Gender,Customary Law,and the Colonial Law of Inheritance: The Keri Kolitani Case

Overview of the Case and Its Significance

The case Keri Kolitani v. Moneeram Kolita came up for hearing first before the court of the munsif (local judge for civil matters) of Golaghat, a small town in the Sibsagar district of Assam, and then before the appellate courts of Calcutta (now Kolkata), where the case was argued for almost a decade by renowned lawyers, including Mohini Mohun Roy, Hem Chandra Banerjee, N. C. Sen, Kali Prosunno Dutt and Kali Mohun Doss. The judges who heard and pronounced verdicts on the case included Justices Peacock, Kemp, Glover, Dwarkanath Mitter, Richard Couch, Jackson, Phear, Macpherson, Markby, Ainslie and Pontifex.

The Privy Council recorded the case as follows:

Atma and Ghinbora, both deceased, were brothers of the blacksmith caste, inhabiting Mouza Jorehati [Jorhat], in zilla Seebsagur [Sibsagar], in Assam. Atma left a son, Moniram Kolita, the plaintiff in this suit, and Ghinbora left a son, Ghindela, who married Keri Kolitani, the defendant, and died childless in 1866. On his death, Keri Kolitani succeeded to the possession of his ancestral lands in the village (rather more than 23 bighas), and the revenue papers were made out in her name. After her husband’s death, the widow began to cohabit with Mohana, and had a child by him. The plaintiff claimed the lands as his by inheritance. (Indian Law Reports [ILR], 1880, pp. 776–792)

The decree was given in favour of Keri Kolitani by the munsif of Golaghat on 24 March 1870, but it was reversed by the deputy commissioner of Sibsagar district on 1 June 1870. When the case came up before the High Court, the deputy commissioner’s judgement was upheld, but the matter was referred to a full bench of the High Court as a special appeal. On 9 April 1873, the case came up before a full bench of the High Court of Judicature at Fort William, Calcutta. The bench upheld the decision of the munsif of Golaghat. An application made to the High Court for leave to appeal to Her Majesty in Council (Privy Council) was initially refused on the grounds that the property in dispute was too small to merit such an appeal. However, ‘on account of the importance of the question submitted for determination and the great interest which the Hindu community takes in it’, a Special Order of Her Majesty granted the appellant leave to appeal. The appeal was to be ‘in the form of a special case upon the following questions, namely (a) whether, under the Hindu law as administered in the Bengal school, a widow, who has once inherited the estate of a deceased husband, is liable to forfeit that estate by reason of unchastity? and (b) whether the forfeiture, if any, is barred by Act XXI of 1850?’ (ILR, 1880, p. 779). These were the same questions which had been referred to the full bench of the High Court for its decision on the matter by a two-judge bench, with detailed remarks of the judges. On 28–29 November 1880, the Privy Council upheld the judgement of the full bench of the High Court and the appeal was dismissed.

This, in brief, traces the course of an apparently insignificant case which involved the colonial law of inheritance. During its journey through various levels of the courts, it gathered importance due to the plethora of issues it raised concerning gender, caste, race, region, religion, customary laws, colonial conversion laws and the role of the state. Thus, Keri Kolitani’s case presents a layered history of colonial times and illuminates aspects of colonial legality in Assam. The views expressed during the course of this formidable legal process touched on several moral, caste and gender issues that were considerably important to contemporary Hindu society. For the colonial administration, too, Hindu inheritance laws and forfeiture of rights due to conversion or loss of caste were matters of concern because of their possible impact on revenue settlements.

The case attains special significance in the history of jurisprudence in colonial India because, as in the raging debates over the Hindu Widows’ Remarriage Act of 1856 and the Caste Disabilities Removal Act of 1850, it brought into focus three different categories of law—Hindu law, customary law, and statutory law (Carroll, 1989, p. 2). It set into motion legal debates on whether the colonial British government, which had once promised its Indian subjects rights to be administered according to their own traditional laws, was violating this promise, especially in the case of its Hindu subjects, by systematically enacting statutes that altered certain provisions of Hindu personal law.

