পাতা:ব্যবস্থা-দর্পণঃ প্রথম খণ্ড.djvu/৪৫৯

VYAVASTHA?DARPANA - 337 The answer of the pandits which the Privy Council adopts is, that—“if a widow from any other cause but unchaste purposes ceased to reside in the husband’s family and took up her abode in her parent’s family, her rights would not be forfeited.” This was followed in the Sudder Dewanny in the case of a Hindu widow and heiress. It is to be observed, however, that in the subscquent case of August 1850 by the same Court, the case was considered by the dissentient Judge as one of doubtful authority, and the Court was of opinion that she did not forfeit her right by leaving the husband's louse and seeking shelter under the roof of her own parents on an offer of an insufficient maintenance. In the case where the forfeiture was declared, the Judges who gave the decision observed that the deceased husband had never owned the property and that it was a mere case of maintenance. We do not adopt the distinction, but nevertheless, we regard the case before the Sudder as different from the present one. Strange, in his boy's on Hindu Law treats the right to maintenance as a charge on the property in the hands of the heir, and it certainly has always been so considered in this Court. In the Privy Council the question was whether the Hindu heiress forfeited her estate, by scleeting, without impropriety, her father's roof for her residence. But it is to be observed that the opinion of the pandits was generally fexpressed as to forfeiture of rights, and the Court expressed in general terms that the widow had a right under the circumstances to select that residenee, and could not be comprised to reside under the roof of her husband's family. This freedom of choice had respect to causes as applicable to a widow not an heiress as to one who inherited. There are certainly texts in the Hindu law looth ancient and modern which speak of the right of the relatives of the husband to have the widow resident under their roof in preference to that of her own family. The modern text writers do not adopt as law all the ancient texts. The question must always l,e, are those positions in their mature capable of being applied by a Court of Justice, and how far are they to be modified with reserence to the altered usages of society and the altered position of things P it is to be observed further that the ancient text writers do not state in any case that maintenande is forfeited if the widow inverts the order of residenco and prefers her father's root to that of her deceased husband. Macnaghton, in the passage of his work which is referred to in the Sudder, does not state that the consequence of non-observance of the rule as to residenee is a forfeiture. We have examined the texts of the our: iont law, and we think they bear out the opinions of the pandits in the ease before the I’rivy Council. file texts say as to maintenance, forfeiture is incurred by unclaste life, lout they do not say that it is ineurred otherwise. There are unany duties enjoined to women in the text of a moral or religious nature, the violation of which would never have involved any forfeiture. Forfeitures are not to be extended by construction. The duty to reside with the family of the deceased husband, is not enjoined for the sake of thrist, merely because it may in that way be least burdensome to maintain the widow, (that inaybe always duly regarded and provided for by the exercise of discretion in the amount and mode of maintenance) but the foundation of the duty to reside is that she may be safe from being tenupted to sin, and so may avoid disgracing herself and dishonouring the family. The texts speak in condemnation of her resort to “ or family's roof as elsewhere. It is no resort to the house of strangers, and there is nothing dangerous, immoral, or dishonoring in the act. It is not shown to be in any way alolorrent to the usages and eustoms of respectable Hindus : on the contrary we believe it to be a common practice, not disapproved of. The reasons which existed in the olden time for placing restraints on females, applied just as much to somale heiresses, as to females entitled to mere maintenance. Nothing can be found in the old texts which intiposes the condition of forfeiture on widows and heiresses, not acting strictly on the rules as to preferential residence. The stronger words have been controlled by the Privy Council with a declaration of the widow's right, founded on reasons of decorum and propricty which are applicable to all cases alike. The majority of the Court in the case in the Sudder doclare the Hindu widow, to be always in a depen ‘strangers ” for a dwelling. But the woman is presumably as safe under her own father's