Rights of Hindu Women in Marriage
I.Introduction
The objective of this research is to study the civil rights of Hindu women in Bangladesh relating to family and property. These include rights of Hindu women in adoption or rights of maintenance. A woman has many important rights before and after her marriage. A girl has different rights in her father’s family which are different from her husband’s family. A right of a woman differs with the position of her marital status. She is entitled to get her father’s share she also entitled to get her maintenance and other properties which she gets from her husband.
We know about different types of rights of a Hindu woman which are described in many texts and shastras of Hindu law. Excluding the shastric law there are many judge made law. This research includes some precedents relating to the rights of Hindu women which establish the rights of Hindu woman over their properties and personal life.
Shastric Hindu laws are used by the Hindu community. But from ancient times we see some violation of rights of Hindu women. Some other rights are depending on her husband’s consent. But in some cases and upon the decisions delivered by judges of Supreme Court of Bangladesh established and developed the rights of Hindu women.
The establishing rights which are come out from such decisions are included in this research. The purpose of this research is to describe about the judge made law and analysis of those cases relating to Hindu women’s rights, establishing the rights which were violated from ancient times.
There are different types of texts and shastras of Hindu law. Excluding that there are various types of books by different writers. But no books and no texts have not described the judge made law along with the analysis of the cases of Supreme Court. This one is the main exceptional point of my research from the other books.
II.Rights of Hindu women in marriage
Hindu marriage is necessarily the basis of social organization and foundation of important legal rights and obligations. In shastric tradition Hindu marriage is treated as sacrament. Hindu marriage is holy union for the performance of religious duties.
According to Hindu shastriya law it is more a religious than a secular institution. It is the last of the ten sacraments or purifying ceremonies. The shastras enjoin the followers to marry for purpose of procreating sons necessary for the continuation of line of paternal ancestors and for the spiritual benefit of their and his souls.
In ancient times, the daughter was regarded as an item of property and the marriage involved the idea of transfer of dominion over the damsel from the father to the husband. It appears to have owed its origin to the partia potestas of the Roman law.<href=”#_ftn1″ name=”_ftnref1″ title=””>[1]
III.Legal consequences of marriage
Guardianship
After marriage the wife is placed under the control of the husband, who is entitled to custody of her husband, when she is minor even in reference to her father. But when the husband is a minor he can not be the guardian of his minor wife. The deceased husband’s relations are entitled to be her guardian in preference to her preference to her paternal relations.
Maintenance and residence
The wife is bound to reside with the husband wherever he choose to live. A wife’s first duty to her husband is to submit her obediently to his authority and to remain under his protection. Therefore, she is not entitled to separate residence and maintenance. The husband is bound to maintain his wife and to live with her. The wife is entitled to the right of maintenance against the husband personally so long he is alive and against the estate after his death. But if the wife resides in her father’s house against the will of the husband, she can not claim maintenance while living apart.
A wife living apart from her husband for no improper purpose may at any time return and claim to be maintained by him. He can not under the provisions of the Succession Act, 1925 execute a will to defeat such a right. The amount of maintenance depends on various circumstances such as social standard, husband’s property etc. A wife is entitled to maintenance though her husband abandons Hinduism.
Restitutionofconjugalrights
In case of breach of marital duties, the either party may institute a suit for restitution of conjugal rights. The health or inability to afford her husband the marital rights is no ground for husband’s refusal to give her protection.
The court may refuse to pass decree for restitution of conjugal rights against the wife, if the husband is suffering from a loath some disease, such as leprosy or syphilis or if he keeps a concubine in the house, or is guilty of cruelty in a degree, rendering it unsafe for the wife to return to her husband dominion or if he adopts another religion. But the mere fact of the husband marrying a secured wife or mere infidelity on the part of the husband or the fact that the wife is a minor is not by itself sufficient to disentitle the husband from claming restitution of conjugal rights.
Marriage in Hindu law is regarded as an indissoluble union of husband and wife extending to the next world. Divorce is not recognized by Hindu law unless allowed by custom. Change of religion or loss of caste does not operate as dissolution of marriage, nor does the adultery of either party, none even the fact that the wife has deserted her husband and has become a prostitute.<href=”#_ftn2″ name=”_ftnref2″ title=””>[2]
IV.Remarriage of widow
Formerly remarriage of widow’s was in vogue only in some localities and among some classes only. But since the middle of the 19th century it has been legalized as to all classes of Hindus and as to all localities by the Hindu Widow’s Remarriage Act (Act XVof 1856).
With respect of ceremonies, S. 6 of the Act provides that “whatever words spoken, ceremonies performed or engagements made on the marriage of a Hindu female who has not been previously married, are sufficient to constitute a valid marriage, shall have the same effect if spoken, performed or made in the marriage of a Hindu widow and no marriage shall be declared invalid on the ground that such words, ceremonies or engagements are inapplicable to the case of a widow.”
As regards guardianship in marriage, S. 7 provides that, “if the widow remarrying is a minor whose marriage has not been consummated, she shall not remarry without the consent of her father, or if she has no father, of her paternal grandfather, or if she has no such grandfather, of her mother, or failing all these of her elder brother, or failing also brothers, of her next male relatives. And all remarriages contrary to the provisions of this section may be declared void by a court of law provided that no such remarriage shall be declared void after it has been consummated”. In the case of a widow who is of full age, or whose marriage has been consummated, her own consent shall be sufficient consent to constitute her remarriage lawful and valid.<href=”#_ftn3″ name=”_ftnref3″ title=””>[3]
Under the general principle of Hindu law, a widow entering into a lawful wedlock for the second time can not retain the property of her previous husband.
Marriage Case No. 1.
Nurun Nabi Mondal and others v. Joynal Abedin Khondkar and ors.<href=”#_ftn4″ name=”_ftnref4″ title=””>[4]
Hindu widows in general without exception are deprived of the right to inherit and retain the property of the previous husbands when they remarry after their husbands’ death.