Codifying the Law and Its Complexities Under the Colonial System

To turn to the specifics of the case, when Moneeram Kolita brought the suit against the widow of his late uncle, he claimed that the property was part of the ancestral estate and not the separate property of Keri’s deceased husband, Ghindela. The plaintiff claimed that since Keri, after the death of her husband, was cohabiting with another man and had a child by him, she had become unchaste and lost her right to the property. The land which he claimed as ancestral property should now, therefore, belong to him. The munsif in his judgement held that the parties were entitled to the property in equal shares and made a decree to that effect. However, with regard to the widow’s loss of chastity, which could lead to her forfeiture of the property, the munsif observed that ‘although the defendant has lately taken a paramour, still, when a second marriage is not solemnised, the first cannot be dissolved’ (Bengal Law Reports [BLR], Vol 13, 1874, p. 2). Interestingly, the munsif of Golaghat, familiar with the local customs, did not consider the defendant’s marital status to have been affected by the fact that she was living with a paramour after inheriting her share of her late husband’s estate. Although taking cognizance of Keri Kolitani’s new status as the companion of a man to whom she was not married according to Hindu custom, the munsif did not consider that it disqualified her from owning the property inherited from her husband. This argument of the small-town munsif was ultimately upheld by the Privy Council because it was based firmly in the colonial law of inheritance, which stated that ‘an estate, once inherited, is not forfeited simply by unchastity’ (BLR, Vol 13, 1874, p. 90). It may be mentioned that the judges of the Calcutta High Court and Privy Council took note of this significant aspect of the munsif’s decree (‘The cohabitation with Mohana was stated as a fact in the Munsif’s judgement’ (ILR, 1880, p. 777)), but as Ghindela’s widow, Keri Kolitani did not lose her rights because she had made no second marriage. This amounted to the Privy Council’s acceptance of an unstated custom of certain castes in Assam for whom a widow was not considered unchaste if she lived with a man after the death of her husband. Significantly, there was no charge of ‘unchastity’ in the original suit filed by Keri’s husband’s nephew. The claim to the property was based only on the provisions for forfeiture as in Act V of 1856. Section 2 of this Act (also known as the Hindu Widows’ Remarriage Act of 1856) had specifically stated that ‘all rights and interests which any widow may have in her deceased husband’s property by way of maintenance, or by inheritance to her husband or to his lineal successor … shall upon her re-marriage cease and determine as if she had then died’ (Act V of 1856 as cited in Carroll, 1989, p. 4).

Here we must turn briefly to the complicated question of the status of customary laws under a colonial legal system set up to administer personal laws in different regions of the country. The Ahom kingdom of Assam was annexed by the British after the Treaty of Yandaboo (1826) and subsequently placed under the Bengal Presidency. Its inclusion within British-occupied territories saw early attempts on the part of the colonial administration to establish a strong judicial authority based on Hindu shastric sanction (Bhattacharyya-Panda, 2007, p. 82). Earlier, under an initiative by Warren Hastings, Brahmin pundits had compiled a handbook of Hindu laws, extracted from various shastras (sacred scriptures). This compilation, known as Vivadarnavasetu, was translated into English by N. B. Halhed as A Code of Gentoo Laws (1776). Once annexed, Assam’s indigenous population, excluding Muslims and Christians, was categorised as ‘Hindus’ by the colonial administration and conveniently placed under the Dayabhaga school of Hindu law as codified in Halhed’s translation. Interestingly, during hearings for Keri Kolitani v. Moneeram Kolita, the question of applicability of the Dayabhaga law to indigenous Assamese communities was brought up by some judges of the Calcutta High Court, with Justice Jackson saying, during the full bench hearing, that it was regrettable that the important issue raised in court by this particular case did not appear to necessarily form part of the original contentions of the parties or of the munsif’s decision, there being no direct reference to the customary practices of the community involved. Justice Jackson also observed that as the parties belonged to ‘the blacksmith caste in Assam’, the munsif (as a native of Assam) judged in a way that allowed a widow to continue to enjoy her rights to her husband’s property, even after taking on a paramour, in consideration of the customs and practices of her community. He further observed that while adjudicating on matters relating to customary practices of indigenous communities, who could be unaware of the codified personal laws of the Hindu shastras, either as in Halhed’s Code (1776) or in Colebrooke’s Digest (1798), there were justified grounds for examining their customary laws in further detail. Jackson expressed surprise that the pundits called upon by the division bench for their opinions had ‘deposed rather to the law as it is found in the shastras, than to the observance of the present day and I do not understand that they pretend to any knowledge of the customs of Assam’. Had the ‘rules of caste and the condition of the tribe to which the litigants belong’ been raised fairly at the lower court, the judges of the High Court would not have been in ‘utter ignorance’ of the circumstances governing the case (BLR, Vol 13, 1874, p. 65).

The important point raised in Justice Jackson’s observation about the questionable practice of dispensing the Dayabhaga law, as applicable in Bengal, to all the newly acquired territories situated beyond Bengal’s Eastern borders was alluded to in later judgements of the Calcutta High Court. For instance, in Aiti Kochuni v. Aidew Kochuni, which came up before the Calcutta High Court in 1917 from an appellate decree of a sub-judge of Assam, the judges admitted that applying the Dayabhaga law to people or communities who practise a different set of customary laws may lead to ‘injustices in some cases’. The case in question involved two parties from the ‘aboriginal’ Koch community of Assam, and the issue in court was whether an ‘unchaste’ daughter is entitled to inherit the estate of her father under Dayabhaga law. Aiti Kochuni had eloped with Khedu Koch while her father was alive, and several years later, after the death of her father, she married Khedu. She laid claim to her father’s estate as his heiress after her father’s death. The subordinate judge from Assam stated that, though he was aware of the customary practices of the Koch community, he was compelled in this case to abide by Dayabhaga law because neither side had raised the plea of local custom in the case.

