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Report No. 81

Childless widow.- Another objection to the proposed bill was as follows:-

"If a Hindu dies leaving two daughters both of whom are widows, but the one has a son and the other no children, by the law of inheritance the son will be the sole heir of his maternal grandfather, but if the childless widow contracts a second marriage and has issue by her second husband, by the proposed law they would be entitled to equal shares of the property of their mother's father with the son of the widow who has not remarried".

The Select Committee characterised the objection as ill-founded, because, if a Hindu died leaving neither male issue, nor a widow, but daughters, an unmarried daughter was entitled to take to the exclusion of the other daughters who had been married, whether they were childless widows or had or were capable of having issue. In default of an unmarried daughter, daughters who had or were capable of having issue, should take. A daughter who was barren or a childless widow was altogether excluded.

Even though the petitioner's objection was thus overruled, the Select Committee found that the argument of the petitioners suggested a difficulty, namely, that being incapable of having lawful issue, a childless widowed daughter could not continue her father's line and was excluded from inheritance. If the Act were to remain silent on the subject, it might thereafter be contended that cassante ratione cessat lex. (The maxim as given in 'Latin for lawyers' reads: Cessante ratione legis, cessat ipsa lex. The reason of the law ceasing, the law itself ceases).

Though the Select Committee saw no positive injustice in such a conclusion, yet to avoid confusion thought it desirable to provide that no person who, by reason of her being a childless widowed daughter on the death of any other person only, according to the existing law, be excluded from a share in property inheritable on the death of such other person, shall take any share in that property, because she might thereafter avail herself of the provisions of this law and shall become capable of having issue.

Hindu Widows Re-marriage Act, 1856 Back

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