All the High courts of the Indian sub-continent except that of Allahabad have taken the view that under the general principle of Hindu law, a widow entering into a lawful wedlock for the second time can not retain the property of her previous husband. It is also the view of the said High courts that the provision of S. 2 of Act XVof 1856 which is not inconsistent with the general principle of Hindu law is comprehensive enough to cover the case of a widow whose remarriage is sanctioned by the custom of her caste and that she also forfeits her right to her previous husband’s property on her remarriage by virtue of the said provision.
We have seen that the right of which was conceded by the said Act to the Hindu widows was not something new in Hindu law. We have also noticed that the disentitlement of a Hindu widow on her remarriage, to retain the property of her previous husband, as has been prescribed by S. 2 of the Act is consistent with the general principles of Hindu law and also with the social practices of Hindus when such marriages were in vague.
Provision of S. 2 is not inconsistent with the general principle of Hindu law of inheritance and has not introduced any new kind of disability, as supposed in the Allahabad view.
From the above text it appears that a widow shall have a right of enjoyment of her husband’s property, during her life time but shall have no right to transfer the property in any way and after her death, the property shall go to her own heirs.
This appeal by special leave at the instance of one of the plaintiffs of a suit for a declaration of title and recovery of possession of a certain property is against a judgment of the Chief Justice of Dhaka High Court, sitting singly, allowing a second appeal and dismissing the plaintiff’s suit. It raises the question as to whether under the Hindu Widow’s Remarriage Act (Act XVof 1856) a Hindu widow forfeits her right to her deceased husband’s property on her remarriage.
A disputed property belonged to one Ram Chandra Malla, who died several years ago leaving behind a widow named Jagadaya Mallani, who inherited her husband’s property as his sole heiress. A few months after the death of her husband the said widow having remarried one Bokhan Malla, the property she inherited from her previous husband, according to the plaintiff’s case, stood forfeited and devolves on one Akaluram, the reversionary heir of the said property. Akaluram there after settled a part of the property with respondent no.13 and sold the rest property to the predecessor of the appellants. The said lessee and the purchaser, having been resisted in their attempt to take possession of the disputed property by the defendants on the plea of title alleged to have been acquired by the said defendant from Jagadaya Mallani, instituted the suit for recovery of possession.
The defendant sought to make out a case in their written statement firstly, that there was no remarriage of Jagadaya Mallani with Bokhan Malla but she lived with him as his concubine and secondly, that there having been a custom of remarriage in the community to which the Mallas belonged, there was no forfeiture of the property she inherited from her husband.
On a consideration of the evidence as record and relying upon the decision referred to above the trial court came to the finding that there was no such evidence as showed that the custom of remarriage had been in vogue among the Mallas before the enactment of the Hindu Widow’s Remarriage Act, 1856 and as such held that the provision of S. 2 of the Act was unavailable in her case.
On appeal, the learned Additional district judge who heard the appeal affirmed the finding of the trial court that there was no evidence to show that the custom of remarriage was prevalent among the Mallas before the promulgation of the Act and taking which of a Division bench decisions of the Dhaka High Court in the case of Saudamini RoyMalakar v. Narendra Chandra Barman, dismissed the appeal holding that both under the Act as well as under the principle of Hindu law, a Hindu widow by her remarriage forfeited her right to her husband’s property even if remarriage is allowed under the custom of her caste. A second appeal against the said judgment being heard by the learned Chief Justice of the Dhaka High Court was allowed and the suit was dismissed. There having been no such evidence on record in the said case, it was ultimately remanded to the trial court for findings on two issues under order 41, rule 25 of the Code of Civil Procedure, 1908 namely, whether there had been any such ancient custom of widow remarriage and whether, if there had been a corresponding custom of forfeiture of widow’s right to her previous husband’s property.
On the analysis of the principles laid down in all these decisions referred to above, it appears that the question, whether a widow losses her right to her husband’s property on her remarriage which is sanctioned by the custom of her caste has been approached mainly from two different stand points, namely, the one relating to the principle of Hindu law and the other being solely a question of interpretation of the positive provision of S. 2 of Act XVof 1856.<href=”#_ftn5″ name=”_ftnref5″ title=””>[5]
On a review of the important judicial authorities having a bearing on the point in the light of the principle of Hindu law relating to a Hindu widow’s right to the property of her deceased husband and the effect of her remarriage on such right and on an examination of the provision of Hindu Widow’s Remarriage Act, 1856, we were of opinion that a Hindu widow’s right to her deceased husband ceases on her remarriage even though such remarriage is sanctioned under the custom of her caste, both under the general principle of Hindu law as well as under S. 2 of Act XVof 1856.
The result therefore, is that this appeal is allowed, the judgment and decree of the High Court are set aside and the decrees of the court below are restored, but there shall not be any order as to cost is this appeal.
V.Position of daughter after marriage
A daughter on marriage ceases to be a member of her father’s family. So she is entitled to be maintained by her husband and after husband’s death out of the husband’s estate then her father-in-law. If he has got a sufficient property of his own is morally though not legally bound to maintain her, but after his death she acquires a legal right to be maintained out of his estate.<href=”#_ftn6″ name=”_ftnref6″ title=””>[6]
If the daughter is unable to obtain maintenance from his family- his father, if he has got a separate property of his own, under a moral obligation to maintain her.
But it is not settled whether, after the father’s death she acquires a legal right to be maintained by his heirs out of the estate.
Marriage Case No. 2.
Matilal Sarcar and others v. Brajabashi Biswas and others.<href=”#_ftn7″ name=”_ftnref7″ title=””>[7]
An heir under the Hindu law is legally bound to provide, out of the estate which descends to him, maintenance for those persons whom the late proprietor was legally or morally bound to maintain. The reason is that the estate is inherited subject to the obligation to provide for such maintenance.
