THE HINDU WIDOWS’ REMARRIAGE ACT (1856)

The widows are severely lacking from the statistics of many developing countries, and they are infrequently mentioned in the collection of documents and reports on women’s poverty, development, health or human rights published in the last twenty-five years. Increasing evidence of their susceptibility, both socio-economic and psychological, in the present existence, challenges many conventional views and assumptions about this group of women. In many developing countries, the exact numbers of widows, their ages and other social and economic aspects of their lives are unknown. Almost international, widows comprise a significant proportion of all women, ranging from seven percent to 16 percent of all adult women. However, in some countries and regions, the proportion is too large. In developed countries, widowhood is experienced primarily by elderly women, while in developing countries, it also affects younger women, many of whom are still rearing children. In some regions, girls become widows before reaching adulthood (Women 2000, 2001).

Although social rules differ on a massive scale, all cultures and traditions have rules which govern the lives of the widows. Across a wide range of cultures, widows are subject to patriarchal customary and religious laws and confront discrimination in inheritance rights. Many of these widows experience abuse and exploitation at the hands of the family members, often in the perspective of property disputes. Few cases proceed successfully through the justice system, perpetrators do not suffer from any kind of punishment, while others remain undeterred and undetected. Even in countries where legal protection is more inclusive, widows suffer from the loss of social status and marginalization. Mistreated by the social policy researchers, international human rights activists and the women’s movement, and consequently by the governments and the international community. The legal, social, cultural and economic status of the world’s widows now requires serious consideration of all levels of society, given the extent and rigorousness of the discriminatory treatment they experience (Women 2000, 2001).

THE HINDU WIDOWS’ REMARRIAGE ACT (1856)

It is known that by the law as administered in the civil courts, Hindu widows with certain exceptions are held to be by reason of their having been once married, ineffectual of contracting a second valid marriage, and the offspring of such widows by any second marriage are held to be unlawful and incompetent of inheriting property. Whereas many Hindus believe that this imputed legal incapacity, although is in accordance with the established custom, is not in accordance with a true interpretation of the precepts of their religion, and aspire that the civil law administered by the Courts of Justice shall no longer avoid those Hindus who may be so minded from implementing a different practice, in accordance with the dictates of their own integrity; and whereas it is just to relieve all such Hindus from this legal incapacity of which they criticize, and the removal of all legal hindrances to the marriage of Hindu widows will tend to the advancement of good standards and to the public welfare (THE HINDU WIDOWS’ REMARRIAGE ACT (1856).

It is sanctioned as follows: (THE HINDU WIDOWS’ REMARRIAGE ACT (1856).

1. No marriage contract between the Hindus shall be declared illegal, and the issue of no such marriage shall be considered to be unlawful, by reason of the woman having been previously married or engaged to another person who was not alive at the time of such marriage. Any custom or ceremony and any interpretation of Hindu law to the conflicting situation nevertheless.
2. All rights and interests which any widow may have in her deceased husband’s property by way of maintenance, or by inheritance to her husband or to his lineal successors, or by feature of any will or testamentary disposition conferring upon her, without expressing permission to remarry. Only an incomplete interest in such property, with no authority of alienating the same, shall upon her remarriage conclude and control as if she had then died; and the next heirs of her deceased husband, or other persons entitled to the property on her death shall there upon succeed to the same.
3. On the remarriage of a Hindu widow, if neither the widow nor any other person has been constituted by the will or testamentary disposition of the deceased husband, the guardian of his children, the father or paternal grandfather, or the mother or paternal grandmother, of the deceased husband, or any male relative of the deceased husband, may petition the highest court having original jurisdiction in civil cases in the place where the deceased husband was domiciled at the time of his death for the appointment of some suitable person to be the guardian of the said children. There upon it shall be lawful for the said court, if it shall think fit, to appoint such guardian, who when appointed shall be authorised to have the care and custody of the children, or of any of them, during their minority in the place of their mother; and in making such appointment, the court shall housing, land and property laws in force 53 be guided, so far as may be, by the laws and rules in force moving the guardianship of children who have neither of the parents.