His decree against Aiti Kochuni’s claim observed:

It is a matter of common knowledge that many people of lower castes, such as Koches, etc., in Assam, contract unions with women without any marriage and get married afterwards, sometimes in their old age after their children become grown-up men, and no stigma attaches to the children from before the formal marriage provided there was a marriage afterwards. (All India Reporter [AIR], 1920, p. 237) ¹

When the appeal came up before the Calcutta High Court, the judge referred to the subordinate judge’s observation during his own dismissal of the appeal:

To apply to such people [from certain indigenous communities of Assam] the strict rules of Hindu law (and specially those of the Dayabhaga School, which are based upon the principle of spiritual benefit) in such matters, may lead to injustice in some cases. We think such questions should be decided with reference to local custom and usage, and it is to be regretted that the parties did not set up such customs or usage, although the existence of the ‘practice’ as a ‘matter of common knowledge’ is referred to by the Court below. As it is, we must decide the case according to the Dayabhaga law. (AIR, 1920, p. 239)

Despite such comments by the Calcutta High Court’s judges, the matter of the applicability of Dayabhaga law to Northeast India’s indigenous communities remained undecided in the colonial period. Judges decreed in favour of or against an appeal in cases involving customary practices according to their own discretion or understanding of Hindu personal law (Misra, 2007, p. xlviii). ² In an effort to cohere all the geographical regions included within the jurisdiction of the Calcutta High Court, the colonial judicial system sought to impose the Dayabhaga law of Bengali Hindus on all indigenous communities. Although the gradual initiation of these communities into the Brahmanical Hindu fold or Muslim faith had spanned centuries before the advent of colonial rule, the process of ‘Brahmanisation’ was probably accelerated by the imposition of the colonial legal structure on people whose traditional systems had already begun to erode under the impact of majoritarian religious forces. Lucy Carroll refers to some interesting legal cases involving the Koch and the Rajbansi tribes of Assam and Northern Bengal, where customary laws came into conflict with Dayabhaga law in matters concerning marriage, inheritance and adoption. One such case involved two Rajbansi women (Santala Bewa v. Badaswari Dasi). When it came up on appeal before the Calcutta High Court in 1923, the question of ‘chastity’, which had led to so much legal disputation in the Keri Kolitani case, was again raised. This time, the customary laws of the tribe were upheld by the highest court in deciding whether a widow who had been living with another man after the death of her husband forfeits the property she had inherited from her first husband. The decree went in favour of the widow because the definition of ‘chastity’ amongst the Rajbansis differed from what it meant for Hindus governed by Dayabhaga law. It was the judge’s opinion that the concept of widow remarriage, which had existed amongst the Rajbansis long before the promulgation of the Widows’ Remarriage Act of 1856, differed significantly from the concept of Hindu marriage because it was a marriage without any religious ceremony! In the customary dangua practice of the Rajbansis, a widow can accept a man as her husband without necessarily undergoing a formal religious ceremony. Thus, the controversy over forfeiture of property by a widow living a ‘notoriously unchaste life’ was ultimately put to rest by High Court decrees that took cognizance of proven customary practices (Carroll, 1989, pp. 15–18).

The contradictory legal opinions on the applicability of the newly codified personal laws of the Hindus, based on a few select texts preferred by the group of 11 Brahmin pundits whose opinions were sought by the committee set up by Warren Hastings, resulted in country-wide debate. On many occasions, the authority of alternate texts that had been ignored by the pundits was cited by legal experts of Southern and Western India (Agnes, 1999, p. 44; Nair, 1996, p. 25). Under the provisions of Hastings’ 1772 plan, in all civil matters concerning marriage, inheritance or caste, all so-called Hindus were brought under what was proclaimed as the laws of the shastras, and Muslims were brought under the ‘laws of the Koran’: ‘Hindu law expanded its authority across large areas of society which had not known it before or which for a very long period had possessed their own more localised and non-scriptural customs’ (Washbrook, 1981, p. 653). Certain ‘prescriptive, normative, or moralistic codes of conduct that performed wider social functions’ were integrated into the formal structure of law and administration of justice during the colonial period (Bhattacharyya-Panda, 2007, p. 251).

