Landmark 19th century Calcutta High Court case of an ‘Unchaste Widow’ and her rights

The state of Indian widows during colonial times was pathetic. They were often forced to commit ‘sati’ immediately after their husband's death. They were strictly prohibited from participating in any social or religious ceremonies and considered ominous. They were barred from eating with other family members and had to survive on frugal meals or remain in empty stomachs. They were often ill-treated and forced to do all menial household jobs. Times have changed but beneath the veneer of an emancipated society, remnants of the Dark Age often peer and we realize, deep inside, not much has changed for the women of India and the path to actual liberation is still a long way ahead.  

This is a particular case involving a woman and property rights, to demonstrate how a legal system that was ostensibly dedicated to preserving ‘native customs and usage’ in actual practice subverted it. In the process, a construction of gender emerged that was at variance with sections of popular sentiment. This incident occurred in April 1873.  One particular case in the Calcutta High Court had shaken the very base of the city’s moral guardians. The case demonstrates very clearly how women were at the intersections of contested space in a colonial situation of domination and subordination. The case under discussion shows clearly how for women, sexuality was intrinsically linked to property rights.

The Case of the ‘Unchaste widow Kery Kolitani versus Moniram Kolita,’ as it was called, occurred in colonial Bengal in the second half of the 19th century. It originated at the Munsiff Court at Sibsagar in Assam, the lowest rung of the legal ladder, and eventually went all the way to the Privy Council. The case centred on Kery Kolitani, a childless Hindu widow, who after the death of her husband, Gendela, inherited his estate in pursuance of recognized tenets of Hindu law. She subsequently took a partner and a child was born of the relationship. The matter entered the realm of the legal world when Moniram Kolita, her husband's cousin, who was residing with her husband's father, sued for forfeiture on the grounds of "unchastity", in the Munsiff Court at Sibsagar.

The case was not the first of its kind but was very important because it became a watershed judgment in all subsequent cases involving unchastity in a Hindu widow. Till then with little exception, the decisions went against the widow. In legal parlance it came to be referred to as the "Unchastity Case”.

The appeal was admitted in the Calcutta High Court on account of the importance of the questions submitted for determination, and the great interest which the Hindu community took in the case. The case came in the first instance upon special appeal before a Division Bench, consisting of Mr. Justice Bayley and Mr. Justice Dwarkanath Mitter, who were of the opinion that the defendant had, by reason of unchastity, forfeited her right in her husband's property; but in consequence of a contrary ruling of the High Court, referred the two questions to a Full Bench.

The Full Bench consisted of the Chief Justice and nine other Judges, and the majority held that the widow, having once inherited the estate, did not forfeit it by reason of her subsequent unchastity. Three of the Judges however, viz., Mr. Justice Kemp, Mr. Justice Glover, and Mr. Justice Dwarkanath Mitter, dessented from the opinions expressed by the majority of the Court. 

‘We think it scarcely necessary to remark that the estate of a widow under the Hindu law is one of a very peculiar character. To compare it with a life-estate, or with any other estate known to the English law, would be to misunderstand its nature completely....Indeed, according to the true theory of the Hindu law, she is nothing more than a trustee for her life for the soul of her deceased husband, if we may use the expression.’ (Justice Dwarkanath Mitter, Kery Kolitany vs. Moniram Kolita)

It was not easy to reach a decision despite the majority of judges giving their ruling in favour of the widow.  A number of wise pundits who were experts on ancient Hindu laws and Shastras were summoned to the court and their opinion was sought in the case. Those who were requested to opine included such stalwarts as Maheshchandra Nyayratna, Bharatchandra Shiromani and Pundit Taranath Tarkabachaspati. Iswarchandra Viyasagar was also invited to express his opinion but he could not make it to the court owing to ill health. The other pundits’ opinion obviously went against the widow’s inheritance of her husband’s property. They quoted extensively from ancient texts like ‘Jimutvahan, Kattyayan’ and ‘Daibhaga’ where a widow’s duty was specified. A widow was given the right to perform certain rituals for her deceased husband and in lieu she would be provided with a frugal meal to continue her services towards her departed husband. She had no right to enjoy any worldly pleasures or take in a partner in the bed she had shared with her deceased husband.   

This was a very tricky situation for the British judges. On one hand, they did not want to get involved in unnecessary friction with the natives and on the other hand, they regarded it as their duty to uplift the natives from their backward and archaic state. The entire city was rife with discussion about how women’s liberty was being encouraged by the Brits leading to social degradation and total disintegration.  However, in the end the decision went in favour of Kery Kolitani and she won the case, thanks to her lawyer Mohinimohan Roy. At a time when the  pundits were busy formulating their debate to prove how Kery had transgressed the tenets of Hindu laws and had proved that she was a ‘fallen woman,’ Mohinimohan Roy tackled the issue from another point and proved that in no books of law  or ancient Hindu Shastras say that if a property has already been given to a widow it is her right to enjoy the property and nobody can  take back from her possession or right. However, lawyers of both the plaintiff and defendant sides agreed on one count – that Kery Kolitani was an “Unchaste widow,” and the derogatory term was branded on her.

Times have changed but not much has changed in the patriarchal society and women are still not given their due and they have to fight at every step to seize and fight for their rights.