1. This is a suit brought by a Hindu widow against her co-widow, for partition of the estate of her husband, Nilmoni Dey, who died on the 22nd May 1910. The plaintiff was married in January 1860 and the defendant in 1866. It is admitted that these are the only two heirs whom he left him surviving. The defendant, however, questioned the plaintiff's right to succeed on the ground that she bore 'malignant hostility and bitterness towards her husband all through her life.' It has been strenuously argued on behalf of the defendant that, under the Hindu Law, she is under the circumstances not entitled to succeed The contention, as I have understood it, is this. That the word Patni (* *) in the text of Yajnavalkya, II, 136-137, means lawfully wedded wife, one married according to one of the approved forms of marriage. The word etymologically means a wife who is an indispensable associate of her husband in religious rites and observances. That being so, she must be a sadhwi (* *) which is defined in Manu thus:
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Manu V, 165.
2. The passage is rendered by Sir William Jones thus--'While she who slights not her lord, but keeps her mind, speech and body devoted to him attains her heavenly mansion and is called sadhwi by goodmen.' I may mention that Haughton in his Institutes of Manu, Edition 1825, page 372, refers to this couplet and the next one as not found in the three copies of Medhatithi that he had the opportunity of consulting. These couplets, however, appear in Kulluk Bhatta's commentaries, and we may proceed upon the basis that they are not interpolations. His note is as follows::
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Namely, that so far as Vak and Manas, speech and mind, are concerned, this verse contains the Vidhan (*) and that, so far as the body is concerned, the mention of it is an Anuvad (*) a repetition, superfluous or self-evident. It has to be remembered that the Manava Dharma Shastra (* *) is a book of mixed religion, morality and law, and in a great many instances contains appeals to one's moral side and it is impossible to accept the whole of it as a legal thesis. These couplets occur in a chapter of miscellaneous character, dealing with edibles, impurities, and methods of purification, and finally with rules relating to the duties of women (stridharma) and can hardly be looked upon as anything more than directions for regulating one's life, some of them in the way of precepts or moral injunctions. Verse 166 says that a woman by this course of life acquires high renown in this world, and in the next, the same abode with her husband. It is quite clear that the word sadhwi has not received the wider meaning that has been given to it in Manu Smriti in dealing with the question of inheritance. In Yajnavalkya the passage about the right of a widow to inherit is the subject of a long commentary. We find that Briddha Manu as there quoted says that 'the widow succeeds keeping unsullied her husband's bed, and persevering in religious observances (* *).' Katyayana is also there quoted: 'Let the widow succeed to her husband's wealth, provided she be chaste,' the word used being abyabhicharini (* *), which admits of no ambiguity. Then we find in the Vyavahara Mayukha, Section 8, Part II, Katyayana is again quoted, followed by a quotation from
3. 'Harita' which has been thus translated::
If a woman, becoming a widow in her youth, be headstrong (suspected of incontinence,), a maintenance must in that case be given to her, for the support of life,' II Cole. Dig., 536, ccccix. The word used is (*) which has been translated as headstrong, (suspected of incontinence)--Sankitavyabhicharaya--See Viramitrodaya, Chapter III, Part I, Section 10. In Vivadachintamani, Harita is again quoted. The passage has been thus translated: 'If a young widow is untractable,' &c;, II Cole. Dig., 538, ccccix. The commentator says that the chaste wife is entitled to the property. In the Vishwakosa, one of the meanings given to the word Karkasa is 'unchaste' 'Vyabhicharini.' In Saraswati Vilash, 528, Vishnu is quoted thus: 'The share allotted to women who transgress their limits may be resumed'--'who transgress their limits' means 'unchaste.' Narada is quoted. The passage has been thus translated: 'His women if they keep their husband's bed inviolate shall be maintained till their death, but if they do not, they shall not be.' Narada xiii, 26.
