In Calcutta, it was Ishwar Chandra Vidyasagar who launched the campaign to remove the ban on widow remarriage. In the 1850s, he began, like other social reformers, by writing a pamphlet in Bengali showing that remarriage had the sanction of the shastras; he even debated the issue with Hindu priests in Sanskrit. The debate was taken up by the vernacular press and, soon, songs were heard both praising and lambasting the campaign and its leader, Vidyasagar. The latter also translated his work into English and gave copies of it to British officials. On their advice, he submitted a petition to the governor general in 1855 asking for a law to be passed recognising widow remarriage.
That same year, a draft Bill was introduced in the legislative council by J P Grant, based on Vidyasagar’s petition. Grant also quoted two Englishmen -- Ward, who said the ban forced many widows into prostitution, and Major Wilkinson who claimed he was repeating the opinions of a Brahmin in Nagpur who said that the ban “leads to great moral depravity and vice”.
More than 40 petitions were submitted against the Bill by around 60,000 ‘higher class’ Hindus. The argument that the ban on widow remarriage led to ‘depravation’ was not referred to by most of these petitions which set out to prove that it was enjoined by the shastras and that any change in the law as it stood would mean an interference with Hindu custom.
The Bill was passed in 1856, although not many remarriages resulted from it.
A Widow Remarriage Society did its best to help maintain what was practically a Widow Remarriage Bureau. The reformers themselves found practice more difficult than preaching. A young reformer announced to the cheers of his audience that he would only marry a widow. The Widow Remarriage Bureau offered him first choice. Before the marriage took place, the reformer invited his best friends to dinner. How many of you, he asked, will accept my invitation to dinner after I am married? Not one person was willing. The marriage never took place.
In effect, the Act made remarriage more difficult for widows belonging to castes and tribes that had never placed a ban on widow remarriage. Why? Because once the law was framed and came into effect, it overruled all the ‘customary’ laws that various groups in India followed. These were laws that were not laid down but were followed because of existing traditions and customs practised by the particular tribe or group. As the fine print showed, the Act accorded all Hindu widows the right to remarry; it added a clause classifying the kinds of property a widow had rights to upon remarriage. If her property had come to her from her natal family, or been given to her absolutely, she was entitled to keep it on remarriage. If, on the other hand, it came to her from her husband, or his lineal successors, it would cease to be hers on remarriage unless she was ‘expressly permitted’ to keep it.
In an interesting ruling in 1889, the Allahabad High Court established what would become a precedent for this court and lower courts. This was the famous Har Saran Das v Nandi case where Nandi, the widow of a sweeper, took over her deceased husband’s interest in two kothas of land and later remarried. Her late husband’s brothers contested her right to the property following her remarriage. The high court overturned the decision of two lower courts and decided in favour of Nandi. The court’s position was that the Widow Remarriage Act of 1856 did not apply to castes where customary law had permitted widow remarriage prior to 1856, and that in order for a remarried widow subject to customary law to be deprived of property to which she had succeeded as heir of her first husband, a custom decreeing such forfeiture must be proved. However, in an altogether different twist, the Madras and Calcutta high courts distanced themselves from this ruling. Thus it came to be that the social consequences of the Hindu Widow Remarriage Act varied according to the geographical jurisdiction of the high courts.
Within the jurisdictions of the high courts of Calcutta, Madras and Bombay, the result was the displacement of customary law regarding remarriage and the establishment instead of high caste Hindu values that held widow remarriage in low esteem and insisted on a penalty (in this case, losing inheritance rights) being imposed if a remarriage did occur. Moreover, few women from the upper castes availed of their new right to remarry, while those widows who, in exercise of their customary rights, remarried independent of the law found themselves subject to the forfeiture clause, regardless of their customary law.
Towards the 1890s, in Bengal where the initiative for widow remarriage began, it was observed that a large number of widows were still being forced to live celibate and austere lives despite the reform endeavours of men like Ram Mohun Roy, Ishwar Chandra Vidyasagar and others. The Act of 1856 did make widow remarriage legal, but it could not make widow remarriage socially acceptable. Nor was it possible to enforce it with the help of the police. This was not like the movement for the abolition of sati, which was backed by law-enforcers and invited severe penalties. In the 1890s, it was reported that 40 years since the Bill was passed there had only been 500 widow remarriages.
The Hindu Code Bill of Independent India (1955) superseded the Widow Remarriage Act of 1856. Nothing in the Hindu Marriage Act of 1955 restricts widow remarriage. Moreover, nothing in either the Hindu Marriage Act (1955) or the Hindu Succession Act (1956) provides for the forfeiture of property inherited by a woman from her first husband upon her subsequent remarriage.
(Anu Kumar is a writer and journalist based in Delhi)
Infochange News & Features, September 2009