Why You Should Read This
- Indian society treats widows cruelly. They are either pitied or ostracised. And remarrying is often difficult or impossible.
- It is commonly believed that this treatment of widows – among Hindus – is in accordance with religious beliefs, and that such attitudes are fading away over time – especially among the educated upper classes.
- However, the lower castes – which constitute the majority of India’s population – traditionally granted their widows far more rights than the elites, including the right to remarry.
- This paper, written by Lucy Carroll in 1983, examines how a law introduced by the British to promote widow remarriage in colonial India ended up having the opposite effect – forcing lower castes to adopt restrictions on remarriage that were previously only associated with upper castes.
- We have condensed the original 12500-word paper into a 2,000-word summary. You can Click on each point to dig deeper and get the complete picture. in 10 minutes or Read only the numbered points. in 2 minutes.
The legal system established by the British in India was based on a promise that in matters such as marriage, inheritance, succession and adoption, Indians would be governed according to their own laws. These laws were based on either religious laws derived from texts or the unwritten customs of castes. Over time, the British also gave themselves the right to create new laws.
- In the case of Hindus, religious laws were based on Sanskrit scriptural texts, which were written by Brahmins and could only be read by Brahmins. These texts came to be regarded by the British as “Hindu Law”.
- And then there were the various rituals and practices followed by each caste. Even though they were officially recognised as “customary law”, there were no texts that recorded these customs, which made it very hard to prove them in court – especially when they contradicted the laws that were written down.
- When the British wanted to initiate reform, they enacted fresh legislation. These “statutory laws” passed by the government had the power to override all other laws.
In 1856, a Brahmin-led campaign to legalise widow remarriage resulted in the passing of the Hindu Widows’ Remarriage Act. This new law conflicted with existing customary law, which had always allowed lower caste widows to remarry.
- The Remarriage Act was passed in response to a social reform campaign, led by a Brahmin educator Ishwar Chandra Vidyasagar.
- The problem of widows – especially child widows – was a major concern among upper caste Hindus. Having lost their husbands at a young age, they were considered sinful and inauspicious and were forced to spend the rest of their lives avoiding any kind of joy, dedicated instead to prayer, fasting, and hard labour. 😞
- The sheer harshness of the demands of widowhood often pushed these women into entering prostitution to escape it.
- The lower castes – the Sudras and the so-called Untouchables – who represented 80% of the Hindu population, did not practice child marriage or prohibit widow remarriage.
The Remarriage Act required widows to give up any wealth or property inherited from their first husband before remarrying. For upper caste widows who had never been allowed to remarry before, this was a limited issue. For lower caste widows, it was a new restriction on long-held rights.
- Since the customs of many lower castes already allowed widows to remarry whilst continuing to retain their inheritance, the Remarriage Act ended up creating new hurdles for lower caste widows. 🧐
- This conflict had arisen because the Remarriage Act had been drawn up with Hindu textual law as its only basis.
- According to the Hindu texts, a widow could only inherit her husband’s wealth as long as the husband did not leave behind a son, grandson, or great-grandson.🙄
- Whatever she inherited only belonged to her for her lifetime. She did not have the right to sell any inherited assets. After her death, the wealth would pass not to her own heirs, but to her husband’s nearest male heir.
- Thus, the Remarriage Act had added on to what it understood as the existing Hindu textual law position on the inheritance rights of widows, by specifying what would happen if they remarried.
Although this law was supposed to promote social justice, its wording was very vague. Courts described it as “misleading” and “ambiguous”. There was constant disagreement between judges on the question of whether it applied to lower castes.
- The wording of the Act indicated that it applied to all Hindu widows. But, it also seemed to be aware that not all Hindu castes disallowed remarriage. 🤯
- So what about widows in castes that already had no restrictions on remarriage?
- This question was significant because, if the Act was strictly enforced, they now faced the prospect of losing property inherited from their first husbands because the law applied to all Hindus.
- Male relatives of a widow’s dead husband could now challenge her right to keep her inheritance upon her remarriage. Many such cases were filed in courts across the country.
- The four high courts that were in operation in British India at the time – Calcutta, Madras, Bombay, and Allahabad – took contradictory views on this question.
The Allahabad High Court gave importance to customary law. It ruled that if a particular caste permitted widow remarriage before the Act, then the Act did not apply to them and therefore it could not be used to take away a widow’s inheritance when she remarried.
- The case which set the a judgement which becomes a guide for future rulings on a particular issue involved a woman named Nandi, the widow of a sweeper, who inherited her dead husband’s rights over some land and then remarried. Her first husband’s brothers then filed a case, arguing that she had lost the right to keep the property. 😈
- The Allahabad High Court allowed Nandi to keep the property, arguing that in the sweeper caste, the custom of allowing widow remarriage was well established.
- The Court did not apply the Remarriage Act to this case because it felt the law was passed to grant rights to widows who could not remarry. So, it could not be used to restrict the rights of those who were already allowed to remarry. 🤔
The Calcutta High Court decided on the opposite conclusion. Instead of considering the customs of the caste in question, it relied on a strict reading of Hindu textual law, ruling that all Hindu widows had to be deprived of their inheritance upon remarriage.
- The Calcutta precedent was set by a case involving Matungini Roy, a widow who inherited her husband’s property and later remarried under the Special Marriage Act after leaving Hinduism and converting to the Brahmo Samaj. A male relative of her first husband filed a case saying that she had lost the right to her inheritance by remarrying.
