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Report No. 81

Forfeiture of rights upon re-marriage.- Sir Robert Hamilton, the Agent of the Governor General for Central India, suggested that a widow ought not to be allowed to retain property left by her deceased husband for life, by will made before the passing of the Act with remainder to the offspring of the testator. The Select Committee felt that the principle of the second section of the Bill was that a widow on her re-marriage should forfeit all that the law gives her of the right in her deceased husband's estate, but that she should retain whatever she has acquired by way of gift whether the gift were testamentary or by act inter vivos.

The reason for this distinction was that the very peculiar interest which the Hindu law of inheritance gave to a widow in her deceased husband's estate was really, if the texts were examined, intended to be no more than an interest durante viduitate that the conditions on which it is given to her were inconsistent with a second marriage and though she was entitled to the unrestricted possession of the estate, she could not, except in certain exceptional cases, alienate any part of it.

Any absolute interest which she took by gift stood on a different footing. If the donor has attached no conditions to the gift-the Committee felt-they were not to speculate on his motives or to ask whether he would or would not have made the gift conditional if he had foreseen the alteration of the law. In no case was the forfeiture intended to be a penalty or to operate as a restriction on a second marriage.

It was imposed in the one case because it was a consequence of a condition which the law annexes to the estate, it was imposed in the other, because the legislature was under no obligation to create conditions on a gift which the donor has made unconditionally, but it often happened that by will a testator gave to his wife very much the same kind of interest as that which, if his heiress at law, she would take on an intestacy. He might sometimes vary the legal incidence of her estate, but still have it so as to be limited in duration and enjoyment and to give her no power of alienation. It seemed to the Committee that all these gifts which more or less partook of the nature of Hindu widow's estate of inheritance should be put on the same footing as the latter.



Hindu Widows Re-marriage Act, 1856 Back




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