Provided that, when the said children do not have any property of their own, sufficient for their support and appropriate education whilst minors, no such selection shall be made otherwise than with the agreement of the mother unless the proposed guardian shall have given security for the support and proper education of the children that are below 18 years of age.

4. Nothing in this Act controlled shall be interpreted to render any widow who, at the time of the death of any person leaving any property, is a childless widow, capable of inheriting the whole or any share of such property. If before the passing of this Act, she would have been incompetent of inheriting the same by reason of her being a widow with no children.
5. As it has been stated in the three preceding sections, a widow shall not, by any of the reasons of her remarriage, forfeit any of the property or rights to which she would otherwise be authorized. Every widow who has remarried shall have the same rights of inheritance as she would have had, if such marriage would have been her first marriage.
6. Whatever words are articulated, or ceremonies are performed or engagements are made on the marriage of a Hindu female who has not been previously married are adequate to establish a legal marriage shall have the same effect if articulated, performed or made on the marriage of a Hindu widow; and no marriage shall be declared invalid on the ground that such words, ceremonies or engagements are irrelevant in the case of a widow.
7. If the widow who is remarrying is a minor, whose marriage has not been consummated, she shall not remarry without the consent of her father, or if she does not have a father, nor a paternal grandfather, or if she does not have any of these grandfathers, then her mother, or, even if the mother is not present, then her elder brother, or if she does not have elder brothers, then her next male relative.

Significance of the Act

The Act of 1856 is an Act removing all the impediments which may take place within the course of widow remarriage. It was enacted, the reason being, as the first paragraph to the Preamble to the Act stated in 1856, the Hindu Widows, with certain exclusions, were by reason of their having married earlier, were held to be incapable of contracting a second valid marriage and the children of such widows by any second marriage were held to be incapable and unlawful of inheriting the property. The Act removed any kinds of disorders under which the widows within the Hindu community have been undergoing suffering and permitted them to remarry. No marriage contract between the Hindus shall be declared as invalid and no issue of such marriage shall be considered as unlawful (Law Commission of India, 1979).

The remarriage of the widow is considered to be legal and secures the legality of the children. But in view of the Section 5(i) of the Hindu Marriage Act, 1955, which states that a marriage may be solemnised between any of the two Hindus, if neither party has a spouse living at the time of marriage. Clause (i) of Section 5 permits a widow to remarry. Under this clause, all that is necessary is woman intending to marry or remarry must not have a spouse living at the time of marriage (Law Commission of India, 1979). The institution of marriage has been of interest to sociologists and anthropologists in common. From the viewpoint of biological anthropology, marriages are of prominence because they are regularly the settings by which genetic factors are exchanged within and amongst the populations. Thus, they permit to scrutinize the levels of genetic differentiation, population structure, inbreeding, migration patterns, selection of the companion, parental fitness, investment in offspring, and so forth (Madrigal, Ware, & Melendez, 2003).

Profile of Widowhood

            Widows in India experience numerous kinds of social beliefs that are often contradictory in nature. Their status is defined by a multifaceted and different multitude of religion based individual codes, regions, caste, kin based customs, and government laws. The situation of widows in different groups, educational areas and classes vary on a comprehensive scale. Widows in India investigates fundamental questions of aging, morbidity and mortality, social security, poverty, employment and public advocacy, taking into consideration the representational and matter consequences of widowhood (Chen, 1998). The conditions of widows in India are miserable, they do not take pleasure in carrying out the activities, which are required for their daily existence. They experience problems in carrying out the household chores, maintaining the entire housework, bringing up their children, taking care of the other family members and forming connections and communication terms with the other people around. They experience problems and are hesitant to participate in functions and ceremonies.

            Widows across the globe have two common experiences; first is a loss of social position and deprived economic conditions. Even in the developed countries, the older generation of widows, who are above 60 years of age, may experience a striking but a restrained modification in their social position. The financial condition of the widows is normally sustained through pensions and this proves to be an enduring cause of grievance, the reason being, that the rate of pension often does not keep up with variations in the ever-changing cost of living indices, or with prospects that the older generation may have had of what life would be like in retirement (Women 2000, 2001). Another important area that needs to be stated is, widows in rural areas are normally mistreated and their status is undermined, they are not given any condition of recognition and remain confined within the households. In the present existence, there have been implementation of opportunities and measures that would contribute in enhancing their status.

