BHOLA UMAR Vs. MTKAUSILLA

JUDGEMENT

(1.) There has undoubtedly been considerable controversy as to whether Act 15 of 1856 was applicable to all Hindu widows or not. The Allahabad High Court from the very beginning has laid down that the Act does not apply to such Hindu widows as were entitled under their custom to remarry and who were not bound to take advantage of the Act. Opinion in the other High Courts has considerably varied, and the Allahabad view has been openly dissented from. But it appears that with the lapse of time opinion in the other High Courts, particularly the Madras High Court, has come round towards the view of this Court, at least so far as the applicability of the Act is concerned. The Judges who have held that all widows are governed by the provisions of Section 2 of the Act, have based their view on the wide language of that section. It reads: All rights and interests which any widow may have in her deceased husband's property shall upon her remarriage cease an determine as if she had then died.

(2.) If the section were to be taken in its widest scope, it would have to be conceded that the provision of law applies to any widow whatsoever. It would then include not only all Hindu widows, but even Christian and Muslim widows. Such a construction of the section would lead to absurdity. It is therefore impossible to say that Section 2 of the Act can be interpreted without reference to the other provisions of the Act and without reference to the preamble. Were it possible to interpret Section 2 standing by itself and independently of everything else, there might have been some force in saying that it applied to all Hindu widows. But we are forced to restrict its scope so as to exclude at least Christian, Muslim, Parsi or Buddhist widows. In order therefore to find out the true scope of the section, one is compelled to look to the provisions of that Act contained in Section 1, as well as to the preamble. No doubt a preamble can never control or restrict the substantive provisions of an Act. It merely supplies a key to the interpretation of those sections. But where there is an ambiguity in the sections or where there is any doubt as to the true scope of the provisions of that enactment, the preamble may be of some guidance. The Act was professedly passed with the object of removing all legal obstacles to the marriage of Hindu widows. The preamble stated that it was known that Hindu widows, with certain exceptions, are held to be by reason of their having been once married, incapable of contracting a second valid marriage and the offspring of such widows by any second marriage are held to be illegitimate and incapable of inheriting, whereas many Hindus believed that this imputed legal incapacity, although in accordance with established custom, was not in accordance with the precepts of their religion and desired that the law should no longer prevent those Hindu widows who may be so minded from adopting a different custom. The Act was intended to relieve all such Hindus from this legal incapacity complained of and to remove all legal obstacles to the marriage of Hindu widows.

(3.) It is therefore obvious that the legislature recognized that there were certain exceptions to the general practice of widows not being allowed to remarry. Obviously the intention of the legislature was to remove the legal obstacles in the way of remarriage and not to impose another penalty or restriction on those who did not stand in need of any legislation. It is therefore most unlikely that the legislature would have intended to deprive Hindu widows who by the custom of their caste were entitled to remarry and to retain the property of their husbands from holding the estate. The object of the Act, professedly was to enable those widows, who were incapacitated from marrying to remarry. But as it was considered that remarriage where it is not allowed by custom should not disturb the relations of the deceased husbands or their estate, there was an express provision made in Section 2 that all their rights and interests in the deceased husband's property shall cease and deters mine.