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The Hindu Law

from Japanese Fairy Tales





For every person in the world whose rule of civil conduct is based upon
the English system of jurisprudence there are two others to whom Hindu law
is both binding by political authority and the rule of conscience.

The student of law and world politics will note with interest two
impressive facts concerning Hindu jurisprudence in India. The first is
that until the accession of British rule in that country the Hindu law was
not law in the sense in which the term is understood by lawyers. The
second fact is that the acknowledged jurisconsults and commentators upon
the Hindu law of to-day are not Hindus, but British and Anglo-Indian
jurists.

Prof. Golapchandra Sarkar, in his admirable treatise, says: "The
administration of the Hindu law by the English judges shows forth in clear
light the administrative capacity, the indomitable energy, the scrupulous
care and the strong common sense of the English nation."

In treating of the marriage and divorce laws of over two hundred and
twenty-five millions of human beings who are Hindus by race and religion,
the first question to be answered is: What is Hindu law? Hindu law is the
whole body of rules regulating the life of a Hindu in relation to his
civil conduct and the performance of his religious duties grouped together
under the general name of Dharma Sastra, or religious ordinances.

The ultimate source of this wonderful system is the Veda, but the Hindu
also accepts an immemorial custom as transcendant law, contending that
such acceptance is approved in the sacred scripture and in the codes of
divine legislators.

In the Mahabharat we read: "Reasoning is not reliable; the Vedas differ
from one another; and there is no sage whose doctrine can be safely
accepted; the true rule of law is not easy to be known; the ways of
venerable persons are, therefore, the best to follow."

The Hindus have for centuries been governed by their own laws, which they
regard not as the edicts of a political sovereign, nor as the enactments
of a human legislature, but as the immutable commands of the Supreme Being
of the universe. With such reverence have these laws been regarded that no
Hindu king of whom we have any historical record ever dared to repeal,
alter or modify one of them. For the past century such progress as Hindu
law has made is due entirely to the action of the British courts in India.

As we called attention to in the chapter on Mohammedan law, there are four
distinct systems of jurisprudence in India, all in full operation and
effect. Two of these systems, the English law created by the British
Parliament and Anglo-Indian law created by the legislative councils, are
territorial in jurisdiction, while the others, namely, the Hindu law and
the Mohammedan law, are purely personal. That is to say, the Hindu and
Mohammedan systems of law apply respectively to Hindus and Mohammedans,
and to no one else.

At the beginning of British rule in India the government of the East India
Company gave the native inhabitants of the country the privilege of being
governed by their own laws in matters relating to marriage, inheritance
and religious usages.

In the regulations promulgated by Warren Hastings in 1772, and since in
the various civil acts and charters establishing the law courts, the rule
is expressed that in cases relating to marriage, inheritance, succession
and religious usages the Hindu law shall apply to the Hindus.

The Privy Council decided in the leading case of Abraham v. Abraham that
under the regulations and acts a Hindu is a man by both birth and religion
a Hindu.

In the case of Raj Bahadur v. Bishen Dayal, Mr. Justice Straight said: "If
we are correct in our view that the status of a Hindu or Mohammedan under
the first paragraph of Section 24, Act VI., of 1871, to have the Hindu law
made the 'rule of decision,' depends upon his being an orthodox believer
in the Hindu or Mohammedan religion, the mere circumstance that he may
call himself or be termed by others a Hindu or Mohammedan, as the case may
be, is not enough."

CASTE.--The idea of caste or class distinction so completely permeates
every religious and secular institution of India that one cannot
understand Hindu law without having in mind the principal features of this
social system.

The Vedas, upon which the whole structure of Hindu religion and ethics

professes to be based, give no countenance to the present regulations of
caste.

The Sanscrit word for caste is verna, meaning colour, and this leads us
to the true origin of caste distinctions. The verna, or colour, of the
light-complexioned Aryan invaders who entered India from the Northwest and
the verna of the dark-skinned aborigines whom they subjugated
established the first distinctions of caste.

There are four principal castes to-day among the Hindus, namely:

1. Brahmin, or priest caste.

2. Kshatriya, or warrior caste.

3. Vaisya, or merchant caste.

4. Sudra, or servant caste.

A fifth class, called Pariahs, are of no caste, and are practically
outside the law.

The first three upper classes or castes are also called "twice-born" men,
because they are supposed to be regenerated or "born in the Veda."

So, generally, are the distinctions of caste recognized that Pope Gregory
XV. found it advisable to publish a bull sanctioning caste regulations in
the Christian churches of India.

The Hindus attach great importance to the marriage. It is regarded by them
as one of the ten sankars, or sacraments, necessary for the regeneration
of men of the twice-born classes, and the only sacrament for women and
Sudras.

The Veda says: "A Brahmin immediately upon being born is produced a debtor
in three obligations: to the holy saints for the practice of religious
duties; to the gods for the performance of sacrifice; to his forefathers
for offspring."

Manu ordains that "after a man has read the Vedas in the form prescribed
by law, has legally begotten a son and has performed sacrifices to the
best of his power, he has paid his three debts and may then apply his
heart to eternal bliss."

The Hindus hold the marriage relation in such respect that the question of
the validity of a marriage is rarely submitted to the courts for judicial
determination.

The law of the Catholic Church treats marriage as a sacramental contract
dissoluble only by death, but the Hindu law goes further by declaring
against the remarriage of widows.

This rule of Hindu has been legislated upon by Act XV. of 1856, which
makes a Hindu widow eligible for a new marriage, but the marriage of a
widow has never been the practice among Hindus.

