1. The question submitted for the opinion of this Bench, as stated by Mr. Justice WILSON, is as follows:
In this case a Hindu widow inherited the property of her husband, taking therein the estate of a Hindu widow. She afterwards married a second husband, not a Hindu, in the form provided by Act III of 1872, having first made a declaration, as required by Section 10 of the Act, that she was not a Hindu. The question is whether, by that marriage, she forfeited her interest in her first husband's estate in favour of the next heir.
2. I think that the decision in Gopal Singh v. Dhungazee 3 W.R. 306 is wrong, and I agree with the learned Judges who referred the question that it must be answered in the affirmative. It is, I think, concluded by Section 2 of the Hindu Widow's Marriage Act, XV of 1856, and I do not think it necessary to express any opinion on the other points which have been mentioned in argument and which are discussed in the judgment of the Judges who constituted the referring Bench.
3. The first two sections of the Act are as follow:
1. 'No marriage contracted between Hindus shall be invalid, and the issue of no such marriage shall be illegitimate, by reason of the woman having been previously married or betrothed to another person who was dead at the time of such marriage, any custom and any interpretation of Hindu law to the contrary notwithstanding.'
2. '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 re-marry, only a limited interest in such property, with no power of alienating the same, shall, upon her re-marriage, 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.'
4. Section 1 no doubt relates to marriages between Hindus, but Section 2 includes all widows who are within the scope of the Act, that is to say, all persons who being Hindus become widows, and it must follow from this that if any such widow marries, she is deprived by the section of the estate which she inherited from her Hindu husband. The words are clear--'All rights which any widow may have in her deceased husband's property by inheritance to her husband;' the estate which a Hindu widow takes upon her husband's death in his property is an estate which she takes by inheritance to him, and such estate is expressly determined by the section.
5. My answer to the question is, that by marriage the widow forfeited her estate in her first husband's property in favour of the next heir.
6. The result will be that the appeal must be allowed and the decree of the First Court reinstated with costs of the three hearings in this Court and the costs of the Lower Appellate Court.
7. I agree. I think it unnecessary to say more, as I expressed my views in making the reference.
8. I agree.
9. I agree in the answer which the Chief Justice has given to the question referred.
10. The inclination of my own opinion has been always against the view expressed by my two learned colleagues who joined with me in referring this case to a Full Bench, and I still have doubts which the further argument has failed entirely to remove.
11. Act XV of 1856 is entitled an Act to remove all legal obstacles to the marriage of Hindu widows, and it provides for such marriages according to the rites and ceremonies current amongst Hindus. The widow in the case before us ceased to be a Hindu by a public declaration abjuring that religion, and her re-marriage was under Act III of 1872, entitled 'an Act to provide a form of marriage in certain cases.'
12. That Act was passed by the Legislature expressly for cases of this description. If the widow had merely renounced the Hindu religion, admittedly she would not have ceased to hold her deceased husband's estate. She could not, after her conversion to another religion, confer on him what are known in Hindu Law as spiritual benefits, but it is said she would still be regarded as a part of her husband's body, and as such in possession of his wordly properties. It has been contended that her title is only during her widowhood, durante viduitate, in consequence of the principle under which she is recognized as proprietress after her husband's death. It is difficult to understand how that legal fiction can be maintained if after her husband's death the widow were to become a Muhammadan or Christian. The Statute, however (Act XXI of 1850), has provided that a change of religion shall not operate as a forfeiture, and according to the opinions, in which I am unable to agree, a re-marriage not as a Hindu would have that effect. We have also the anomaly that, although she may change her religion and cease to be a Hindu, so long as she remains a widow, she continues as a Hindu to hold her husband's estate that she does not forfeit this by leading a notoriously unchaste life see Moniram Kolita v. Keri Kolitani I.L.R. 5 Cal. 776 but that if she re-marries she forfeits, because she ceases to be a widow, and because the conditions under which she retained her husband's estate as part of his body no longer exist. I have the misfortune of being unable to agree that Section 2, Act XV of 1856, is of general application to all Hindu widows remarrying, for I read it as being limited only to the cases provided for by that Act, viz., Hindu widows re-marrying as Hindus under Hindu law as provided by that Act. Having still these doubts regarding the views expressed by my learned colleagues, I regret to be unable to concur in the judgment delivered. A.A.C.