The apparent vagaries embedded in uncodified personal laws of communities in newly conquered regions, such as Assam, were often used by litigants to settle old scores and create disputes over small holdings. They would otherwise have been settled by mutual agreement, but were now fuelled by the extension of Hindu law into these areas. Thus, after British annexation, there was a spurt in litigations in Assam over such small properties, and the prolonged litigations often led to rural impoverishment. Significantly, most of these cases were related to a woman’s right to inherit landed property. As with Keri Kolitani and Aiti Kochuni, or in the Nearam Kachari v. Ardaram Kachari case (involving a sister’s right to inherit the land belonging to a deceased sister), the appellants were men who took advantage of the new colonial legal dispensation to challenge prevalent customary practices. The generally accepted principle for the colonial court was that if no specific customary rule existed, the judge could use his discretionary power to either accept or reject the laws of the suitor’s own community as long as the decision was in accordance with ‘justice, equity and good conscience’, a principle which was said to have been handed down from the time of the ‘great philosophic Jurists of Rome’(Cassels, 2010, p. 258). ³

The conflict between customary practices of communities and the interpretation of statutory laws promulgated by the British in India was evident in the several cases involving Hindu widows’ forfeiture of inheritance rights that came up before the High Courts of 19th-century Allahabad (now Prayagraj) and Bombay (Mumbai). In Har Saran Das v. Nandi, the Allahabad High Court decreed that when a particular caste’s customary practices which were in existence prior to the Widows’ Remarriage Act of 1856 did not prohibit widow marriage, a widow would not forfeit her interest in her deceased husband’s property upon remarriage (Har Saran Das v. Nandi, as cited in Carroll, 1989, p. 5). However, in 1896, the full bench of the Bombay High Court took the stand that the forfeiture clause of the 1856 Act applied to all Hindu widows, irrespective of whether the customary laws of their caste permitted widow remarriage prior to the enactment of the said Act (Vithu v. Govinda, as cited in Carroll, 1989, p. 11). Thus, as in the Keri Kolitani case, different interpretations were provided, according to convenience, by the British-Indian courts of what was termed as ‘Hindu law’. Several instances of such continued ‘colonial indecision’ have been discussed extensively by legal experts (Bhattacharyya-Panda, 2007; Wilson, 2008).

In addition to Hastings’ efforts towards codifying Hindu personal laws, Orientalist legal scholars made efforts in a similar direction, having observed the reigning confusion over the strict applicability of so-called shastric laws as codified in Halhed’s Code. When Oriental scholar Sir William Jones became a judge of the Supreme Court at Calcutta in 1783, he argued that

[I]f the existing laws of Indians were superseded by a new system of which they could have no knowledge, and which they must have considered as imposed on them by a spirit of rigor and intolerance, it would be ‘a violation of which they would have thought the most grievous oppression’. (Wilson, 2008, p. 79)

Jones suggested that people in Bengal be governed only by laws which they could recognise as those that had ruled their civil life in the past. With these ideas in view, the judge set to work on A Digest of Hindu Law which would bring into focus the difference between the ‘Gaudiya school centred around the Bengali town of Nabadwip and the Mithila tradition focussed on Tirhut in Northern Bihar’ (Wilson, 2008, p. 80). His initial purpose was to work with two pundits, one from each region, to identify their various customary laws. His understanding was that Bengal and Northern Bihar recognised the Dayabhaga and the Mitakshara texts respectively. But with the joining of Bengali pundit Jagannatha Tarkapancanana, the original project to codify Hindu laws changed into yet another compilation of Sanskrit Dharmashastra texts (Wilson, 2008, p. 80). Translating this digest after Jones’s death, H. T. Colebrooke had it printed as A Digest of Hindu Law (Calcutta, 1798). Unlike Halhed’s A Code of Gentoo Laws, Jones had intended his digest to be of practical use in deciding disputes, but as scholars have observed, it hardly served its purpose (Wilson, 2008, p. 83). It succeeded merely in recording yet another step in British efforts to comprehend customary laws prevalent in different regions of the subject country. It also demonstrated the Orientalists’ aim to end the indecisiveness of court practices and the prevailing anxiety of the legal administration when adjudicating on matters concerning personal law.

More than two centuries later, even after Hindu personal law has been amended several times to include greater gender justice, the question of applicability of customary laws has yet to be settled satisfactorily. Although certain customary practices of indigenous communities do favour women, some scholars point out that this is not the case with all customary laws. It has been suggested that a convincing test for the selection of beneficial customary laws be evolved, but ‘juristic opposition/confusion is to be anticipated in situations where an advantageous custom happens to contradict the accepted legal norms of modern family law’ (Agarwala & Ramanamma, 1994, pp. 249–269).

