According to Mitakshara on Yajnavalkya, i, 53, ‘Gotra is that which is known from tradition handed down in the family’. The Baudhayana Srauta says:-
(Visvamitra, Jamadagni, Bharadvaja, Gautam, Aur, Vasistha and Kashyapa are the seven sages and Agastya is the eighth; the progeny of these eight sages is declared to be gotra).
It appears that these eight were supposed to be the male founders and the general conception about gotra thus is that it denotes all persons who trace descent in an unbroken male line from a common male ancestor. According to Golapchandra Sarkar, Shastri, Gotra of a person is the name of the sage from whom he or his agnate is supposed to have descended in the line.
Regarding the ‘gotra’ of a woman on marriage P. V. Kane in the History of Dharmasastra says at pages 466-467:-
“There is a great deal of discussion in the Smritis and Nibandhas on the gotra of a woman. Asv, gr. S. I. 8. 12 is interpreted by some as laying down that husband and wife become of one gotra one year after marriage Laghu Harita appears to refer to this and also proposes an option that she takes up the husband’s gotra immediately after marriage. Yama 86 and Likhita 25 say that after marriage on the 4th night a bride becomes one with her husband as to gotra, pind and asauca, while Yama 78 and Likhita 26 state that she loses her father’s gotra on taking the seventh step. The Mit. on Yaj I. 254 has a long note on this subject, states that there are two views and finally reaches the conclusion that a woman retains her father’s gotra even after marriage for pindadana, if she was a puthika or was married in the asura and the following forms, but if she was married in the brahma and other approved forms, there was an option viz, pinda may be offered to one’s mother by one’s father’s gotra or by her father’s gotra according to family usage. Vide also Apararka pp. 432, 542, Sm C. I. p. 69.”
Jamna therefore on her marriage with Kodusingh acquired her husband’s gotra.
Similary, ‘Pinda’ has several meanings but so far as the Hindu Law is concerned, it has been used in two senses; (a) a relation connected with the same body and (b) a relation connected through funeral oblations of food. In the Mitakshara, however, it is used in the first sense viz meaning one of the same body i.e. a blood relation. Literally, it would thus include all blood relations howsoever distant but the stages have curtailed their meaning by technical limitation and when used without qualification it signifies agnatic relations only i. e. blood relations of the same Gotra ” ” being excluded from this category as these are classed as ‘Bandhus.’ According to Mitakshara, ‘Sapinda’ relationship arises from connection with parts of the body so that a son’s Sapinda relationship with the father arises by reason of connection with the parts of the father’s body. As regards the wives, Mitakshara says that they become Sapindas of their husbands by reason of their forming one body with those of their husbands:
“similarly (arises the Sapinda relationship) of the husband with the (Patni) lawfully wedded wise; by reason of (they together) forming one body, (i e. one person hence the wife is called half the body of the husband); similarly also (arises the Sapind relationship) of the wives of brothers (with each other), by reason of (the wives forming one body reciprocally with those (i.e. their husbands) formed from one body (of their father); thus wherever the term Sapinda is used, there directly or mediately connection with parts of one body is to be understood.”
(Gopalchandra Sarkar, Sastri’s Hindu Law, sixth Edition, pages 68-79).
The Judicial Committee of the Privy Council in Lallubhai Bapubhai vs. Gassibai I. L. R. 5 Bom. 110 at p. 118 speaking on this topic said:
“It is not disputed that on her marriage the wife enters the gotra of her husband, and it can scarcely be doubted that in some sense she becomes a Sapinda of his family. It is not necessary to cite authorities on this point. But a statement of the doctrine in a note by Mr. Borradaile to his reports may be referred to. He says; ‘Because a woman on her marriage enters the gotra of her husband, so respondents, being sagotra of Pitambar, are sagotras of his wife also.’ (1 Bom. 70. n. 2)”
and which shows that she (Jamna) became a ‘Sapinda’ of her husband in some sense only and not in its fullest sense by which probably was meant Sapindaship arising out of consanguinity.
Kane in the History of Dharmasastra at page 614 says:-
“One question raised by Dr. Banerjee is: What is to be regarded as the gotra of a widow when she is to be remarried (is it to be her father’s gotra or of the first husband’s ?). There are hardly any indications in the ancient Smritis or commentaries on this point. V. svarupa commenting on Yaj. I. 63 (on the word ‘Kanyaprada’) observed that according to so e the father gives away the bride even if she is not a virgin So it appears that the father’s gotra should be looked to in the remarriage of a widow. Vidyasagar, whom Dr. Banerjee follows, held the same opinion.
Dr. Banerjee in ‘The Hindu Law of Marriage and Stridhana’, 5th Edition, pp. 309-310, says:-
“…one of these rules of selection requires that the parties to marriage should be of different gotras; but what is to be regarded as the gotra of a widow the gotra of her father, in which she was born, or that of her deceased husband, to which she has been transferred by marriage ? Vidyasagar maintains (Marriage of Hindu Widows, pp. 165-172) that her father’s gotra is to he deemed the gotra of a widow for the purposes of her remarriage; and, considering that her father or some other paternal relation is still her guardian in marriage. I think that view is in accordance with the intention of the Act.”