Social Position of Widowhood among Women in Rural and Urban Areas

            Within Indian societies, women prolong to struggle for gender equality and rights and opportunities. Primarily, widows in India are experiencing large amount of predicaments and hardships in the family and the community due to the prevalence of traditional customs, cultural practices and principles in the society. In the patriarchal Hindu society in which women obtain their status from their husbands, widows have always been considered as characters of hard luck, and their presence was thought to be unfavourable at auspicious occasions. They were compelled to leave completely from the social life of the society and were prepared to follow a demanding discipline which made their existence a practical social difficulty. Attempts were initiated during the early colonial period to work toward the reorganizations to progress the condition of widows in India. Yet, obvious gender discrimination exists in India over the centuries. Women, particularly widows in India are the victims of social stigma (Anji & Velumani, 2013).

Discrimination of widows is a worldwide experience which is intrinsic in the long-established standards and beliefs of the society. Widows are found to have large quantity of dilemmas on a comprehensive scale, due to the doctrine of patriarchy and social degradation. Amongst the widows, the most susceptible groups are those who have been living alone or staying with unmarried children. Some of the major problems they experience are; responsibility of child bearing, lack of company, isolation, violent behaviour against widows, impediments in remarriage, control over sexuality, discrimination, and psycho-social modification with her own family and the society. In all the developing countries, millions of widows and their children reside within the conditions of severe apprehension, withdrawal and antagonism. Even though there have been establishment of civil laws of heritage, expected laws relating to marriage and heritage, land ownership and child custody; there exists is a wide difference between the authorized procedures and performances due to the unyielding patriarchal approach towards women (Anji & Velumani, 2013).

In India, irrespective of religious backgrounds, norms, ethnicity, creed, race, caste, class and education, millions of widows are evicted of their commonly recognized human rights. They are prohibited from essential needs like food, clothing and shelter. A few women even experience sexual harassment from their in-laws. The needs and requirements of the widows are marginalized in the Indian society and they are not taken into majority. Even in an educated civilized society, they are secluded and positioned under restraints. Widowhood is maintained on the women to keep them within their homes; they are not permitted to be present at any social and religious functions and in this manner, their rights are restricted within the public sphere. Gender hierarchy is deep rooted within the Indian culture. As compared to the widowers, widows have much more restrictions within the society. Widowers have the independence to move anywhere they want as well as to participate in social gatherings. Due to patriarchy, women are regarded as a secondary object and this gender hierarchy is examined in the family as well as in the society (Anji & Velumani, 2013).

Widows are categorized even by their family members and they are constrained physically and communally. They are not allowed to wear coloured clothing, or jewellery; on the other hand, they are required to wear unappealing attire, ornaments, hair style, etc. These kinds of restrictions were firm in the community. Any kinds of restrictions imposed upon them which may prove to be impediments within the course of their remarriage is a violation of human right. Even though the Indian Constitution guarantees equality to all, discrimination against widows is still prevalent, and widowhood is overwhelmingly a woman’s difficult condition. In India, there are three times as many widows as compared to widowers. Child-marriage, polygamy, the wide age difference between men and women, war and growing rate of AIDS have led to an increase in the number of widows, especially those who are young in age (Anji & Velumani, 2013).

Reflections and Realism of Widowhood

There has been highlighting of five main areas that focus upon the reflections and realism of widowhood: (Chen, 2008).