The Arguments and Significance of the Case

The significant issues raised by the Keri Kolitani case endangered the interests of the Hindu religious authority. It also put at risk the image of the colonial administration as a benevolent ruler dispensing equitable justice to each of its Indian subjects, including the newly converted Christians who could face forfeiting their inheritance rights as apostates. When the case came up before the court of the deputy commissioner of Sibsagar district on 1 June 1870, the decree of the munsif was reversed and the deputy commissioner gave the plaintiff Moneeram Kolita a decree for the whole property. He held that Moneeram had established his claim as heir and that the defendant, Keri, had forfeited by her unchaste behaviour her right to maintenance, which she would otherwise have had. The main difference between the judgements of the munsif and the deputy commissioner was that while the former’s was influenced by customary practices of the community to which both the plaintiff and the defendant belonged, the latter’s was based on the newly codified Anglo-Hindu law grounded in the Bengal school of Dayabhaga law. While the munsif held that the widow had not lost her right to the property she inherited from her husband at his death because she had not gone through a second marriage, the deputy commissioner held that the widow had lost her chastity by cohabiting with another man and hence forfeited her right to her deceased husband’s estate. The munsif stated as fact that the widow was cohabiting with another man without going through the ritual of marriage, and obviously did not consider her behaviour ‘unchaste’, which could have led to forfeiture under Act XXI of 1850.

When the case came up in appeal before a divisional bench of the Calcutta High Court on 2 June 1873, the bench held the same opinion as the deputy commissioner, but since this opinion was opposed to an earlier decision of the Calcutta High Court in the Srimati Matangani Debi v. Srimati Jaykali Debi case (BLR, Vol 5, n.d., p. 493; Cowell, 1871, p. 188), a reference was made by the judges to a full bench on 9 April 1873. In the Matangani Debi case, too,

[T]he issue was whether a Hindu widow had forfeited her right in her husband’s estate by reason of having, since his death, led an immoral and unchaste life. The Chief Justice in 1851 held that she had not; although before the Act of 1850 it was understood to be the law that if a Hindu widow in possession of land as heiress of her husband lived incontinently, the Hindu law disinherited her.

The full bench in the Keri Kolitani case, consisting of 10 judges (with two judges dissenting), held that ‘under the Hindu law administered in the Bengal school, a widow, who has once inherited the estate of her husband, is not liable to forfeit that estate by reason of her subsequent unchastity’ (BLR, Vol 13, 1874, p. 1). As stated earlier in this essay, during the prolonged sessions of arguments and counter-arguments offered by the eminent lawyers of the Calcutta High Court, the questions which were referred to for the decision of a full bench were: (a) ‘whether, under the Hindu law as administered in the Bengal school, a widow, who has once inherited the estate of her husband, is liable to forfeit that estate by reason of unchastity’ and (b) ‘whether the forfeiture, if any, is barred by Act XXI of 1850?’ (BLR, Vol 13, 1874, p. 2).

While trying to arrive at a satisfactory solution to the first question, Justice Mitter relied on the opinions of ‘some learned Pundits’ summoned to court, who have been listed as ‘Pundit Issur Chunder Vidyasagur, Pundit Mohesh Chunder Nyaruttun, officiating Principal of the Calcutta Sanskrit College, Pundit Bharut Chunder Shiromony, professor of Hindu law in the said institution, and Pundit Taranath Tarkabachusputee, professor of grammar and rhetoric in the same’. Ill health prevented Vidyasagar from attending court, but the others were unanimous in their decision, based on their reading of scriptural authority, in favour of forfeiture of the estate by the ‘unchaste’ widow. Justice Mitter’s opinion (that ‘the general spirit of the Hindu law’ is absolutely clear about a widow losing her right to inherit the property of her deceased husband if she loses her chastity) was based on the views expressed by Manu, Jajnavalkya, Vrihaspati, Narada, Paithinasi and other ancient rishis (sages), as compiled in Colebrooke’s Digest of Hindu Laws. The argument was based on the accepted scriptural injunction that a Hindu woman’s status is one of perpetual dependence on father, husband, son and other kinsmen and women of the family. ‘In no instance is the independence of a woman allowed,’ stated Justice Mitter categorically, quoting his sources (BLR, Vol 13, 1874, p. 3), and argued that as a Hindu widow’s estate is ‘one of a very peculiar character’, it can never be considered a life estate. Even when she inherits her deceased husband’s estate, ‘she is nothing more than a trustee for her life’, and she has no right to use her inherited estate in any way except for the ‘benefit’ of her deceased husband’s soul. As ‘half the body’ of her deceased husband, if the widow is no longer in a position to fulfil her duties towards her dead husband’s soul because of ‘unchastity’, ‘the trust property must be taken away from her as a matter of course’ (BLR, Vol 13, 1874, p. 11). Quoting extensively from Hindu shastras, the Justice opined that an ‘unchaste’ Hindu widow is not even entitled to maintenance from her marital family; she is liable to be expelled from the family house as well.

