Report No. 81
Unchastity.- Secondly, they quoted the case of Doe Dem Saummoney Doses v. Nemvohurn Doss, Bell & Tayler's Reports, Vol. 2, p. 300 (Peel, C.J.) (National Archives File, p. 188), (decided under the Caste Disabilities Removal Act, 1850), for the proposition that if a Hindu widow led an immoral life, her rights in the property were not affected. Further, they proposed that instead of the usual Hindu form of marriage with vedic rites, a simple agreement and declaration before a Registrar should be sufficient to constitute a valid marriage1.
1. Petition dated 15th January, 1856 (National Archives File, p. 188).
The Select Committee dealt with this objection on the principle that the greater ought not to involve the lesser privilege. If a Hindu widow turned a Mohammedan and so repudiated the whole Hindu Code, it was admitted that by the law of the land she could contract a valid marriage and that her children by such marriage would be legitimate and would inherit the property of her Hindu ancestors. Nevertheless, if the same widow remained a Hindu, but adopted an interpretation of Hindu law which (though not the interpretation of the majority of Hindus) represented such interpretation of a very respectable minority (a minority which in point of principle alone was not inconsiderable), it was contended that the law of the land ought to make her incapable of contracting a valid marriage.
This the Committee did not consider to be a tenable doctrine. Incidentally, it may be noted that even though in the year 1856 the learned Members of the Select Committee were clear in their minds that conversion from Hinduism did not operate as an exclusionary factor against the convert in the matter of inheritance, half a century later a Full Bench of the Madras High Court in Vitta Tayaramma v. Sivayya, AIR 1919 Mad 854(858, 859, 860), by a majority (Wallis, C.J. and Oldfield, J.) held that a Hindu widow who becomes a Mohammedan and marries a Mohammedan forfeits by the re-marriage her interest in her first husband's estate under the general principles of Hindu law.
Wallis C.J. further held that the forfeiture is entailed by reason of section 2 of the Hindu Widows Re-marriage Act, 1856. Seshagiri Aiyar J. dissented and was of the view that the rule of Hindu law that a widow who remarries and was thus not true to the bed of her deceased husband, could not inherit to his estate can be applied only when she is within the of Hindu law. Her remarriage after apostasy could not divest her of her right to inherit which subsisted in her favour at the date of her conversion to another religion.