- The court ruled against the widow. One of the five judges on the bench disagreed with the verdict. The other four agreed that the widow had to give up whatever she had inherited, but they too disagreed on the exact reason.
- One of them believed that the clause of the Remarriage Act required widows to give up their inheritance applied to all Hindu widows, even if they did not remarry as Hindus.
- Another judge based his ruling on Full quote: “Of him whose wife is not deceased, half the body survives. How then should another take his property while half his person is alive?”, which stated that a man’s property must go to his widow after his death, because half his body is considered to live on through her. The judge reasoned that if a widow remarried, she would become half of the body of another man and so, she would lose her right to her first husband’s wealth. 🙈
- Another important Hindu text, the Yajnavalkya Smriti, said nothing about bodies and instead simply directed that widows were to be first in the line of inheritance if a man died without a son. This was ignored.
- A third judge went further than the previous two, arguing that both the Remarriage Act and Hindu textual law were applicable and led to the same conclusion.
- He added that even when remarriage was allowed by custom, the very same custom demanded that the widow give up her inheritance from her first husband. He arrived at this conclusion without hearing any evidence on the matter, in direct contradiction of the Allahabad High Court’s position, which had been arrived at by examining evidence.
- By selectively reading Hindu textual law and completely disregarding custom, the Calcutta High Court created a precedent that made it impossible for any Hindu widow living under its jurisdiction to escape the Remarriage Act.
The Bombay High Court also made it impossible for a widow to remarry while retaining her inheritance from a previous marriage. It argued that the Remarriage Act applied to all widows irrespective of custom, because it captured the “true principles of Hindu law”.
- The initial precedent in Bombay was similar to that of the Allahabad High Court, but it was later overruled by the Chief Justice, who ruled that the Remarriage Act applied to all Hindu widows, regardless of the customary laws of their castes.
- He attacked the Allahabad High Court’s interpretation of the law. In his opinion, it had “overstepped its authority” by not going by the exact wording of the Act. To him, it was probable that the law deliberately restricted the rights of some widows because that was in accordance with the “true principles of Hindu Law” — even though the very purpose of the Act was to change existing “Hindu Law”.
The Madras High Court sided with the Bombay precedent, ruling that custom could not override statutory law. Thus, all the other high courts apart from Allahabad prevented widows from retaining their inheritance upon remarriage.
- In 1932, the Chief Justice of the Allahabad High Court launched a direct attack on the position of the other high courts in one of his judgements. If all Hindus truly believed that half of the husband’s body survived through the widow, how could they possibly have allowed her to remarry, he asked. To him it was clear that the castes that allowed remarriage had never lived according to the Sanskrit texts that the British were treating as the source of a universally-applicable “Hindu Law”. He pointed out that even the Manusmriti, the most important of these texts, clearly states that its laws were meant only for the three higher castes. 😏
This tussle over widow remarriage continued for an entire century. During this period, the Hindu Widows’ Remarriage Act of 1856 had little positive impact on the lives of widows.
- Although the law had been passed specifically in response to upper caste demands for reform, few upper caste widows ended up taking advantage of it because the law did nothing to end the social stigma around widow remarriage.
- Widow remarriage had been the norm among lower castes until the law was passed. But the newly created prospect of losing their inheritance meant that widows now faced a significant barrier to remarriage. 😣
- This continued until 1956 when newly independent India passed the Hindu Code bills drafted by B.R. Ambedkar. The new laws granted all Hindu women the right to remarry without forfeiting their inheritance.
Thus on the whole, customary law was cast aside and replaced with Brahmanical values that insisted that the widow had to suffer some penalty if she chose to do anything other than live a miserable, prayerful life. This was a part of the unintended, but inevitable process of Brahminisation of low castes and Hinduisation of tribals enforced by the British administration of Hindu textual law.
- This process was enabled by the overwhelmingly Brahmin framework from which the British justice system operated. Its laws came from Brahminical texts and most of the Indian judges who applied them were Brahmin. So, the system had little knowledge of or respect for the lives and practices of the lower castes. 🤷
- Allowing this Brahmin domination was convenient for the British. It allowed courts to pretend that justice could be delivered by referring to books that contained simple, universal laws rather than examining the complex, diverse practices of each locality or group.
- With regards to widow remarriage, outside of the jurisdiction of the Allahabad High Court, customary law was permanently placed at a disadvantage. If the custom went against the text, then it had to be proved with evidence. Whereas if it agreed with it, then no evidence was necessary for it to be regarded as valid.
- Even within the Allahabad High Court jurisdiction, although custom was recognised, it lost the possibility of evolving or changing over time. To establish that a remarriage had happened under customary law, courts required proof that the custom existed before the passing of the Remarriage Act in 1856. Poor, illiterate litigants often struggled to provide such evidence, and when they couldn’t, the courts ruled that the remarriage happened under the Remarriage Act rather than customary law. So, custom became frozen in time – everything that could be proved to be existing before 1856 was valid and recognised, anything that evolved afterwards was disregarded. 🤯
- All this meant that, over time, society constantly moved closer and closer to the principles of orthodox Hinduism.
Source text: Law, custom, and statutory social reform: the Hindu Widows’ Remarriage Act of 1856
Publication: The Indian Economic & Social History Review
Author: Lucy Carroll
Note: This summary reflects an argument put forward by one scholar in one paper that we think would be interesting or useful to discuss. It does not represent academic consensus on the topic, which is always growing and evolving. If you would like to know how other scholars have built on or critiqued the arguments presented in this paper, click here to see some of the works that cite it.