During the course of the argument, there were several interesting objections from experts in Hindu law. Mohini Mohun Roy, presenting his views in support of the appellant, raised the objection that if ‘unchastity’ was ‘considered as incapacitating the widow to perform religious rites, the same would apply to succession of a son whose right is also based on his ability to perform certain religious rites for the souls of his ancestors’ (BLR, Vol 13, 1874, p. 37). Roy directed his argument towards the forfeiture of an estate which has already been inherited, on the basis of subsequent loss of chastity. Justice Phear commented on the applicability of ‘primitive meanings’ inherent in the ancient texts, with the ‘exigencies of modern society’ calling for a change in the views of ‘primitive meanings of the venerable authorities of the Hindu lawgivers’. He argued that the main focus should be on what all the Hindu texts decree, that is that a childless widow who succeeds to her husband’s property represents it fully as an estate of inheritance, that she does not forfeit it on the subsequent occurrence of disqualification, and that in these two particulars she is in the same situation as a male heir (BLR, Vol 13, 1874, p. 63). The final opinion delivered by Chief Justice C. J. Couch was also in agreement with the view that ‘the estate, once inherited, is not forfeited simply by unchastity’ (BLR, Vol 13, 1874, p. 90). Justice Couch, conveying the views of the judges Macpherson, Pontifex and Ainslie, referred to Colebrooke’s translation of the Dayabhaga texts in which Catyayana declares chastity to be the condition of the widow taking her estate, but ‘there is no condition declared as to her keeping it’ (BLR, Vol 13, 1874, p. 81). Ainslie further commented that ‘the reasons for allowing a person to succeed to an estate are not necessarily the conditions upon which he is to hold it’. The judgement also referred to Parvatikom Dhondiram v. Bhikukom Dhondi, where the court had held that ‘if the inheritance be once vested in the widow, it is not, by Hindu law, liable to be divested, unless her subsequent incontinence be accompanied by loss of caste, unexpiated by penance, and unredeemed by atonement’ (BLR, Vol 13, 1874, p. 88). It may be mentioned here that during the course of arguing the Keri Kolitani case, loss of caste was raised several times. Justice Jackson observed that extensive changes had become visible in ‘public usages, manners and feelings’, which created a gap between Hindu law that is considered divine and the ‘existing facts’ (BLR, Vol 13, 1874, p. 76). Many of the usages had become obsolete, except the practice of ‘outcasting’, which, according to him, had retained its force in society. If the widow Keri had been made an outcast, thus depriving her of certain civil rights, it would have been more acceptable to ‘popular estimation’. Since this had not happened, she could not be penalised on that ground. This implication, though not stated clearly in the High Court judgement, was specifically mentioned later in the Privy Council judgement.

At least two of the British judges in this full bench hearing agreed with the orthodox Hindu opinion, which argued that since the wife is ‘half the body’ of her husband, a widow who is unfaithful to her dead husband would be unqualified to possess his estate if she became unchaste after inheriting it (BLR, Vol 13, 1874, p. 20). Thus, ‘the quaint legal fiction’ (Carroll, 1989, p. 9) of the half-his-body metaphor continued to produce contesting legal opinions until the process for the passage of the Hindu Code Bill began in the 1940s.

The Keri Kolitani case came up on appeal before the Privy Council on 28–29 November 1879 and 13 March 1880. The judgement was delivered by Sir B. Peacock after a detailed examination of the minority opinion of the three judges and the majority opinion of the other judges in the full bench of the Calcutta High Court. After a close analysis of the relevant portions of the Hindu texts which had been placed before the High Court, the Privy Council judge came to the conclusion that ‘the somewhat fanciful analogy’ (ILR, 1880, p. 780) of the widow’s estate as a ‘trusteeship’ did not deserve serious attention. But whether the Hindu widow forfeits her estate when she is no longer capable of performing the necessary religious ceremonies for her deceased husband occupied the serious attention of the judges. Even a son who becomes eligible to inherit his father’s property by the mere fact of being born, they observed, may be excluded from inheritance under certain circumstances, but once he inherits the property, he does not forfeit it unless he is ‘degraded from caste’. Referring to the views expressed by Justice Mitter and others of the Calcutta High Court, the Privy Council concluded that the Hindu law of the Dayabhaga school was silent on conditions required for a widow to forfeit an estate inherited by her prior to her becoming unchaste. So, upholding the majority opinion of the High Court, the Privy Council observed that

[I]t has not been established that the estate of a widow forms an exception to what appears to be the general rule of Hindu law, that an estate once vested by succession or inheritance, is not divested by any act or incapacity which, before succession, would have formed a ground for exclusion from inheritance. (ILR, 1880, p. 789)