This appeal is by the defendants in a suit filed by the plaintiff Brajabashi Biswas and another for declaration of title and recovery of khas possession of the suit land on the ground that Rajeswari, a life estate holder, transferred the property to the defendant Matilal Sarcar without any legal necessity and the sale is not binding on the reversioners the plaintiffs, after the death of Rajeswari.
Admittedly, the suit land belonged to one Budharam exclusively by partition with his co-sharers. Budharam died leaving a widow Rajeswari Dasya, two widowed daughters (sonless), namely, Phulamala Dasya and Kalabati Dasya, and the plaintiff, his sister’s son. Rajeswari inherited a life estate only in the properly in suit. She sold the land of item no. 1 of the schedule to the plaint to defendants nos. 5-8 and items nos. 2-13 of the plaint schedule to defendant no. 1 on the 15 Falgoon 1360 B.S. corresponding to 27.02.54. The plaintiff’s case is that the sale of item no. 1 properly to defendants nos. 5-8 was without any legal necessities, that Rajeswari brought defendants nos. 1 to 3 in her house and began to maintain them, that in collusion with the defendants she sold the land mentioned in items 2-13 of the plaint schedule to defendant no.1, that this sale also was without legal necessities and collusive and without any consideration, that Rajeswari died on 20.10.54, that the plaintiffs being the sister’s sons of Budharam, are the reversionary heirs of Budharam and they ask the defendant to give up possession of the land in suit on 21.10.54, but the defendants in collusion with each other did not give up possession of the land in the suit in favour of the plaintiffs, and dispossessed them from the same.
Therefore, the plaintiffs filed the suit for declaration that they have got right, title and interest in the suit land and the defendants have got no right to dispossessed the plaintiffs from the land in suit and that the defendants are merely trespassers in the land in suit.
The plaintiff also allege that Budharam was a well-to-do man, that he had no debt that he left movable property also, that the usufructs of the property left by Budharam was sufficient for the maintenance of Rajeswari, that there was no legal necessity for selling the land in suit to defendant no. 1 as well as to defendant no. 5.
The suit was contested by defendant no. 1 denying the material allegations made in the plaint and he asserted that Budharam’s two daughters, defendants nos. 3 and 4, who became widows after some time were compelled to take shelter in their father’s house, as their husbands had no property. That Budharam had some debts and Rajeswari also incurred debts for the maintenance of herself and her widowed daughters and for repaying the debts of Budharam and for the sraddha of Budharam, as the usufruct of the property left by Budharam was not sufficient for her maintenance, that Rajeswari had to maintain herself and her daughters by borrowing money from defendant no.1 and from others and from usufruct mortgage, that as Rajeswari found no means of maintenance as most of her lands were in mortgage, and for paying off the debts, she offered to sell the land of item no.1 was for legal necessities and for valuable consideration and defendant no. 1 has acquired right, title and interest in the land in suit by purchase. The defendant also denied that the plaintiffs are the sisters sons of Budharam of or are the next reversionary to be competent to maintain the suit.
The trial court dismissed the suit, holding that the sale to defendant no. 1 by Rajeswari was for legal necessities, for paying of debts incurred by Rajeswari, for the maintenance of herself, her widowed daughters and her grand daughters, who are entitled to get maintenance under the Hindu law and for the sraddha of her husband Budharam. The trial court also found that the solehnama field by defendants nos. 5-8 was collusive and fraudulent and as such refused to record the comprise.
On appeal, the learned additional district judge decreed the suit so far it related to the properties nos. 2-13 sold to defendant no. 1, holding that the evidence of legal necessity adduced by the defendant was contradictory and as such, not satisfactory to prove the legal necessity and affirmed the judgment and decree of the trial court in respect of properly no. 1 sold to defendants nos. 5-8. He also found that the evidence adduced by the defendants to prove that the widowed daughters of Budharam were really destitute to be entitled to get maintenance from the property life by Budharam also not satisfactory.
It is necessary to ascertain whether the widowed daughters of the deceased are entitled to get maintenance from the properties of their father. The evidence of defendant no. 1 is that Phulamala became a widow during the life time of Budharam and came with her little daughters to stay with him. The evidence of defendant no. 3 is that Sanatan, the husband of Phulamala, died before the death of his father. There is no evidence that Sanatan had any property of his own and as such, Phulamala is not legally entitled to get maintenance from her father-in-law’s property, if any. It is a moral obligation for her father-in-law to maintain her. Further there may be circumstances in which it is not possible for a Hindu widow to stay at her father in laws house after the death of her husband. If there are such circumstances, certainly she can be treated as destitute to be maintained by her father’s property under the Hindu law. Apart from this consideration the fact remains that during the life time of Budharam his daughter Phulamala came with her daughters to stay with her father and, on his death, they were dependent on the family of Budharam and were entitled to be maintained out of the property left by the deceased.
Now coming to the other widowed daughter Kalabati, the evidence of defendant no. 1 is that she was married after the death of Budharam and soon after she became a widow and came to stay with her mother Rajeswari and the expenses of this marriage had been met by Rajeswari out of the income of the property of Budharam as well as by borrowing. Even if it is accepted that Kalabati became a widow after the death of Budharam the evidence of defense side is that her husband left no property to maintain her. On the other hand the plaintiffs could not prove that she had sufficient means to be maintained out of the property of her husband. In this view of the matter, she was also entitled to get maintenance from her father’s property when she came to stay as destitute daughter of the deceased Budharam.
The opinion expressed by the Calcutta High Court is that she does acquire such a right, provided she is unable to obtain maintenance from the husband’s family. In view of the fact that Kalabati’s husband left no means for her maintenance and in the absence of any evidence that there are means or properties out of which Kalabati could be maintained, she is entitled to be maintained out of the property of her father in the hands of her mother. So if Rajeswari borrowed money for her own maintenance as well as for the maintenance of the widowed daughters and their daughters, these expenses come within legal necessity and if she transferred the property on account of this loan, the transfer is for legal necessity.