1. Patrilocality – Patrilocality in the contracted logic refers to the norm, common in most Hindu communities of India, according to which a woman has to leave the house of her parents at the time of marriage to move in with her husband in his home. In a comprehensive sense, especially in north India where marriage rules state marriage outside the village, patrilocality can also be understood to refer to the severe estrangement from her parental family understood by a married woman after her relocation to her husband’s family. The system of patrilocal residence also contributes a central role in the withdrawal of widows from the society; 75% of the widows remain at their husband’s village at the time of his death and they are not likely to receive any support from their in-laws.
2. Patrilineal Inheritance – In rural India, even in the present world, most community groups follow habitual norms and customs rather than current statutory law. With regards to property, there is a predominant custom of joint patrilineal possession under which widows are entitled to use rights if they do not have adult sons or maintenance rights if they have adult sons over their husband’s share of ancestral land.
3. Restrictions on Employment – Besides the prevalence of common restraints on the employment opportunities of the individuals, relating inter alia to the gender division of labor, widows experience specific problems and difficulties. For a variety of grounds, widows are often occupied in the kind of work that would be less protected and less advantageous as compared to the work of the women who are married. For example, widows are more likely to work as wage workers whereas married women are more likely to work as honorary workers within their family or independent self-employed workers. Widows are normally employed in the informal sector, where they perform the job duties of taking care of the children and the elderly individuals.
4. Social Neglect – Widows are socially neglected, they are not allowed to be part of or contribute in case of organization of any events, ceremonies or pleasurable occasions. They are looked down upon by the community members and are discouraged, they normally keep to themselves and if they have unmarried children, they tend to look after and communicate with their children. They are not even well supported by their in-laws. This is one of the severe problems that have been experienced by the widows in India. This proves to be the major hindrance within the course of their development. The prevalence of social neglect against the widows within the community is based upon the beliefs and viewpoints of the individuals.
5. Social Isolation – The security and welfare of widows is not just a question of economic protection, but also one of self-respect, self-confidence and participation in the society. In majority of the cases, widows experience various forms of social isolation, emotional abuse or severe distressing situations that are connected to the apparent intimidations of the social order and of ancestral possessions. The social marginalization of the widows normally takes one or more of the following forms, conversations and allegations, restrictive codes of attire, diet and behavior, social exclusion from the religious and social life of the community, frustration, physical annoyance and even antagonism.

Problems Faced by Widows

Within the society, there are number of problems that have been experienced by widows and they prove to be impediments within the course of their development. These have been stated as follows: (The Challenges Faced by Widows, n.d.).

1. Widows in Conflict Situations – In rural and in urban areas, there have been some cases of conflicts and disputes concerning widows. The main reason for the occurrence of conflicts and disputes is widows are considered to be a burden upon the family as well as the society. Conflicts impose a detrimental effect upon the status of women and widows in particular. In acquiring any kind of employment opportunity, getting their children admitted in a school, inheriting property, all serve to be problems for widows and do give rise to conflicting situations. The rising of the conflicts and disputes within the society prove to be major obstacles which even consider widows as inauspicious. In most cases, they are deprived of rights and opportunities, they remain confined within their houses and are not allowed to participate within the decision making processes. In other words, they do not have any say.
2. Disregarding the Rights of the Widows – The rights of the widows are disregarded. The rights to equality before the law and to equal protection, right to equality with respect to marriage, right to own property and right to an adequate standard of living, including the right to proper housing. In some instances, widows are not allowed to communicate with their children. The male children, are trained and educated by the other members of the household and they mostly get engaged in the performance of job duties. The deprivation of rights, make their living conditions miserable.
3. Dowries, Bride Price and Dependencies – The widows in India get deeply affected by dowry, bride price and dependencies. These are considered to be major problems for the widows and due to these, they experience hardships, struggles and predicaments. When remarriage of a widow is to take place, there is a demand of a dowry, bride price and a dependency. These prove to be major obstacles within their marriage. Due to these, widows, as well as their family members express unwillingness and marriage does not take place for the widows.
4. Inheritance Rights – Widows experience problems with regards to inheriting the land or the property belonging to her deceased husband. They are not considered to be worthy, hence land, property, wealth, all these are not given to the widows and hence they are deprived of inheritance rights. In their parent’s house as well, the male siblings are given the inheritance rights. Therefore, when they do not have right to property or land, they feel largely discriminated against. The deprivation of inheritance rights amongst the widows have enabled them to struggle hard to earn a living.
5. Poverty – The problem of poverty has been severe amongst the widows. Widows make up a sizeable proportion of the people that are poverty stricken. They are financially not sound and are dependent for their living on others, such as organizations or NGOs. Good health, food, preference, achievement, livelihood are the features that are essential for an enhanced living and widows are deprived of these, hence it is stated that they are living in the conditions of poverty. The conditions of poverty and backwardness prove to be major impediments within the course of their acquisition of a sustainable living.
6. Lack of Education and Training – The widows in most cases are found to be uneducated and they lack the training which is considered vital for the implementation of day to day activities. They are discouraged from acquiring any kind of education and training, this is common primarily in rural areas. In most cases, they even lack the basic literacy skills of reading, writing and arithmetic. Without literacy, education and training, widows can support neither themselves nor their families. Widows in post-conflict situations are to a great extent in need of properly formulated and adequately located educational and training programs, enabling them to perform the role of the breadwinner for the family. The destitute conditions of the widows within the community, even force them to withdraw their children from the schools at an early age, even before, their educational skills are honed.
7. Ill Health – The problems that widows experience within the community such as social deprivation, isolation, poverty, lack of education and training, deprivation of the inheritance rights, these problems provide stress, depression and effects the health of a person to a great extent, hence ill health is also a problem that widows experience. The ill health conditions of the widows and their families arise from a number of factors, they are not able to meet the diet and nutrition requirements of their children and themselves. In case of any illnesses or health problems, they do not have funds to seek medical assistance or consult a physician. Primarily lack of knowledge and awareness contribute towards the ill health conditions.
8. Violence and Exclusion from the Economy – Widows are vulnerable to violence and suffer exclusion from the economy. They have lost their status, protection, sometimes get evicted from their homes or have their children taken away from them. They are not allowed to acquire proper educational qualifications or get involved in a reputed employment setting. They encounter barriers and obstacles with regards to ownership of property. Due to lack of education and training, they are not able to acquire good job opportunities and experience rejections. The widows in most cases are employed in the informal sector, they are unpaid and their primary job duties comprise of taking care of small children and the elderly individuals.

