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.
17. 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.
Radha Nath Mukerji and Others Vs. Shaktipado Mukerji and Others, AIR 1936 All 624