In view of this evidence the findings arrived at by the learned additional district judge, that the widowed daughters come to live with Rajeswari not because they were destitute but because the mother wanted them to live with her in absolutely without any foundation and are liable to be set aside. Further, if the widowed daughters are destitute, their daughters also came within the meaning of destitute relations to be maintained out of the income of the property left by Budharam, and, if Rajeswari borrowed money and incurred loans for the maintenance of herself and her daughters, they are legal expenses and if, for the loans incurred by her, she transferred the property in satisfaction of the loan taken from defendant no. 1 it is for the legal necessity.
The result, therefore, is that this appeal allowed with costs and the judgment and decree of lower appellate court are set aside and those of the trial court restored. In view of the decision in the appeal the connected rule has become infractions and it is discharged without any order as to costs.
VI.Distinction between different forms of marriage
The chief distinction between approved and disapproved forms of marriage is that wife married in an approved form becomes a patni; but one espoused in a form does not become a patni; but one espoused in a form does not become a patni. It is to be remembered that according to mitakshara law a patni or a lawful wedded wife is sapinda of the husband with natural rights of successions; whereas a wife, who is married in a disapproved form, does not become her husband’s sapinda and can not inherit from her husband nor can be inherit from her.
In modern times, however this distinction has no practical importance, because wives exposed in the asura form of marriage enjoy the rights of patni. Modern tendency is to regard every marriage, brahma or asura is the approved form of marriage.
In short, where a question arises as to whether a marriage was in approved or in a disapproved form, the presumption is that it was an approved form unless the country is proved.<href=”#_ftn8″ name=”_ftnref8″ title=””>[8]
Marriage Case No. 3
Utpal Kanti Das v. Monju Rani Das.<href=”#_ftn9″ name=”_ftnref9″ title=””>[9]
Once the celebration of a marriage in fact is established there shall be a presumption of there being a marriage in law and observance of the essential ceremonies.
As marriage in fact has been proved in this case, marriage in law must be presumed. In the absence of any evidence to the contrary it is therefore, proved that the plaintiff and the defendant were married according to the Hindu shastra. Having denied the marriage altogether and, in fact, having not raised the plea of invalidity of the marriage because of non performance of an essential rite, it is futile for the defendant now to come to this court and pleaded that the marriage was bad in law for want of performance of any of the essential ceremonies, such as saptapadi.<href=”#_ftn10″ name=”_ftnref10″ title=””>[10]
In this appeal by leave the defendant Utpal Kanti Das calls in question the property of the judgment and order dated 6 February 1994 passed by the High Court Division in civil order no. 653 of 1994 summarily rejecting his revisional application against the judgment and decree dated 10 November 1993 passed by the learned additional district judge, Manikganj in family appeal no.1 of 1992 reversing those dated 18 January 1992 passed by the family court, Saturia dismissing family court case no. 8 of 1991 brought by the plaintiff and respondent Monju Rani Das for her maintenance.
The parties to the both belong to the shudra caste of Hindu community. The plaintiff claim maintenance @ Taka 1000/- per month with effect from 1 Aswin, 1396 B.S. from the defendant alleging that the defendant who was in love with her had married her on 6 October 1988, 19 Aswin 1395 B.S.
According to the Hindu shastra at Tarasree Kalimandir in presence of several people. Subsequently on 8 October 1988 the plaintiff and the defendant together swore an affidavit before a Magistrate of first class, Faridpur confirming the marriage. After the plaintiff and defendant had lived as man and wife at the place of service of the defendant they came to the house of the plaintiff’s father.
The defendant demanded TK. 30,000/- as dowry from the plaintiff’s father. As the plaintiff’s father was unable to pay the dowry the defendant left her behind at her father’s place never to take any further news of her or pay any maintenance for her. The defendant subsequently married one Rani Das of the district of Mymensingh.
The defendant resisted the claim pleading that there was no marriage between the plaintiff and the defendant although the plaintiff made pressure to marry him at the house of the plaintiff’s maternal uncle where he lodged as a student. The defendant also disclaimed the affidavit which he said was take. The defendant did not take any plea that the marriage was invalid for want of any shastric ceremony.
The Trial Court disbelieved that there was any marriage between the plaintiff and the defendant and doubted the affidavit. In consequence the trial court dismissed the suit.
The Appellate court discussed the evidence of each of the witnesses and the circumstances refuting the findings of the trial court and reversed the judgment clearly finding that there was due marriage between the plaintiff and the defendant, that the affidavit was genuine and true and that the spouse had lived together as man and wife. Accordingly, the appellate court reversed the decision of dismissal and decreed the suit in part allowing maintenance of the plaintiff @ Taka 500/- per month.
A learned single judge of the high court division summarily rejected the revisional application of the defendant himself the scrutinizing the evidence on record and observing that the appellate court being the final court of fact had appropriately reversed the Judgment of the trial court.
Leave was obtained to consider whether the High Court Division failed to determine what the requisites of a valid Hindu marriage are and whether the essential requisites for a valid marriage were omitted in the instant case rendering the marriage invalid.
There are two ceremonies essential to the validity of a Hindu marriage, namely, (1) invocation before the sacred fire, and (2) saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. There is no evidence in the instant case that these two essential ceremonies were performed and therefore, the marriage even if performed was not completed.
As already noticed the plaintiff specifically claimed that her marriage with the defendant was performed in accordance with the Hindu shastra and the defendant denied the marriage totally. He did not take any plea that any essential ceremonies attending celebration of marriage were omitted making the marriage invalid. The final court of fact, the appellate court and the High Court Division in revision have settled the fact hat there was a marriage ceremony between the parties in the temple of the deity Kali in presence of many persons. Both the courts, however, laid stress upon exchange of garlands between the plaintiff and the defendant in proof of marriage omitting to mention the other ceremonies attending the marriage.
It is obvious that nuptial rites in Hindu shastra are so complicated that an exact observance of their details is not easy and is beyond the comprehension of the ordinary participants or the attendants of the ceremony. But once the ceremony of a marriage in fact is established there shall be a presumption of there being a marriage in law and observance of the essential ceremonies.