Significantly, both the High Court and the Privy Council gave primary importance in this case to the question of forfeiture of property that had already been inherited rather than to the conditions under which a woman becomes ineligible to inherit property. The long discussions on the inferior status accorded to Hindu women in religious texts, the need to keep them under constant surveillance and to deprive them of any right to make independent decisions, did not seem to interest the British judges of the Privy Council. On the other hand, they specifically mentioned Chapter VIII, paragraph 3 of Dayabhaga, as translated by Colebrooke, which talks of ‘exclusion from inheritance’ (only a male who is a declared ‘outcast’ and ‘addicted to vice’ is excluded from inheritance of ancestral property; nowhere is there a mention of a wife, daughter or female heirs). The masculine gender used for the word ‘outcast’ in Dayabhaga therefore excluded all women heirs from the law of exclusion, according to the judges (ILR, 1880, p. 789). Their view led to the important judgement which rocked middle-class Hindu society for several decades: that the widow Keri was never degraded or deprived of caste, and hence the question of forfeiture of her inherited estate did not arise; and that there was a difference between ‘mere unchastity’ and ‘degradation’—even if a woman is considered unchaste because of her decision to cohabit with her paramour, she is not a declared outcast, which would degrade her (ILR, 1880, p. 792). The final words of the Privy Council judgement lay special emphasis on the condition of being degraded from caste in Hindu society:

The widow has never been degraded or deprived of caste. If she had been, the case might have been different, subject to the question as to the construction of Act XXI of 1850; for upon degradation from caste, before that Act, a Hindu, whether male or female, was considered as dead by the Hindu law, so much so that libations were directed to be offered to his manes as though he were naturally dead. (ILR, 1880, p. 792)

It is obvious from the court’s opinion that the colonial judiciary made every effort to keep Hindu society’s caste structure and caste values largely untouched in order to appease Brahmanical sentiments, which had been very organised and vocal during the passage of Act XXI of 1850 (Religious Disabilities Removal Act) and the Widow Remarriage Act 1856 (Cassels, 2010, p. 264). But in Matungini Gupta v. Ram Ruttan Roy, which involved the question of forfeiture of a deceased husband’s property on the widow’s conversion to another religion, the Brahmo Samaj sect, prior to her remarriage, the full bench of the Calcutta High Court decreed forfeiture under Act XV of 1856 (Carroll, 1989, p. 8). In this case, the majority opinion supporting forfeiture held that although Hindu law has no clear decree on the question of a widow’s forfeiture of her husband’s share of property upon her conversion and remarriage, it may be inferred from the assumption that a wife is ‘half the body’ of her husband according to Hindu law; accordingly, the widow must forfeit the estate on remarriage, Act XV indicating that forfeiture in such cases is ‘in accordance with the principles of Hindu law’ (Carroll, 1989, p. 8).

In both the Keri Kolitani and Matungani Gupta cases, forfeiture of property was the main issue for discussion and resolution, but because they both involved the inheritance rights of Hindu widows, the question of a woman’s chastity (that is, preserving her body as the faithful other half of her dead husband’s body) came to occupy the central focus of the arguments. The primary qualification set down in the Hindu shastras for a childless widow to inherit her husband’s estate was chastity. However, the main problem arose because the Dayabhaga school of law was silent on the question of forfeiture of the estate by widows upon remarriage and their loss of chastity thereby, or (as in Keri Kolitani) leading a ‘notoriously unchaste’ life with a man without going through the ritual of Hindu marriage. Under Act XV of 1856, a widow forfeits her deceased husband’s estate upon remarriage. Even if she remarries under the Special Marriage Act of 1872 after conversion to another religion, she forfeits her earlier husband’s estate, which she had inherited as a Hindu (as, for instance, in Matungani Gupta). In Keri’s case, the judiciary was unequivocal in its assertion that an estate once vested by succession or inheritance is not divested by any act which, before succession, would have formed a ground for exclusion from inheritance. In Matungani’s case, the forfeiture clause was upheld because there was a subsequent remarriage after the estate was inherited. In other words, the colonial version of Hindu law interpreted widow remarriage as valid ground for unchaste behaviour of a widow, and hence, forfeiture was upheld. But ‘mere unchastity’ without marriage was not enough to make a widow forfeit her inherited estate. Significantly, the second condition for forfeiture under Hindu law, which is loss of caste or degradation, did not come up for discussion in the Keri Kolitani case, possibly because the question of acquiring or losing caste by Hindu women would have required a debate on the actual caste status of a Hindu woman under colonial law.

After the promulgation of Act XXI of 1850 (Religious Disabilities Removal Act), it became difficult for the judiciary to uphold any decision in favour of forfeiture of property according to Hindu law unless it applied only to the question of loss of caste or degradation within the Hindu community. The Hindu Widows’ Remarriage Act did not involve forfeiture of property for apostates. It allowed forfeiture of all property inherited by a widow from her deceased husband because it was in accordance with Hindu religious laws. The Act only legitimised the second marriage of the widow and decreed that the widow who remarried would have the same right to property or any right to which she would otherwise be entitled (Carroll, 1989, p. 8) except her right to her dead husband’s estate which she had inherited prior to her second marriage. It is thus obvious that the forfeiture clause, which was later rejected in the Keri Kolitani case, was earlier upheld in Act XV in order to satisfy conservative Hindu opinion which had been vocal against the passage of the Act.