Mann says: "A widow who from a wish to bear children slights her deceased
husband by marrying again brings a disgrace on herself here below and
shall be excluded from the seat of her lord."

Polygamy, or plurality of wives, is permitted by the Hindu law, but is
rarely practiced.

Polyandry, or plurality of husbands, is contrary both to the Hindu law and
the provisions of the Indian Penal Code.

The three higher castes are permitted to intermarry with the caste next
below their own, the issue taking the lower caste or sometimes forming a
new caste.

In many ways the theoretical inferiority of the Sudra absolves him from
the restraints which the letter of the law lays on the three higher
castes.

AGE FOR MARRIAGE.--In the Hindu law want of age, though a disqualification
for other purposes, does not render a person incompetent to marry.

Ordinarily the lowest age is eight years for females, but a girl may be
married before that age if a suitable husband is procured for her. If none
of the persons who ought to give a girl in marriage do so before she
completes her eleventh year she may choose a husband for herself.

A girl must be given in marriage before she attains puberty. The reason
for marrying off a girl before she reaches the age of puberty is that the
marriage should be free from sexual desire.

PARENTAL CONSENT.--The Hindu law vests the girl absolutely in her parents
and guardians, by whom the contract of her marriage is made, and her
consent or absence of consent is not material. The consent of the parents
is required for the marriage of minors--that is, persons under fifteen
years of age. The parties authorized to give or withhold such consent are
the father, the paternal grandfather, the brother, a sakulya or kinsman
in succession.

The want of parental consent, or the consent of the person standing in
loco parentis, does not invalidate a marriage otherwise legally
contracted.

IMPEDIMENTS.--Disqualifications or impediments are absolute or relative. A
disqualification which renders a party incompetent to marry any person is
absolute, while one which simply renders a party incompetent to a
particular person is termed relative.

A woman with a husband living is absolutely disqualified from contracting
a new marriage.

Idiots and lunatics are disqualified for civil purposes only, although the
Hindu law permits a wife to desert or disobey an insane husband.

Deaf and dumb persons, or those afflicted with incurable or loathsome
diseases, are competent to marry, but cannot insist upon conjugal rights.
Among the three highest castes (the twice-born) impotency is not an
impediment to marriage, but for those of the lowest caste (Sudras) it is
a disqualification.

A twice-born husband who was impotent was for centuries permitted to
appoint a kinsman to beget issue by his wife, but this is now forbidden.

The female must be younger than her husband and of the same caste.

A girl whose elder sister is unmarried, or a man whose elder brother is
unmarried, is not eligible for marriage.

MARRIAGE CEREMONIES.--Ceremonies of some sort, religious or secular, are
requisite to the concluding of a valid marriage. The ceremony may be that
of "walking seven steps" or merely the exchange of a garland of flowers.
The question as to whether or not a marriage is ceremonially complete
depends largely upon what ceremonies are customary among the parties
concerned.

Consummation is not necessary to complete a marriage. In thousands of
cases girls under ten years of age have been married to males older than
themselves who have died before their wives were old enough for the
consummation of marriage. Such a situation has brought about the sad
plight of the tens of thousands of child widows in India. If a girl of
eight years of age is ceremoniously married to a man and immediately
thereafter returns to her father's home to await the time when she shall
be old enough to assume conjugal duties, she is from the moment the
ceremony of marriage is completed a married woman, and if her husband dies
the next day she is an eight-year-old widow whom no orthodox Hindu will
marry.

When the British first came to India it was a general practice for widows
to voluntarily submit to be burned alive with the corpses of their
deceased husbands. This savage practice was called a suttee, and by it
millions of child and adult widows were burned to death. By a provision of
the Indian Penal Code such a death is treated as a suicide, and all who
participate in the offence are holden for homicide. We are glad to record
that the British Government has so thoroughly enforced the law in this
respect that suttees have been entirely abandoned by the Hindus.

CONSANGUINITY AND AFFINITY.--Baudhayana says: "He who inadvertently
marries a girl sprung from the same original stock with himself must
support her as a mother."

Marriage between ascendants and descendants is unlawful.

Marriage is also prohibited between a twice-born man and a woman who is of
the same gotra, or primitive stock.

The woman must not be the daughter of one who is of the same gotra with
the bridegroom's father or maternal grandfather. Neither must she be a
sapinda of the bridegroom's father or maternal grandfather. Sapinda in
the Hindu law means descended from ancestors within the sixth degree. That
is, from persons in the ascending line within the seventh degree from the
intending husband. The sapinda relationship ceases after the fifth and
seventh degrees from the father and mother respectively.

A Sudra has no gotra of his own.

DIVORCE.--Divorce in the ordinary sense is unknown to the Hindu law. The
Hindus contend that even death does not dissolve the bond of marriage.

The single case in which a dissolution of a Hindu marriage can be granted
by a court of law is under Act XXI. of 1860, which was enacted to meet the
complications which arise when one of the spouses becomes a Christian. If
the convert, after deliberation for a prescribed time, refuses to cohabit
further with the other spouse, the court may upon petition declare the
marriage to be dissolved, and either party is free to marry again.

There are some low castes in the Bombay Presidency, in Assam and
elsewhere, among whom the practice of irregular divorce and remarriage of
the parties prevails. The causes for divorce are mutual consent of the
parties and ill-treatment. These divorces, although permitted by custom,
are not recognized by the courts.

RESTITUTION OF CONJUGAL RIGHTS.--A Hindu husband or wife can maintain a
lawsuit to obtain a judicial separation against a deserting spouse for
restitution of conjugal rights, but a Hindu convert to Christianity cannot
obtain such a decree if his wife remains a Hindu.





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