In the instant case, there is evidence enough on record to show that the marriage between the parties had taken place and they lived together as married spouse. The witnesses have all borne out that there was marriage in accordance with the Hindu Shastra. The affidavit, which the defendant could not disprove by examining an expert, is also to the same effect. Even the defendant and all his witnesses could not deny that the plaintiff wore vermilion and couch bangles which a married Hindu woman wears in this country. They could not disclose whom else she was married to. Those apart, it is in the evidence of almost all the witnesses that the plaintiff and the defendant lived as husband and wife for about a year. From the circumstances revealed the appellate court and the High Court Division arrived at the correct conclusion that there was in fact a marriage between the plaintiff and the defendant. As marriage in fact has been proved in this case marriage in law must be presumed. In the absence of any evidence to the contrary it is, therefore, amply proved that the plaintiff and the defendant were married according to the Hindu shastra.
RIGHTS OF HINDU WOMEN IN ADOPTION
I.Introduction
A son is required for offering funeral cakes (pinda) and libation of water not only to him but to his ancestors also. A man who is not blessed with a son, may adopt one for the above purpose sometimes it is done out of natural love and affection.
The method of affiliation by adoption was very common in ancient societies, the reason being, that sons were such a necessity in those days. At first it was wholly secular, but gradually the religious element came to be introduced. Now the existence of sons is held to be more conducive to the spiritual purpose of the father than to his material welfare, and therefore adoption has become so much mixed up with religious ceremonies. At present there are only two forms of adoption- a. the dattaka, and b. the kritrima. The dattaka, is prevalent throughout India, whereas the kritrima or the wholly secular one, is found only in Mithila.
It is former recognition of person as the son of another; adopted son is creature of law. He is spoken as secondary, subsidiary or a substituted son. His affiliation is stated to be an imitation of nature. His necessity arose from secular motive. His continuance has been assured by a assumed spiritual benefit, he is supposed to confer upon his adoptive father and his ancestors. It is to be noted that the genius of the Aryan race is such that it is prove to give a religious significance to all secular events. That is why adoption, originally a secular affair, came to acquire a religious significance. Thus, adoption considered necessary to continue the ancestral work ship and confer spiritual benefit upon the departed souls by offering pindas.<href=”#_ftn11″ name=”_ftnref11″ title=””>[11]
II.Nature of women’s right to adoption
According to modern view a woman has got no right to adopt and she acts merely as an agent of her husband. A man can not authorize any other person except his wife to adopt a son for him. A joint power to the widow and other person or persons is invalid. A man having a son may give a conditional authority to his wife to adopt a son in case the son dies without any male issue.
A woman can not adopt to herself, the adoption can only be made to her husband and for his benefit. The theory that a woman can not adopt in the dattaka form except as the agent of her husband and for his benefit has been much controverted by some eminent jurists, who maintain that an adoption by a woman is primarily for her own benefit. The consent of the husband, required by Vasistah’s text, is to be referred to the presumed general incapacity of females independently to enter into any legal transaction, rather than to any special disability regarding the capacity to adopt.<href=”#_ftn12″ name=”_ftnref12″ title=””>[12]
III.Authority to adopt to widow
The authority is to be given to the widow alone.
Joint authority given to widow and another is void.
Authorizing to widow to adopt with consent of specified person, the consent is to be taken before adoption.
From the above it appears that the widow’s right to adopt entirely depends on the power and it must be strictly followed. The power must be exercised subject to the restrictions imposed by the husband. A widow has no larger power to adopt than her husband. A minor widow may adopt, provided, shall has attained the age of discretion. An unchaste widow cannot adopt. A widow cannot adopt a son to her first husband after remarriage. A widow is not legally bound to adopt though enjoyed by her husband to do so. Her right to her husband’s property is not affected by her omission or refusal to adopt. But an agreement by the widow in which she undertakes that she would not exercise her right of adoption is void as against the public policy.<href=”#_ftn13″ name=”_ftnref13″ title=””>[13] “Where a widow is empowered to adopt, inheritance to the property is not suspended for her non exercise of the power to adopt, if not exercised, ordinarily law of succession will follow”.<href=”#_ftn14″ name=”_ftnref14″ title=””>[14]
Adoption case no. 1.
Ram Dasi Pal v. Surabala Dasya & others.<href=”#_ftn15″ name=”_ftnref15″ title=””>[15]
When a widow is empowered to adopt a son, she cannot be compelled to act upon it unless she likes. Consequently vesting of inheritance cannot be suspended until she exercises her right to adoption. Furthermore, this right she may exercise or may not exercise.
In case of adoption by the widow or widow’s mother it will divest them when the properties are already vested in them subject to valid transfer; in other circumstances will an adoption made to one person divest the estate as heir of another persons.
There can be no divesting of the properties already vested in the deities.
Under the terms of the document the adopted son was to inherit shebaitship upon the death of this adoptive mother. Where the adopted son pre decreased the adoptive mother.
It was contended that under Hindu law, more than one life interest cannot be created. Under Hindu law, creation of successive life-estate is valid.
Respondent no. 1 Surabala Dasya instituted a suit out of which the present appeal has arisen for a declaration for her right of shebaitship to the properties described in scheduled of the point with a consequential relief for injunction.
The properties in dispute originally belonged to one Paju Pal. He adopted a son namely Brindaban and gave him in marriage to one Jamini Sundari. The adopted son Brindaban predeceased Paju Pal leaving behind Jamini Sundari and a daughter Surabala who is the plaintiff in the present suit. His death took place on the 20 of May, 1912.
Therefore, on the 14 of July 1912 corresponding to 30 Ashar, 1319 B.S. Paju executed and registered a will which has been marked as Ext. 1 in this case. On the same date he executed an arphannama (Ext.2) dedicating some of his properties to the deities Laxmi Narayan and Gopalji. Shortly after Paju Pal died on the 20 of July 1912. On 8 of July, 1920 corresponding to 30 Ashar, 1327, B.S. Jamini Sundari the widow of Brindaban adopted Brajaraj on the basis of a power delegated to her by her husband Brindaban.