Colonial State and Hindu Orthodoxy

The question of forfeiture of inheritance necessitated close scrutiny by the colonial government, which faced widescale protests not only from Hindu orthodox religious voices but, equally strongly, from native Christian converts. Between 1832 and 1850, the state battled Hindu religious authority to enact various legislations that would safeguard all Indian citizens, especially the growing community of Christian converts, from being deprived of their right to inherit ancestral property as a penalty for violating religious laws. In a ‘memorial’ submitted by Raja Radhakanta Deb and 3,000 Hindus to Governor-General Dalhousie, the intention to promulgate Act XXI of 1850, which sought to bring about major changes in the Hindu law of inheritance, was challenged on the basis of a perceived threat to Hindu religious authority. It stated that since according to Hindu law, as recorded in the Dayabhaga texts, a son’s right of succession depends exclusively upon the right to present the funeral oblations to his father or kinsman, an apostate loses that right because, if he tries to perform those spiritual duties, it ‘would be a desecration of the rite’ (Cassels, 2010, p. 265). Finally, the state asserted its authority using the high moral ground of ‘just and right’ protection to all citizens. J. E. D. Bethune declared forcefully in his minute of 26 March 1850 that it was the ‘inherent and inalienable right of every Government to regulate the law of property’ and no class of people can appropriate that right to inflict penalties (Cassels, 2010, p. 269). This momentous act by the colonial authority, which was asserting its supreme authority, even in civil matters, shook the Hindu orthodox authority to its core. Memorials against this attempt to subvert the provisions of Bengal Regulation VII of 1832, which had apparently guaranteed all Hindu and Muslim subjects freedom to be governed by their own religious laws in matters pertaining to civil suits, were submitted by ‘the Inhabitants of Bengal, Behar and Orissa’ and ‘the Native Inhabitants of Madras’ (Cassels, 2010, p. 264). In them, the aggrieved petitioners lamented that the proposed Act would be ‘the first inroad upon the integrity of the Laws of which they have hitherto, since the Country has been under the protection and Government of Great Britain, felt secure’ (Cassels, 2010, p. 264). British officials, supporting the move of the colonial state to promulgate Act XXI of 1850, dismissed the claims of the Hindu memorialists that the Hindu law of inheritance was intrinsic to the Hindu religion. The colonial state asserted that laws of inheritance were to be considered a secular matter ‘subject only to regulation by the state’ (Cassels, 2010, p. 269). Lord Dalhousie gave his consent to the Bill which ensured the inheritance rights of all converts to Christianity, whose numbers, as claimed by the government, were gradually increasing in India after the setting up of institutions of Western learning, such as the Hindu College (established in 1817 in Calcutta). ⁴

Aftermath

The ‘Great Chastity Case’ of Keri Kolitani created ferment in the social order of 19th-century India because of the conflicting issues it raised regarding the question of a woman’s right to inherit property and the conditions under which she could forfeit those rights. This case, however, did not leave any perceptible mark on the Assamese intellectual world of the time, though the apparently ‘scandalous’ dimensions of several legal cases involving women found references in 19th-century Bengali literature (Sarkar, 2001, pp. 57–58).

Although the widow Keri Kolitani’s name features in the country’s legal history of the country as a litigant in a ‘leading case’, she disappeared without a trace from public memory in Assam. The case Keri Kolitani v. Moneeram Kolita, however, continues to attract the attention of social historians, who focus on changes in personal laws in India brought about by state legislation. Developments following the debates on the Hindu Code Bill and the series of Acts passed after 1947 (Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, Hindu Adoption and Maintenance Act, Dowry Prohibition Act, and Protection of Women from Domestic Violence Act) have considerably improved the legal position of women. In the context of these positive changes in personal law, it is worthwhile to re-examine the legal battle waged in colonial times which brought into focus issues concerning a woman’s right to inherit property and the conditions under which she forfeited that right, and the use of religious authority as a weapon to penalise apostates and ‘unchaste’ women. The colonial state’s subtle interference in the religious and personal laws of various communities to establish its own supreme authority in matters wherein religious authorities could have penalised citizens for transgressing their perceived religious laws resonates to this day. As it made its way from the lowest to the highest colonial courts, the Keri Kolitani case brought to light the status of the customary laws of various indigenous communities in different regions of the country as well as Hindu religious law and Western concepts of jurisprudence. The precarious balance between the customary practices, religious laws and the secular law of inheritance and forfeiture that it presented and which was sought to be maintained in the judgements of the colonial courts is still signified in the traces of orthodoxy observed in legal opinions today.