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Allahabad High Court
Kaunsilla vs Gajadhar And Anr. on 22 December, 1908
Equivalent citations: (1909) ILR 31 All 161
Author: Banerji
Bench: J Stanley, Kt., Banerji


Banerji, J.

1. The question in this appeal is whether a Hindu widow, who according to the custom of her caste is allowed to re-marry, forfeits upon remarriage her right to the maintenance decreed to her against the estate of her first husband.

2. The plaintiff, Musammat Kaunsilla, belongs to the caste of Halwais or confectioners. She was first married to one Sahtu and in 1881 brought a suit against him and transferees from him for her maintenance. On the 6th of September 1881 a decree was passed in her favour fixing Rs. 5 a month as her maintenance, which was declared to be a charge on the estate of her husband in the possession of certain donees from him. The husband died subsequently, but the transferees of the property continued to pay her the maintenance decreed to her. In 1905 she married a second time and thereupon the defendants who are in possession of the property refused to pay the maintenance. She accordingly brought the present suit for recovery of arrears of maintenance by sale of her first husband’s property now in the hands of the defendants. It has been found that according to the custom of the caste to which she belongs remarriage is permissible and is valid. The defendants contended that by marrying a second time she forfeited her right to maintenance. The court of first instance decreed her claim in part. The lower appellate court set aside that decree and dismissed her suit. Upon second appeal to this Court the learned Judge who heard it reversed the decree of the lower appellate court and restored that of the court of first instance. From his judgment this appeal has been preferred under the Letters Patent. It is urged on behalf of the appellants that Act No. XV of 1856 applies to the case and that under Section 2 of the Act the plaintiff by marrying a second time forfeited her right to maintenance from the estate of her first husband. It is also contended that remarriage dissolves the relationship between the widow and the family of her first husband and as the right to maintenance is founded on relationship, it ceases as soon as the relationship is put an end to by remarriage. In supports of there contentions the learned Advocate for the appellants relied on the rulings of the Calcutta High Court in Matungini Gupta v. Ram Rutton Roy (1891) I.L.R. 19 Calc. 289 and Rasul Jehan Begam v. Ram Surun Singh (1895) I.L.R. 22 Calc. 589; of the Bombay High Court in Vithu v. Govinda (1896) I.L.R. 22 Bom. 321 and Panchappa v. Sanganbasawa (1899) I.L.R. 24 Bom. 87 and of the Madras High Court in Murugayi v. Viramakali (1877) I.L.R. 1 Mad. 226. He also referred to West and Buhler’s Hindu Law, Vol. II, p. 999.

3. Had the question not been concluded by the rulings of this Court I should be inclined to accede to the contentions of Pandit Sundar Lal. But as the course of rulings in this Court has been uniform, I feel myself bound by those rulings whatever my personal opinion may be. In Har Saran Das v. Nandi (1889) I.L.R. 11 All. 330 it was held by Straight and Tyrell, JJ., that a widow belonging to the sweeper caste, in which there was no obstacle against the remarriage of widows, did not by marrying again forfeit her interest in the property left by her first husband and that Act No. XV of 1856 did not apply to the case of such a widow. A similar view was held by Straight and Tyrell, JJ. in Dharam Das v. Nand Lal Singh Weekly Notes 1889 p. 78 which was the case of a widow belonging to the Ahir caste. In the case of a widow of the Kurmi caste, Ranjit v. Radha Rani (1898) I.L.R. 20 All. 476 Blair and Aikman JJ. followed the above rulings and observed: “Several unreported cases have all been decided in this Court in the same way. We see no-reason to doubt the soundness of those decisions, which form, as far as we know, a consistent cur sus curim in this court.” According to these rulings not only is Act No. XV of 1856 inapplicable in the case of a widow who is permitted by the custom of her caste to remarry, but she does not forfeit the property inherited by her from her first husband. The effect of these rulings, there-fore, is that the relationship with the family of her first husband does not come to an end, and she does not by remarrying forfeit her right to maintenance. Un chastity may entail a forfeiture of her right to maintenance, but it cannot be said that a widow who, has married again has thereby become unchaste. I may observe that Mr. Sundar Lal has not based his contention on this ground. He urges that the right to maintenance has ceased because the relationship with the first husband’s family has ceased; but in view of the rulings to which I have referred this contention cannot be accepted. If the widow even after remarriage is entitled to retain the estate of her first husband, she is afortiori entitled to receive the maintenance fixed for her by the decree passed against her husband and against the transferees of his estate. The appeal therefore fails and must be dismissed.

Stanley, C.J.

4. I agree in the proposed order.

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