The Hindu Law

: 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.