Thereafter, in March/April, 1925 corresponding to chaitra, 1331 B.S. Hara Sundari the widow of Paju Pal died. In May 1943 corresponding to Jaistha, 1350 B.S. the adopted son of Brindaban dies childless leaving behind a widow Ramdasi who is the defendant no. 1 in the present case. In 1955 Ram Dasi the widow of Brajaraj instituted title suit no. 13 of 1945 for her maintenance against Jamini Sundari the widow of Brindaban and mother-in-law of Ram Dasi, but the suit was dismissed with an observation amongst others that Ram Dasi was the owner of the property. In 1950, Ram Dasi the defendant no. 1 instituted title suit no. 14 of 1950 against Jamini and the deities and obtained an ex-parte decree.
Thereafter, Jamini died on 17 of December, 1950 corresponding to 12 pous, 1357 B.S. The plaintiff in the present suit field and application under order 9. rule 13 in title suit no. 14 of 1950 but the same was dismissed. It appears that Ram Dasi, the plaintiff of the title suit no. 14 of 1950 and defendant no. 1 in this suit took delivery through court on 19 of January, 1951. But it has found by the courts below that she could not get possession through the peon’s report was to that effect. It appears that she filed an application after the delivery of 19 of January, 1951 for second execution and delivery alleging inter alia that the decree holder, namely the defendant no. 1 was not put in and could not get possession but her application was dismissed.
Thereafter, on the 2 December 1953, Surabala, the plaintiff of the suit instituted the suit for declaration shebaitship and injunction. The suit was contested by the defendant no. 1 Ram Dasi alleging inter alia that the plaintiff was not the shebait of the properties of the deities but Ram Dasi was the shebait, that the plaintiff’s suit in respect to schedule 1 property which was gifted to her husband Brajaraj by her father-in-law Paju Pal devolves on her on the death of Brajaraj and such the said properties were neither debuttar properties nor the plaintiff had any right in those properties, that he claim that the properties were debuttar were barred by the principle of res judicata in view of the decision in title suit no. 14 of 1950, that the plaintiff was not the shebait of the deities but it was Ram Dasi and that the suit were barred by limitation and bad for defect of parties.
On this present appeal there main questions are involved one is the applicability of the principle of res-judicata and two others in respect of interpretation of the will which has been marked.
Now the question is whether Brajaraj could have inherited shebaitship though Brajaraj predeceased the third executrix. According to the arphannama the right of shebait did and could not have vested in Brajaraj before the death of Jamini as the legacy did not become payable before the death of Jamini. Consequently, the defendant Ram Dasi could not have inherited anything from her husband Brajaraj.
Where the estate of a Hindu has vested in a person who is his nearest heir at the time of his death, it cannot be divested except either by the birth of a preferable heir such as a son or a daughter, who was conceived at the time of his death, or by adoption in certain case of a son to the deceased.
Generally a widow’s power to adopt continues all her life time.
In all cases where her husband has died without leaving any son.
In cases where her husband has left a son if the son dies leaving her as his nearest heir.
In the first ease, the widow succeeds to the estate as her husband’s heir in the second case she succeeds to the estate as the heir of her son. In either case, the estate vests in her, in the one case immediately on the death of her son. By adoption she divests no estate except her own. But vesting or divesting is no longer of importance.
In the case Srivivas Krishaarao Kango v. Narayan Devjit Kango and others,<href=”#_ftn16″ name=”_ftnref16″ title=””>[16] we find the report, which was quoted with approval.
As regards collateral succession opening before adoption, it has been held that an adoption can not relate back to the death of the adoptive father so as to entitle the adopted son to claim the estate of a collateral relation, succession to which opened before his adoption.
From the authorities on Hindu law it appears that when a widow is empowered to adopt a son, she can not be compelled to act upon it unless she likes. Consequently vesting of inheritance can not be suspended until she exercise her right in adoption. It further appears that authorities did not extend the theory of birth by fiction of law to inheritance and divesting of property already vested in another person. From the authorities quoted above, it is clear that the fiction of law on the question of birth or adoption should not be extended equally on the question of devolution and divest of properties and spiritual benefit by continuing the life, as the claim of the adopted son to divest a vested estate rest on a legal fictions be extended.
In the present case after the death of Paju Pal, the properties described in (ka) schedule vested absolutely in the deities as there was no adoption during the life time of the testator, namely, when the succession opened but the adoption was 8 years thereafter. The deities had the right, properties being vested in them to deal with the properties in any way without deterrence of any person outside. Then again the adoption was not to the last male holder, namely, Paju Pal but it was to his predecessor son Brindaban. So in any way according to the authorities cited there can be no divesting of the properties already vested in the deities. Furthermore, by adoption by Jamini in the present case, she was not divesting herself of her property as it did not vest in her. But she was trying to divest the deity, third party, which is against natural justice and furthermore power to adopt not given by Paju Pal to her but it was given by Brindaban, the husband of Jamini who died on the 20 May, 1912 whereas adoption took place in 1920.
For the aforesaid reason, on the death of Paju Pal the property described in schedule I vested in the deities and on adoption by Brajaraj by Jamini’s 81 years after the death of Paju pal did not divest the deities of the properties already vested in it. Similarly shebaitship also vested in Surabala Dasya, the plaintiff.