Remarriage Practices

In the present existence, two stereotypes continue about widow remarriage in India.

The first is, widow remarriage is prohibited within the Hindu society. The second is widow remarriage is extensively practised. Realism lies somewhere between these two viewpoints. Only the upper castes forbid remarriage; most other castes, except those emulating the upper castes allow widow remarriage; some castes in certain regions practice leviratic unions i.e. remarriage to the deceased husband’s brother; but actual remarriage, outside of levirate, only takes place in special circumstances. The simple pattern in most communities is that most childless widows remarry, while most of the widowed mothers do not remarry. In the Chen sample of 562 ever-widowed women, 13 percent in north India had remarried, compared with only six percent in south India. These figures are consistent with the findings of the previous research studies (Chen, & Dreze, 1995).

The lower probability of remarriage in the south is due in part to the practice of levirate in the north. The only villages of the Chen study where levirate was extensively implemented was positioned in the Garhwal hills of Uttar Pradesh. In the Chen sample of 52 remarried widows, of which 35 lost their second husband also, 24 were from scheduled castes, 22 from backward castes, and only six were from upper castes. All six were Rajputs or Brahmins from the Garhwal hills who performed both levirate and widow remarriage in general. Amongst the widows covered in the Chen sample, as well as amongst those who participated in the workshop that was carried out in Bangalore, most of them stated that they did not desire to remarry. Collective reasons given for not wanting to remarry included, unwillingness of want for more children, fear that a second husband will not take good care of the children fathered by the first husband, and wish to retain claim on the deceased husband’s land, having in mind that widows lose this claim on remarriage (Chen, & Dreze, 1995).

Widows generally show less interest in remarrying. This viewpoint is required to get interpreted keeping in mind not only the effect of the undesirable social attitudes towards widow remarriage, but also the lesser opportunity of conjugal happiness in the second marriage. Indeed given the predominant social attitudes, a man who approves to marrying a widow, habitually has largely unattractive characteristics, for instance, he may be too old, or physically challenged, or economically disadvantaged, or looking for a second wife. The issue of widow remarriage in India is not just a question of the incidence of remarriage, but also of the worth of second marriages, and of the independence that widows have to remarry in positive circumstances (Chen, & Dreze, 1995).

