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Report No. 81

2.9. Views of Mulla and Gupte.-

Some differences have arisen amongst writers on the subject. The matter has been put thus in Mulla1:

"Re-marriage of a widow, is not now under the Act a ground for divesting the estate inherited by her from her husband. The Hindu Widows ReĀ¬marriage Act, 1856, though it legalised the re-marriage of a Hindu widow, had the effect of divesting the estate inherited by her as a widow. By her second marriage she forfeited the interest taken by her in her husband's estate, and it passed to the next heirs of her husband as if she were dead (section 2 of that Act). 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 share2 or interest in her husband's property that may devolve on her by succession under the present section.

Her re-marriage, which would evidently be after the vesting in her of her share or interest on the death of the husband, would not operate to divest such share or interest. The Hindu Widows Re-marriage Act, 1856 is not repealed but section 4 of the present Act in effect abrogates the operation of that Act in the case of a widow who succeeds to the property of her husband under the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."

A different view has, however, been expressed by Gupte3. According to the learned author, section 2 of the Hindu Widows Re-marriage Act, 1856 has not been abrogated by section of the Hindu Succession Act, 1956; that "although section 2 of the Hindu Widows Re-marriage Act, 1856 was drafted at a time when a widow succeeding to her husband's or to his lineal successor took only a limited estate, the language of that section is capable of applying to a widow having an absolute estate".

He further states "it is however still possible to urge as a matter of construction of section 2 of the Hindu Widows Re-marriage Act that she would forfeit her estate, "though full, especially, as that Act has not been repealed4. 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 Re-marriage Act which has not been repealed."

1. Mulla's Hindu Law, 14th Edn., 1974, p. 869.

2. Emphasis added.

3. Gupte Hindu Law of Succession, (1972), pp. 457-458.

4. Emphasis added.

Hindu Widows Re-marriage Act, 1856 Back

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