The following point has been referred for decision to the Full Bench, namely:

Does a Hindu widow who remarries in accordance with a custom of her caste forfeit thereby her
rights in the estate of her first husband.

11. I take it that in this case the Hindu widow contracted a valid marriage and the marriage was
in accordance with and recognized by her caste, and would be recognized by the Courts as a
valid marriage. The question'put to us does not say whether we have to consider the question on
the basis of Act 15 o£ 1856, (The Hindu Widows Remarriage Act), or whether we should
consider it from the point of view of the Hindu law. In certain cases decided by Courts other
than this Court, it has been held that where a Hindu widow remarries validly according to the
custom of her caste, she does not forfeit her late husband's estate under the Act (Act 15 of 1856),
but she does forfeit it under the Hindu law. As the question put to us is not restricted, we shall
have to consider it from both points of view. To start with, I proceed to consider the question
with reference to Act 15 of 1856. The Hindu Widows Remarriage Act of 1856 contains a rather
long preamble which indicates that conflicting opinions were held in Hindu society as to the
validity of Hindu widows' marriage, and on account of there being some uncertainty about the
view that might be taken in the Courts about the validity or otherwise of such marriages, the
Governor-General in Council was approached to pass a law legalizing such marriages. The
preamble is rather long but is very important in order to find out whether the Act was meant or
not to apply to the case of those Hindus among whom a custom sanctioned the validity of a
widow marriage. Before I read the preamble I must express my agreement with the opinion
which has been expressed from time to time that if there be a conflict between the preamble and
the Act itself, the preamble governs the Act. In such cases of conflict, it must be taken that the
legislature in framing the Act has failed to achieve its object and therefore the language of the
Act must prevail over the wishes of the legislature, as expressed in the preamble. As an example
I may cite the case of the Mahomedan Wakf Act of 1916 in which there was a conflict between
the preamble and the Act; the preamble professed to give the wakf a retrospective effect but the
body of the Act failed to convey that idea and it was held that in spite of the preamble, the Act
had no retrospective effect. (His Lordship after quoting the preamble proceeded). "The preamble
notes that there are certain exceptions to the rule that the marriages of Hindu widows were held
to be illegal and not sanctioned by the Shashtras. The preamble then says that it is just to relieve
"all such Hindus from this legal incapacity of which they complain" and the Act proceeds to
remove the legal obstacles to the marriages of Hindu widows. It is clear therefore that the
legislature wanted to give relief only to such Hindus as complained of their incapacity to
contract for their widows a marriage. The Act therefore is an enabling Act and was never meant
to create a disability where none existed. But as I have said, if the body of the Act does create a
disability which may not have been intended, that disability will have to be rocognized."

18. The next case is of Ganga Pershad Sahu v. Ramassrey Shahu [1911] 38 Cal. 862. This was a
case relating to the right of guardianship of a widow who had remarried according to her caste
rules. The Judges had to construe Section 2, Act 15 of 1856, and held that the Act did not apply.
At the bottom of p. 870 the learned Judges accepted the second contention of the counsel for the
lady and quoted the case of Parehh Banchor v. Vahkat [1887] 11 Bom. 119 in support of their
case. The learned Judges however remarked that the forfeiture of her first husband's property
would take place under the Hindu law. This case therefore does not support the view that there
would be a forfeiture under the Act. In Mohammad Umar v. Mt. Man Kuer [1917] 40 I.C. 783
their Lordships professed to follow the case of Rasul Jehan Begam v. Ram Surim Singh [1895]
22 Cal. 589 and held that whether Act 15 of 1856 applied or not, there would be a forfeiture
under the Hindu law, see top of p. 918, per Sanderson, C.J. The same view was expressed by the
other Judge. This case therefore does not support the view that the Act applies.

19. The case of Santala Bewa v. Badaswari Dasi A.I.R. 1924 Cal. 98 was the case of a widow
belonging to a caste who had recently adopted the Hindu customs, being an originally non
Hindu of an aboriginal tribe; yet it was held that the widow forfeited her first husband's property
under the Hindu law. At p. 735 the learned Judges remarked that in their opinion the case was
governed by ordinary Hindu law and they further said that Section 2 contemplated the case of
any widow in-eluding the widow of a class among which remarriages are allowed. The case does
not discuss any principle, does not discuss the language of the Act and follows what are
supposed to be the earlier cases of the Court. I have already pointed out that some restriction will
have to be placed on the words a widow" in Section 2, Act 15 of 1856, for it would otherwise
cover the case of a Mahomedan widow or a Christian widow who, nobody would contend, came
within its true meaning.

28. There is yet another ground for holding in favour of the widow. Assuming that the strict rule
of Hindu law applies to a caste which does not recognize the strict Hindu law in that case, the
remarriage of a widow can only be regarded as an immoral act. The orthodox Hindus would not
recognize the marriage as valid although the caste people may recognize it as valid and although
the British Indian Courts may regard it as valid. It has been held by their Lordships of the Privy
Council that a widow who has once inherited her husband's property does not forfeit it by reason
of her subsequent immorality : see Moniram Kolita v. Koeri Kolitani [1880] 55 Cal. 776. The
widow after inheritance may lead openly the life of a common prostitute yet she may not forfeit
her property under the Hindu law as interpreted by their Lordships of the Privy Council. Yet it is
said that if instead of leading the life of a common prostitute, the widow should remarry and
thereby lead what the world generally regards as a moral life, must it follow that she should
forfeit her first husband's property? The orthodox Hindu, as I have said, does not regard the
marriage as valid, to him it is no marriage then why should the marriage be regarded as anything
worse than the grossest immorality.? Can it be an act of justice to say that living as the wife of
one single man would be followed by a punishment, while the grossest immorality cannot be? It
was argued that this may be so but such was the Hindu law.