In the absence of any direct shastric authority contrary to the aforesaid opinion of Vidyasagar, Banerjee and Kane based on the text dealing with the right of a father to give his daughter in marriage, I am also of opinion that for the purpose of her remarriage, the widow should be taken to be of the gotra of her father. It has to be remembered that the gotra of her husband was acquired by her constructively on her marriage with him. If the marriage was to be an indissoluble tie. the constructive relationship or the relationship by affinity as it is sometimes called still continues to operate for the rest of the natural life of the widow because qua widow the fiction that the husband is alive in her would operate. But if for some reason, what was under the orthodox Hindu law an indissoluble tie is made a dissoluble union. I see no reason to make the fiction or constructive relationship continue to operate when the necessity for it has ceased. It may be that as long as she continues a widow, the fiction would operate and she would be a Sagotra of her husband by affinity but for the purpose of her remarriage, the fiction that the widow represented her husband’s half, would cease. A fiction that came into existence by a marriage would disappear for her remarriage and as the father has been given the right to marry his ‘non-virgin daughter’ which expression may well embrace the case of a widow, it seems quite logical to assume that the widow for her remarriage reverted to the gotra of her father. She marries as the daughter of her father and not as a wife of her husband.
This difficulty is, however, of no practical importance now because of section 29 (1) of the Hindu Marriage Act, 1955, which inter alia provides that no marriage solemnized between Hindus before the commencement of the Act, which is otherwise valid, shall be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra.
Now I shall consider the question of her Sapinda relationship. Applying the same reasoning for the determination of Sapinda relationship for the remarriage of a widow, which Sapinda relationship constructively arose due to the first marriage as in the case of Sagotra relationship, I see no reason why Jamna who is not taken to be of her husband’s ‘ ‘ for the purpose of her remarriage should continue to be counted or classed as her husband’s ‘ ‘ for the purpose of first place by reversion to her father’s ‘gotra’ for her remarriage she would become ‘ ‘ to Kanhaisingh and consequently taken out of the prohibited degrees. Secondly, if she remarries as the non-virgin daughter ( ) of her father and because of it relinquishes her husband’s ‘Gotra’ there is no reason why she should yet continue to be his ‘ ‘. Thirdly, she was not a direct or consanguinuous ‘Sapinda’ but a ‘Sapinda’ due to marriage when according to marriage sacrament (Sanskar) she became united to her husband ‘bones with bones, flesh with flesh and skin with skin’. Now if this indissoluble tie, which would have united them for ever, for a widow is to be artificially snapped, there was no reason to keep the fiction alive. The fiction operated as long as she was his wife or his widow i. e, till she wanted her marriage tie to subsist. But the moment she came under her father’s protection for her remarriage or left her late husband’s protection to get herself remarried, her ‘ ‘ relationship like her ‘ ‘ relationship with her late husband came to an end. Fourthly, the text which made her, her husband’s ‘ ‘ expressly said that she became his ‘ ‘ by reason of his fictionally forming ‘one body’ with him. This fiction continued even after her husband’s death because fictionally her husband was alive in her. But this fiction could not continue once the widow decided to get herself remarried Mayne’s Treatise on Hindu Law and Usage, 11th Edition, dealing with the topic therefore rightly states at p, 160:-
“The question has arisen whether a Hindu widow can validly re-marry a person belonging to her father’s gotra. The Allahabad High Court has held that she can, on the ground that she retains her husband’s gotra. This appears to be an error. According to the relevant text of Yajnavalkya, the bride must not be descended from one whose gotra and pravara are the same as the bridegroom’s The Sanskrit expression makes it conclusive that it is the gotra of a woman’s birth that counts in marriage. When a woman enters into her husband’s gotra on her marriage, the gotra consanguinity is constructive and not physical. She retains the husband’s gotra only in her character as ‘wife’ during her widowhood, and she cannot retain it for purposes of remarriage. When she is given in marriage, the formula requires that she should be given as the daughter of say, Devadatta, belonging to Bharadwaja gotra. The legislature has expressly recognised that a minor widow reverts to her father’s family for purposes of guardianship in remarriage. For the same reason, she could, under the ancient Hindu law, as she can now, where there is a custom, marry her husband’s brother; it is also the explanation for the Ni yoga, for a husband’s brother or agnate being authorised to raise up the issue.
Accordingly, a Hindu widow can marry a person belonging to her husband’s gotra. Similarly, the prohibited degrees applicable to the case of a remarrying widow are the prohibited degrees based on her sapinda relation in the family of her birth and not those applicable to a girl born in her husband’s family.”
In my opinion, this passage summarizes the law correctly. The proposition to the contrary laid down in Radha Nath Mukerjee vs. Shaktipada Mukerjee I. L. R. 58. All. 1053 is in try opinion not correct.
Source : REWA Vs. GALHAR SINGH (1961) AIR(MP) 164 : (1960) ILR(MP) 490 : (1961) JabLJ 204 : (1960) MPLJ 1389
