1832, viz. that in civil suits, where the parties to them are of different religious persuasions, Mahomedan or Hindoo," the laws of those religions shall not be permitted to operate to deprive such parties of any property, to which, but for the operation of such laws they would have been entitled." In the body of the Act, immediately following the preamble, and to be interpreted of course in connection with it, it is expressly declared that so much of any law or usage as inflicts on any person forfeiture of property, by reason of his or her renouncing or having been excluded from the communion of any religion or being deprived of caste, shall cease to be enforced as law. Now it has been argued that inasmuch as under the Hindoo law a Hindoo widow forfeits her right to share in her husband's estate if she is proved to be guilty of incontinence, she is notwithstanding under the terms of this Act released from such penalty. Such an interpretation of the intent of the Act appears to us to be very strained. We are of opinion that the law can only be enforced in cases when a Hindoo widow has renounced the Hindoo religion and such renunciation is followed by loss of caste. We cannot suppose that it was ever intended or contemplated that when a Hindoo widow was proved to have been unfaithful to her husband's bed and he had by an express declaration put her aside, this Act should afford her a shelter under such circumstances and restore to her the right of inheritance which she had morally and legally forfeited. Over-ruling, therefore, upon both points the pleas that have been urged in behalf of the plaintiff, we dismiss the appeal with costs. Mr. A. Sconce. I concur with my colleagues upon the issue of fact raised in this appeal, and I desire only to state shortly the opinion which I form upon the further question-whether, assuming the fact of adulterous intercourse to be established, the forfeiture of the right of succession to her husband's estate, which the plaintiff under the Hindoo Law has incurred, should cease to have legal effect by reason of the enactment of Act XXI of 1850. That a Hindoo husband might put away his wife for adultery or unchastity, and that the wife or (widow) thereby forfeited the right of inheritance or succession to her husband's estate which would have otherwise devolved on her, we have had no contest; but it is argued in adoption of the language of the Act quoted, that the forfeiture imposed by the Hindoo Law by reason of the widow being deprived of caste cannot now be enforced. The title of Act XXI of 1850 declares its purpose to be the extention of the principle of Section 9 of Regulation VII of 1832 and in the preamble this principle is embodied, being to the effect that if one party to a suit should not be of the Hindoo (or Mahomedan) persuasion, the laws of the Hindoo religion shall not be suffered to deprive him of any property, to which but for the operation of such Laws, he would have been entitled. Accordingly in the body of the Act it is declared that any law which may impose a forfeiture of rights as a consequence of the renunciation of, or exclusion from, the communion of any religion, or of being deprived of caste shall cease to be enforced as Law. Here obviously the only words which can bring the present case within the meaning of Act XXI of 1850 are these-being deprived of caste, what then do these words import, what is the cause to which deprivation of caste is ascribed, or under what circumstances is the deprivation, in the act supposed to have arisen. It seems to me that the act itself intimates the limit within which its operation must be confined and that the circumstance above is contemplated in which the claim to a right of succession is opposed by reason of the claimant's having changed his religious persuasion keeping strictly however to the facts which in the present suit give occasion to the application of the Act, it is more pertinent to consider whether the admitted competency of a Hindoo to put away a wife for adultery and to deprive her of the right of succession to his estate is affected by the Act, I do not find in Hindoo Law a term equivalent to our word divorce, nor, I may add, does the Hindoo Law contemplate so complete a separation of the marriage tie as a dissolution of a marriage by the law of England through the form of divorce creates. Probably for example, the Hindoo law of separation does not place the woman in a position in which she shall be free to contract a second marriage. In this respect the law may be one sided favourable to the husband and unfavourable to the wife. But nevertheless it is indubitable that in the event of adultery by the wife being established, it is by law competent to the husband to put her away and that the forfeiture of her rights as wife is a legal consequence of her unchastity. If this operation of the law may not be accurately described by the word divorce it indicates a substantial substitute for that form of law and in itself constitutes a legal principle calculated effectively to regulate the relations of husband and wife married as Hindoos. Looking at the issue under discussion in this light, I cannot suppose that it fell within the contemplation of the legislature, by Act XXI of 1850 to make any alteration in what, with the qualifications above expressed, I may describe as the Hindoo law of divorce Act XXI of 1850 was passed, as I take it wholly in the cause of religious toleration, and it is impossible, as I think to divest its application to a purpose foreign to that object. To suffer the Act to subvert another law to which it contains no allusion, and least of all to suppose that the relaxation of the bonds which tend to secure and elevate the relations of married life was one of the direct purposes of the enactment. The 30th of December 1258.