IV.The rights of widow to make an adoption
This rule occurs in the case law, where a widow whose husband was entitled to as jivai grant which could descent only to his male issue adopted a son to her husband and the adoption was held valid showing here by that the widow’s right to adopt is not dependent on her inheriting her husband’s estate as a female heir.<href=”#_ftn17″ name=”_ftnref17″ title=””>[17] The said principle is not to be found in the case of law, where a widow whose husband held an impartible zamindariny which could descent only to his male issue adopts a son it his pursuant to an express authority from. Again in case law, a widow whose husband was joint at his death adopts a son to her husband in each of these cases, the adoption was held valid, though the estate was not vested in the widow, at the time of adoption.<href=”#_ftn18″ name=”_ftnref18″ title=””>[18]
V.Divesting of estate on adoption
The question of divesting on adoption arises only when a Hindu dies without a male issue and authorizes his widow to adopt or when he dies leaving behind a son and authorizes his widow to adopt in the event of death of that son without a male issue. As soon as a Hindu dies, his estate must vest either in his widow or any nearest heir. Hence, arises the question of divesting on subsequent adoption. The ordinary principles of Hindu law being that an estate once vested cannot be divested by reason of any subsequent disqualification of the heir, or by reason of nearer heir coming into existence after wards, divesting by adoption is an exceptional rule and is entirely based on judicial decisions which do not seem quite consistent.<href=”#_ftn19″ name=”_ftnref19″ title=””>[19]
The adopting widow becomes divested by adoption which in an act of her own choice. If there are more widows and one of them adopts a son in exercise of the power granted by the husband all the widows become divested. When on the existing son’s death the estate vested in his widow or in another heir, it was held that his mother in the former case and his step mother in the latter could not adopt and cause the estate to be divested.<href=”#_ftn20″ name=”_ftnref20″ title=””>[20]
Adoption of a son to her husband by a Hindu widow under the Dayabhaga School of law, relates back to the time of her husband’s death. But the adopted son is not entitled to inherit the property of collateral which vested to the other collaterals before the date of adoption.
On an adoption made to a coparcener in an undivided family, the adopted son takes the place of a legitimate son and he divests the estate of any one, who in his absence takes his father’s interest.
Adoption Case No. 2.
Joy Kumar Dutta and others v. Sitanath Dutta, adopted son of Late Jyotish Chandra Dutta.<href=”#_ftn21″ name=”_ftnref21″ title=””>[21]
Under the dayabhaga system if two or more sons succeeding to ancestral properties live jointly and acquire properties in the name of any member of the family, the presumption will be that all the properties acquired during the estate of jointness are joint family properties, but such a presumption is rebutable and may be displaced by the person alleging the property to be his self acquired properly.
The rule of construction generally is that a will must be read as what to ascertain therefrom the intention of the testator and having so ascertained, that intention must be given effect to so far as legally possible.
Chhatranarayan’s properties were inherited by his sons Trahiram and Debidas in equal shares. Debidas’s 8 as. share was inherited by Golak. Trahiram executed a will in 1882 by which he bequeathed his 8 as. share to the four sons of his nephew Golak as follows.
Jagat 6 as., Rajchandra 4 as., Jyotish 3 as., Satish 3 as. It was also provided in the will that if any of these four grandsons children, his share would devolve upon the other grandsons.
Now the plaintiff’s case is that Golak died intestate leaving four sons Jagat, Rajchandra, Jyotish and Satish who formed a joint family under dayabhaga school of Hindu law. Jagat being the eldest acted as the karta of he family. Jagat died leaving his sons Kali Mohan defendant no. 1, Daksina Ranjan, defendant no. 4, Monmohan and Sasanka and his heirs. On Monmohan’s death, his sons Narendra defendant no. 3 and Amarendra, defendant no. 4 inherited his shares. Sasanka died childless. On Jagat’s death, Rajchandra became the karta of the family. In 1926 Rajchandra died leaving his sons Manindra defendant no. 5, Fanindra, Dhirendra defendant no. 6, and Sudhindra, defendant no. 7 as his hairs. Fanindra died leaving a widow Manibala, defendant no. 8. On Rajchandra’s death, Kali Mohan managed the joint family as Karta.
On the 12 December 1906 Jyotish died childless survived by his widow Jogmaya Dassi. Two days before his death, he executed a will giving his widow Jogmaya power to adopt three sons in succession with the limitation that her choice must fall upon the sons of his brothers, Jagat, Rajchandra and Satish. On the 25 February 1937, Sitanath the youngest son of Jyotish was taken in adoption by Jogmaya Dassi. Sitanath as adopted son of Jyotish is asking for declaration of title to one fourth share of the suit properties and for joint possession. He also asked for the declaration that the documents and khatians which were prepared by the defendants in collusion with one another may be declared void and inoperative.
Thirteen written statements were filed. They all challenged the validity of the adoption. In this appeal, however we are concerned only with defendants’ appellants’ nos. 1 ka, 1 kha, 2, 4, 12, 13 and 16. Defendant no. 1 having died, his heirs 1 ka and 1 kha have been substituted in his place.
Defendants nos. 1, 2 and 4 filed a joint written statement challenging the validity of the adoption. They contended that on Jyotish’s death, the properties which he had got under Trahiram’s will passed to his brothers and as such plaintiff had no title to the said properties. It was further contended that Golak left a will in 1888 by which he gave 6 as. to Jagat, 3 as. 6 ps. to Rajchandra, 3 as. 3 ps. to Satish and Jyotish each. So, according to them, the plaintiff’s share can not be more than one anna and 7.5 pies. It was also contended that all the properties mentioned in the schedule were not joint properties and that Jagat who was a sheristadar of the judge’s court at Chittagong had acquired some of those properties with his own money and possessed them separately. According to them, there was separation of the joint family in 1910 for the purpose of better management, they held some of the properties jointly which were ultimately partitioned in 1918. They also took the plea of limitation and adverse possession.
Defendant no. 12, Sukhoda, wife of defendant no. 1 Kali Mohan, defendant no. 13 Promila Bala Dutta and defendant no. 16 Amir Hossain filed separate written statements claiming certain properties as bonafide purchasers for value.
The learned subordinate judge held that the adoption of the plaintiff was invalid in law and hence he dismissed without dealing with the other issues.
On appeal, the High Court held that the adoption of the plaintiff was valid in law and remanded the ease for decision on other material issues.
Now the privy council has frequently pointed out that adoption of a son by widow to her deceased husband deemed to relate back to the husband’s death.