4. In the Dayabhaga, these passages from Briddha Manu and Katyayana are quoted, and also another from Vyasa which has been thus translated: 'After the death of her husband, let a virtuous woman observe strictly the duty of continence,' Dayabhaga, Chapter XI, sec. 1, 43, II Cole. Dig., 528, cccc. I do not think there is any doubt whatsoever that the only disqualification for a widow to inherit her husband's estate is that one of physical unchastity. To give it a more extended sense, that she forfeits her right or does not become entitled to inherit unless she has kept her mind, speech and body devoted to her husband is not justified by the interpretation which has been put upon the passages quoted. This is also the meaning put upon them by Srikrishna in his commentary. He says sadhwi (*) means 'not adulterous.' As regards the authority of Srikrishna, Mr. Justice Dwarka Nath Mitter says that 'he is considered a greater authority as being superior even to the authority of Dayabhaga.' I know that a later commentator of note does not consider Srikrishna of such high authority. But there is no question, it seems to me, upon a comparison of all the commentaries on these passages, that sadhwi (* *) means a chaste woman who keeps the bed of her husband inviolate. These passages were elaborately discussed in what is known as the 'Chastity Case' by Justice Dwarka Nath Mitter. See Kery Kolitany v. Moneram Kolita 13 B.L.R. (F.B.) 1 : 19 W.R. 367. The question raised and decided in that case was that a Hindu widow who was unchaste was not entitled to succeed. On page 19 of the judgment, the following passage occurs: 'It has been said that some of the texts quoted above refer to many other virtues besides chastity, and that the argument in favour of forfeiture would be equally strong in the case of the widow's derilictions in respect of those virtues, as in the case of her failure to preserve her chastity. But the answer to this objection is very plain. A chaste widow who has failed to perform her duties to-day may perform them on some future date. But a widow, who has once sullied the bed of her lord, not only causes her husband's soul to fall into a region of torment, but becomes from that time absolutely incompetent to do anything, for his spiritual welfare.' He held that if a Hindu widow failed in her other duties, she might expiate and inherit the estate, but their non-performance was not a disqualification.
5. It has been further argued that, according to Narada XIII, 21, an enemy to his father (* *) takes no share of the inheritance, that such disqualification extends to 'enmity to the propositus'--(Golap Shastri's Hindu Law, 4th Edition, page 362) and as all grounds of disqualification which exclude males apply equally as against female heirs (Mitakshara II, 10 , 8, Mayne: 7th Edition, page 811), the plaintiff in this case is not entitled to inherit. It was further argued that if disobedience and hostility were minor grounds for forfeiture, removable by penance, the plaintiff could not inherit until she had performed the prescribed penance, and the case of Bhola Nath v. Mt. Sabitra 6 S.D. 62 at p. 71 was cited in support of the contention, but what the nature of the penance is to be, has not been suggested, and need not be considered. Now, the expression * * is thus explained in Saraswati Vilash, 152: 'Those who hate their father, i.e., those who say, 'this is not my father, etc'' For otherwise when the son hates his father because of the latter's partiality, a share is ordained for him. In the Dayakrama Sangraha, Chap III, Section 3, 'an enemy to his father' is interpreted as 'one who ill-treats his father, during his life time, or one who is averse to performing his obsequies when dead.' In Vivada Ratnakara, Chap. V. 'He who hates his father' is thus interpreted: 'He who hates his father is the enemy of his father. Such hatred terminates in compassing the death of the father when he is alive and in refusing to offer for the benefit of his soul libations of water, etc., when he is dead.' In Vivada Chintamoni, the commentary is: ''Enemy of the father,' one who beats his father while alive and is averse to perform his sradha, etc, after his death.' In Dayatatwa, 'an enemy to his father' is said to mean 'one who abuses him by beating and the like while he is alive, and who is unwilling to perform his funeral obsequies when he is dead.'
6. Assuming that malignant hostility excludes, there is not a particle of evidence of such or any hostility against the plaintiff. The only witness was the defendant herself and most of her evidence was hearsay. She is also shown to be altogether unworthy of credit, as shown by the fact that she claimed properties in her deposition as gifts against her own written statement in this case. All that her evidence comes to is that the plaintiff refused to come to her husband when sent for. After the husband married a second time, the plaintiff found it impossible to live with him owing to the treatment she received. That is all that we have against her, which is no evidence of hostility. The expression 'dwesh' in Narad's text, according to the commentators, means physical violation coupled with a refusal to perform his sradh, etc., and one of them says that the hatred must be such as 'terminates in compassing the death' of the propositus. I hold that the plaintiff is not disqualified because she did not live with her husband or even if she refused to live with him and her co-wife. There is no evidence at all that she was guilty of any misconduct, in body, speech or mind.
7. I, therefore, declare that she is entitled to inherit the estate of her husband equally with her co-widow. The parties agreed that if I took the view that the plaintiff was entitled to share the inheritance with her co-widow, the estate to be divided amongst them consisted of Government promissory notes of the value of Rs. 1,09,000 and a house No. 25, Hidaram Banerji's Lane. I direct that the Government securities be divided between them in equal shares. The house is also to be divided into two equal shares in the usual way. The estate is to be held by them as Hindu widows.
8. Costs of the hearing of the issues raised will be treated as costs in a partition suit, that is to say, each party will bear her own costs before the decree for partition. All subsequent costs will be according to their respective shares. The defendant will bear her own costs of the commission and pay the plaintiff her costs thereof taxed for three sittings only. Costs of the inquiry as to maintenance will be taxed as costs in the cause. The amount due from the plaintiff on account of Kali Charan Dey is to be debited to her share. All other undisposed of costs will be costs in the cause.