition between a degraded and an undegraded person has arisen for consideration, and this, in fact, was the real question before the Sudder Court in Tara Munnee Dossea v. Motee Buneanee (1846) 7 Mac. Sel. Rep. 325; 8 I. D. (O. S.) 347; so also was the question directly in issue in Sivasangu v. Minal (1889) I. L. 11. 12 Mad. 277 and Narasanna v. Gangu (1889) I.L.R. 13 Mad 133. That question of preferential right does not require consideration in the case before us, and we need not consequently determine whether, as stated in Sabbaraya Pillai v. Ramasami Pillai (1899) I.L.R. 23 Mad. 171 the claim of the degraded heir may be preferred to that of the undegraded heir of equal degree on any ' equitable principle.'

11. The extent to which divergence of judicial opinion is possible in cases of this decription is well indicated by the decision in Ramprasad v. Mt. Subu Bai (1908) 4 Nag. L. R. 31. In that case, one Radba was legally married to one Mati Lal, but many years before her death she abandoned her husband, adopted the life of a prostitute and lived as the mistress of Raibhangi. Upon her death, her property, which had been received by her from her paramour, was claimed, on the one hand, by the daughter of her sister, and on the other, by a son of the brother of her husband. The claimants were both of them undegraded, but the defendant, the son of the husband's brother, resisted the claim of the plaintiff, the sister's daughter, on the ground that as a respectable woman she was not entitled to succeed by inheritance to the estate of her mother's sister, who had become degraded by reason of lifelong prostitution. The Judicial Commissioner declined to accept the contention that when a woman has lapsed into prostitution she becomes civilly dead, with the result that the tie of relationship which connects her to her kindred is completely severed. He held that no tie of blood can be destroyed by unchastity, whatever personal disability may be imposed by express provisions of the law upon the person who has become unchaste; consequently, where inheritance is a right arising out of consanguinity, the unchastity or 'degradation of the propositus or proposita, as the case may be, will not divert the descent of property, save where there is an express provision. In support of this view, reliance was placed upon Musammat Ganga Jaii v. Ghasita (1875) I.L.R. 1 All. 46 Advyapa v. Rudrava (1879) I.L.R. 4 Bom. 104 and Kojiyadu v. Lakshmi (1883) I.L.R. 5 Mad. 149 and doubt was expressed as to the view adopted in Ramnath Tolapattro v. Durga Sundari Delti (1898) I.L.R. 4 Calc. 550 Ramananda v. Rat Kishori Barmani (1894) I.L.R. 22 Calc. 347 and Sundari Letani v. Pitambari Letani (1905) I.L.R. 32; Calc. 871. The learned Judge, however, proceeded to hold that prostitution on the part of the wife, during the lifetime of her husband, had operated to dissolve the marriage tie between them, and that they had ceased to be husband and wife, with the result that upon her death neither her husband nor any persons claiming through him could take by inheritance her stridhan property. This view, it will be observed, is founded upon the theory that kindredship by blood stand, in the matter of dissolubility, upon an entirely different footing from the tie of marriage, which, according to the learned Judge, is essentially and necessarily a contract though clothed with sacrament. The learned Judge very emphatically expressed the opinion that it would be anomalous to hold that a married woman who has lapsed into prostitution during the lifetime of her husband is still a wife, but that she has not a single conjugal right or claim attached to her wifehood, that her husband may think her as dead in respect of all rights given to her and all obligations imposed on him by the marriage, such as maintenance, protection, society, and inheritance from him, while he retains all his rights as a husband, including that of succession to her separate estate. From this point of view, it was not difficult to reach the conclusion that where a Brahmin husband totally and finally abandons his wife on the ground of unchastity, inexpiable or unexpiated, so as to destroy all her present and future claims on him and his inheritance, the relationship of marriage is dissolved, so far as it sustains the civil rights and obligations of husband and wife inter se. The same view was adopted in Moharani v. Thakur Proshad (1911) 14 Oudh Oases 234 where it was ruled that property acquired by an unchaste widow by prostitution cannot strictly be called her stridhan in the technical sense of a wife's or a married woman's property, and that property so acquired goes to her illegitimate child and not to the members of her husband's family, upon whom the widow had no claims whatever after she began to live 'with her paramour. It is not necessary, for our present purpose, to examine the question, by no means free from difficulty, as to the true nature of Hindu marriage, and the still more difficult question, whether the marriage tie is dissolved and the relationship of husband and wife annulled by the lapse of the wife into prostitution. Nor is it necessary to examine the, further question whether, assuming the marriage tie to be incapable of dissolution even by reason of prostitution on the part of the wife, the sister's (laughter or husband's brother's son would be the preferential heir to property acquired by her as a prostitute. The learned Judicial Commissioner held that no Hindu law-giver, with his high ideals of female chastity and of spiritual affinity between heir and propositus, would place the husband in the list of heirs to the acquisitions of his fallen wife by and during her degradation. In this view, the Judicial Commissioner held that the plaintiff, who was governed by the Bombay school of Hindu law, was entitled to what was described in Manilal Rewadat v. Bai Rewa (1892) I.L.R. 7 Bom. 758 as stridhan 'improper' of her mother's sister, on the ground that the defendant as the son of her husband's brother was either no heir at all, or if an heir was bound to be postponed to the plaintiff.

12. Upon an examination of the original texts and upon a review of the judicial decisions on the subject, we hold that the mere fact that a Hindu woman has adopted the life of a prostitute does not sever the tie which connects her to her kindred by blood, and, that consequently, the stridhan property of a Hindu woman who has adopted the life of a prostitute passes upon her deaths in the absence of nearer heirs, to her brother's son as an heir under the Bengal school of Hindu law.

13. It is conceded that, as held by the Division Bench, the plaintiff cannot successfully claim the arrears of rent purchased by him. The decree of the Court below must consequently be modified to this extent.

14. In this view, the decree of the Subordinate Judge must be affirmed, subject to the variation mentioned. The respondent will have his costs of the hearing, as well before the Division Bench as before the Full Bench.


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