The next and most important question for consideration is whether the plaintiff is entitled to inherit the property which his adoptive father got under Trahiram’s will. The adoptive father got a life interest in as. 1-6 of Trahiram’s 8 as. and on his death, the said as. 1-6 vested in his brothers, Jagat, Rajchandra and Satish and hence the plaintiff by his subsequent adoption could not succeed and divest them of the shares which had already vested in them. Jyotish has got an absolute interest is as 1-6 pies under Trahiram’s will and hence the plaintiff is entitled to inherit the said share also.
Next take up the question whether the plaintiff is entitled to get any share in the property of Trahiram which has vested in the brothers of Jyotish on Jyotish’s death. Jyotish died in 1906. The properties that Jyotish got under Trahiram’s will vested in his brothers. In 1937 Jyotish’s widow adopted the plaintiff. No doubt if the plaintiff was alive at the time of Jyotish’s death, he should have inherited as. 1-6 in which his adoptive father Jyotish got a life estate under Trahiram’s will. But it should be determine in this case whether he having not been adopted before Jyotish’s death, his subsequent adoption after 30 years of the death of Jyotish would confer upon him any right to claim the said share from the persons in whom it had vested under Trahiram’s will.
The plaintiff cannot succeed in this case unless he can establish that on his adoption, the ownership of the said property was divested from the persons who had succeeded to them upon the death of Jyotish and vested in himself.
There is no limitation of time within which a Hindu widow is bound to exercise the right of adoption, and there might be cases not of infrequent occurrence in which person rightfully succeeding to properties as heirs might, after a long lapse of time be suddenly called upon to relinquish their possession in favor of a person adopted into the family of the last owner many years after the death of the later.
The case of a widow adopting a son after her husband’s death, and thereby divesting the estate which she took upon the death of her husband without issue, is one in which only her own estate is divested. There is no case in which an estate vested in a male heir by inheritance can be divested by the adoption of a son by a widow after her husband’s death, and the case of a widow divesting her own estate by the adoption of a son is not one from which inferences can be drown by analogy as to divesting of an estate once vested in a male heir by inheritance.
Sir Barnes Peacock delivered the judgment in the case of Bhubaneswari Debi v. Nilkomul Lahiri, as follows.
“The widow never could, by adoption, if there have been no fraud, have made the present plaintiff a reversionary heir of half the estate of Ram Mohan, because he was not in existence of the time of Chandmoni’s death. According to the law as laid down in the decided cases an adoption after the death of a collateral does not entitle the adopted son to come in as heir of the collateral.”<href=”#_ftn22″ name=”_ftnref22″ title=””>[22]
Therefore considering the question about the plaintiff’s claim to the property of his adoptive father which was bequeathed to him by the will of Trahiram from the point of view of the texts of Hindu law as prevalent in Bengal and the decided cases. The plaintiff cannot succeed and therefore the decision of trial court in plaintiff’s favor as regards that share must be set aside. The result, therefore, is that the plaintiff is entitled to only two annas share.
VI.Rights of adopted son
Where a son is born to the adoptive father after the adoption.
Where he has been adopted by a disqualified heir.
Adoption once made cannot be cancelled by a subsequent deed and the status of the adoptive son as such cannot be altered. <href=”#_ftn23″ name=”_ftnref23″ title=””>[23]
Barren married daughter by adoption with consent of her husband can stop the inheritance of her father’s estate to pass to reversioners.
Adoption case no. 3.
Abdul Gani Khan v. Tamejuddin Howlader and others.<href=”#_ftn24″ name=”_ftnref24″ title=””>[24]
An adopted son to a barren married daughter under a dayabhaga Hindu law would have the same position as that of a legitimate son or like any of the first six grades of sons as enumerated in the Hindu texts and he would succeed to the estate of adoptive maternal grandfather’s properties. In an appropriate case a barren married daughter of a Hindu governed by the dayabhaga school can stop inheritance of her father’s property to go to her father’s reversionary heir by creating a son by adoption with the consent of her husband. The text of Hindu law bears it not that under the Bengal school all daughters cannot succeed to the property of their fathers but some of them may and can; and it enumerates that the first to inherit is the unmarried daughter and then a married daughter having a male child and she excludes a married daughter and having daughters only and also married but barren daughters and married widowed daughters.
It appears from record that by a kabala dated the 6 May 1930. Basanta son of Kashinath purported to sell 2 annas share inherited from his father and 2 annas share of Rashmoni, acquired by him as a reversionary heir of Jagat, in all 4 annas share of the tenure to the defendant no. 2 Abdul Gani. It further appears that by another kabala dated the 9 October 1939, defendant no. 2 Abdul Gani in the benami of Nagen Biswas purported to purchase the remaining 12 annas share of the said tenure from defendant no. 4 Alok, defendant no. 5 Mahadeb, Srinath and Sibehandra though their shares amounted to only 9 as. 6 gs. 2 ks, 2 krantis share.
The plaintiff in his plaint after setting out the shares of the defendant tenure holders as appear from the record of rights alleges that one Khosal Chakravorty was mortgage of the 4 annas share of Srinath and Kasinath and for realization of the mortgage dues Khosal instituted mortgage suit no. 33 of 1939 against Srinath, Basanta son of Kasinath and defendant no. 2 Abdul Gani, and obtaining a decree in that suit put that decree in execution in title execution case no. 605 of 1934 and purchased the mortgaged properties on the 24 April, 1935 and after confirmation of the sale on the 12 June 1935 took delivery of possession through court on the 14 March 1936; and thereafter Khosal Chakravorty sold his purchased interest in the tenure to the extent of 4 annas to the plaintiff by a kabala on the 31 May 1941.
It is further alleged by the plaintiff that by kabala dated the 23 December 1940, he purchased two annas share of Rashmoni and 1 as. 6 gs. 2 ks. share each of Aswini and Anath Haldar. Thus the plaintiff claims title to and possession in his purcha