A number of social reformers tried to address the problems that widows experience. Rammohan Roy initiated a movement for Widow Remarriage in the 1820s, as did Derozio and the Young Bengal in the 1830s. The Indian Law Commission (1837) considered the issue on a serious basis and came up with the conclusion that infanticide could be curbed only if widow remarriage was declared lawful. The government concluded, even though such a law was socially largely required, passing it would involve going against Hindu structures and laws of inheritance, Dayabhaag and hence infeasible. There were distributed endeavours to make widow remarriage lawful in the 1840s as well. Ishwar Chandra Vidyasagar took up the issue of widow remarriage during the 1850s. Despite of much opposition, the Widow Remarriage Act was passed on 26^th July, 1856, permitted widow remarriage to be organized in the same way as the first marriage was performed (Dasgupta, & Mukherjee, n.d.).

Reasons for Unwillingness amongst the Widows regarding Remarriage

There have been many reasons that lead to unwillingness amongst the widows towards remarriage and these have been stated as follows:

Fear of being Mistreated – The widows normally fear that they would not be treated with respect and courtesy by their in-laws if they remarry. They fear that restrictions would be imposed upon them and they will lose their independence. As they have been married before, they develop vulnerability and the feeling of apprehension amongst themselves. Due to these feelings, they develop hesitance and unwillingness towards remarrying. In some cases, it is common that when a widow remarries, she is not able to live a happy life and experiences detrimental consequences.

Children will not be adequately taken care of – The primary aim of the widows is to carry out productive and efficient growth and well-being of their children. The widows who have children normally develop this viewpoint that their children will not be adequately taken care of and their needs and requirements will not be met. They fear that upon their remarriage, their child or children will experience neglect and they will be mistreated as their husbands and in-laws will not take proper care of the children who have been previously fathered by the first husband. The widows, upon losing their husbands, develop more care and concern for their children, whether they have been educated or not, but they would like to get their children well educated and become achievement oriented.

Employment Opportunities – In the present existence, in urban areas, women who lose their husbands at an early age, may or may not have children. They put main emphasis upon their career. They would like to obtain high education and get engaged in employment opportunities to earn a living for themselves and their families. They develop this notion that having a job would help them in acquiring self-sufficiency and they will be able to adequately meet all the needs and requirements. Staying occupied with a full time employment opportunity, would help the widows to overcome all their problems and anxiety.

Unsuitable Characteristics of the Man – The men who normally possess positive characteristics, such as good education, appropriate employment opportunities and so forth normally desire for an unmarried woman. They usually do not express willingness to marry a widow. On the other hand, men who agree to marrying a widow, may possess unsuitable characteristics, such as age difference between a man and a woman may be large, men may be physically challenged, they may not possess an amiable and an approachable nature, they may be economically disadvantaged and so forth. These characteristics arouse unwillingness on the part of widows regarding remarriage.

Restraints on having a good Career – Women and widows in the present existence have recognized the significance of education and employment opportunities. Majority of women would like to obtain educational qualifications and a good job. Widow Remarriage in some cases prove to be impediments within the course of acquiring education or getting engaged in employment opportunities. When widows get married, they are bound towards meeting all the needs and requirements of the family members as well as the households. These obligations discourage them towards acquiring education or obtaining any kinds of jobs. Due to these factors, widows normally express hesitance towards remarriage.

Conclusion

Widows in India express concern and willingness to earn a good living and become achievement oriented. Research has indicated that widows express the circumstances that have resulted from their widowhood. They do experience problems, which can be alleviated by either obtaining employment opportunities, by getting engaged in farming and agricultural practices which are common in rural areas, by providing education and training for the children, by struggling against the property rights, by establishing an independent household, taking care of the family members and the household requirements and acquiring membership of the local women’s organizations. Acquiring memberships of various organizations generate awareness amongst them and they are able to create a social circle.

The rate of the remarriage of widows has been low, there are number of reasons due to which women do not express their willingness to remarry. It is vital to initiate measures that would lead to the well-being of the widows within the country. There is a requirement to generate more prospects and opportunities for the widows to come out of their homes, establish something for themselves, generate opportunities that would lead to their empowerment and restructure their appearance as women with self-esteem and privileges. There is a need to generate more opportunities for the society as a whole, as well as policy-makers, to listen to the concerns and issues of the widows and their demands.