-S. D. A. D. Vol. II. p. 1891. CASE NO. 380 OF 1853. MUSST. BAL-GOVIND AND OTHERS (DEFENDANTS,) APPELLANTS, versus Case bearing on the vya vastha N. 664. RESPONDENTS. This case was admitted to special appeal on the 29th The particulars of this case will be found detailed in the decision of the Additional Judge of Sarun at pages 74 and 75 of the published decisions of that Zillah for the month of March 1853. The suit was instituted for 'possession and registration of names in virtue of a purchase at a sale per decree of court. The two principal defendants are Musst. Bal-govind and Musst. Tila800. The former states that the share held by her, as guardian of her three minor sons has been sold in December 1845. The latter contends that during the lifetime of her husband, who is insane, the shares of the children cannot be disposed of, and that indeed they have at present no right at all. In appeal the Additional Judge rejected certain objections put forward, affecting the interests of Mohun Bhuggut, and he considerded that the opinion of the Principal Sudder Ameen, that the rights and interests of an insane person pass to his heirs, founded on extracts from works on the Hindoo law of inheritance is correct, subject to this L restriction, viz. that the insane person is entitled during life to maintenance. We admit the special appeal to try whether the view of the law taken by the Additional Judge is correct and whether possession and registration in lieu of the son, Abilag, can be given during the life-time of his father on the doctrine that the estate of an insane person in Mithila passes so absolutely to his son, as to become his estate, and liable to be transferred for his debts, subject only to the condition of maintenance of the insane father. JUDGMENT. After perusing and considering the extracts from works on the Hindoo law of inheritance, filed with record and relied upon in this case by the Principal Sudder Ameen and the Judge, we find that the interpretation put upon them by the lower courts is erroneous, those extracts refer to the imposibility of a person succeeding to the inheritance of property who is afflicted by idiocy, insanity, &c; but they nowhere prescribe that a person having once succeeded and subsequently becoming disqualified from the causes alluded to, shall be dispossessed of his property in consequence. We are, therefore, of opinion that the Judge is wrong in holding that the share of Abilag in his father's property had past to him, burthened only with a maintenance for his insane father during his life-time, and therefore the purchase of the property as Abilag's cannot stand, and we reverse that part of the Judge's decision with costs for the special Appellant, which affects that portion of the estate belonging to Ram-suhae.-The 18th of May 1854. S. D. A. D. p. 244. PRIMITIVE CASTES. CHAPTER XI. ON THE CASTES OF THE HINDOOS. Originally there were four castes:-the Brahmana, The first three of these are called dwijàti or dwija (twice born,*) they being considered as born again by initiation in the rite of upa-nayana (investiture with the sacred thread.) MIXED CASTES. In ages other than the present (kali,) intermarriages having been allowed by law,† and followed in practice, amongst the four primitive or pure castes, there became several mixed (sankara) castes.‡ The sons by women one degree lower than their husbands are named in order the Murdhábhishikta, Máhishya and Karana or Kayastha.§ They are respectively begotten by a Brahmana on a wife of the Kshatriya caste, by a Kshatriya on a Voisha wife, and by a Voisha on a Shúdrá wife.¶ The sons of women married in the inverse order, or two or three degrees lower are as follows:-"From a Bráhmana, on a wife of the Voishya class, is born a son called Ambashtha, or Voidya, on a Shúdrá wife, a Nishida, named also Párasava: From a Kshatriya, on a wife The three twice born classes are the sacerdotal, the military and the commercial; but the fourth, or servile, is once born, that is, has no second birth from the Gayatrí, and wears no thread. nor is there a fifth pure class.-MANU, Ch. X. v. 4. + See ante, p. 1019 et seque. In all classes they, and they only, who are born, in a direct order, of wives equal in class and virgins at the time of marriage, are to be considered as the same in class (with their fathers)-Sons, begotten by twice born men, on women of the class next immediately below them, wise legislators call similar, (not the same, ) in class (with their parents,) because they are degraded, (to a middle rank between both,) by the lowness of their mothers.-MANU, Ch. X. v. 5,6, § The Karana, though explained by some Commentators to be the Kayastha tribe, is not the Uttara-rárhiya or Dakkhin-rárhiya Káyastha common in this part of Bengal. The latter is one, and the best, of the pure Shudra tribes, and the profession of the persons of this tribe is to read and write; whereas the persons of the Karana caste are of a mixed race, as is manifest from the above text; they are to be found in the eastern part of Bengal, and are called Shudra Kayasthas, who employ themselves as menial servants. Vide Rájá Rádhá-kánt's Shabda-kalpa-druma Vol. I. pp. 542-549, and its Appendix pp. 457-466; also the Shudra-dharma-tattwa by Kamalá kara Bhatta and chara-mirnaya-tantra. ¶ Vide Kullúka Bhatia's Commentary on MANU, Ch. X, v. 6. |