The Hindu law of marriage and stridhan

MARRIAGE AND STRIDHAN

Source page 1

THE HINDU LAW OF MARRIAGE AND STRIDHAN Siy)^OOROODASS)BANERJEE, M.A., D.L., TAGOBE LAW PROFESSOR. CALCUTTA: THACKER, SPIlSrK, AND CO., Publisfjers to tjjt Calcutta SSniijersttg.

TABLE OF CONTEIfTS.

Source page 2

Remarks on Ilindu law generally — What is Hindu law — Rules of civil conduct not distinguished from religious ordinances — The Dharma Sastra and its three divisions — Nature of the authority on which Hindu law was origin- ally based — The nature of the Smritu — Constitution of Hindu courts — Growth of Hindu law — Different schools of Hindu law — Sources of the Hindu law — Original authorities — Custom — Judicial decisions — "Who arc governed by the Hindu law — How far Hindu law applies to persons other than Hindus — The institution of Marriage — Primitive notions regarding the relation of the sexes — Origin of the institution of marriage — Different forms of the conjugal relation — Polyandry — Polygamy — Monogamy — Marriage by capture — Marriage in Hindu law a sacrament — Different forms of marriage in Hindu society — Scantiness of case-law on the subject of marriage — Stridhan — Plan of the present course. ...... Questions for consideration — Who are incompetent to marry — Minors — Idiots and lunatics— The deaf and dumb, and persons incurably diseased — Impo- tent persons — One having a wife living — Polygamy — One whose elder bro- ther is unmarried — Who are unfit to be taken in marriage — Females how far viewed as parties to marriage — Minors —Marriageable age for a female — Guardianship in marriage— Betrothed girl — One whose husband is living — Widows — Girls with visible or other minor defects — One whose elder sister is unmarried — Woman of the same gotra — Girls related within the prohibit- ed degrees— Prohibited degrees in different systems compared—Daughter of one's spiritual guide or pupil — Girl bearing ones mother's name— Girl older in age — Girl belonging to a different caste — Daughters of illegitimate persons— Effect of disqualification on marriage already completed . . Forms of Marriage and Formalities requisite for a valid Marriage. Different forms of marriage in Hindu law — Brahma— Baiva—Arsha — Praja- jfatya — Asura—Gandharha — Baksha,<!a--Paisacha—Mode of con tracing mar- riage—Betrothment— Its legal effects— Specific performance of contract of

vi TABLE OF CONTENTS.

Source page 3

Page betrothal— Agreements iu restraint of marriage — Marriage brokerage con- tracts— Ceremonies attending marriage — Necessity of their observance — Time for celebration of marriage — Consummation— Questions of validity of marriage how far cognizable in the Courts . . , . ,80 LECTURE IV. Scope of the present Lecture — Nature of the marriage contract — Nature of the marriage contract in the Hindu law — Rights of the husband and the wife over the person of each other — Custody of an infant wife — Restraint of wife's liberty — Correction of her person — Remedy of the husband against infringement of marital rights — Restitution of conjugal rights—Cases in which restitution of conjugal rights is not allowed — Effect of change of re- ligion on the claim for restitution of conjugal rights— Act XXI of 1866 — Adultery — Effects of marriage on personal capacity — Remarriage — Super- session— Present on supersession — Remarriage of a convert to Christianity relapsing to Hinduism — Man and wife one person in Hindu law only for religious purposes — Wife may contract — She may sue and be sued — She is not exempt from arrest in execution of civil process — Husband and wife competent witnesses for or against each other — Effects of marriage on the property of the husband and of the wife — Wife entitled to a share on par- tition— Wife entitled to maintenance — From whom — Maintenance when allowed to a wife living apart — Maintenance when forfeited — Rate of main- tenance— Arrears of maintenance — Recovery of maintenance under the Code of Criminal Procedure — Maintenance of concubines — Husband and wife how far bound by each other's contracts — Bombay Act VII of 1866 — Husband or wife entitled to compensation under Act XIII of 1855 — Effects of marriage on offspring — Legitimacy — Effect of marriage in a different caste on legiti- macy—Presumption oflegitimacy — Bastard's right to inherit — Maintenance of children — Right to give or take a son in adoption — Paternal power under the Hindu law — Maintenance of parents — Rules for women whose husbands are away — Appointment of a wife to raise up offspring . . .110 LECTURE V. Dissolution of Marriage— Widowhood. Duration of the conjugal relation — Divorce — Its different forms— Its effects — Divorce when allowable— Grounds of divorce in different systems of law — Divorce in the ordinary sense unknown to the Hindu law— Divorce allowed by custom in some cases — Grounds of such divorce — Distinction between divorce and dissolution of marriage in Hindu law — and between desertion and supersession — Judicial separation — Grounds which justify supersession — I

TABLE OF CONTENTS. Vll

Source page 4

Grounds which justify desertion of a wife — Grounds which justify deser- tion of the husband — Change of religion a ground for desertion— Act XXI of 1866 — Position of the wife who deserts, or is deserted by, her husband — Position of the woman whose marriage is void ab initio — Widowhood — Duties of the widow— /Stfii — Origin of the practice — Supposed Vaidik author- ity for it — Duties of a widow surviving her husband —Rights of the widow — Maintenance — Amount of maintenance — Widow's maintenance how far a charge on her husband's estate— Heir not liable for widow's contracts for necessary supplies — Widow entitled to maintenance though not living in her husband's house — Widow how far entitled to maintenance from relations other than her husband's heirs — Right to maintenance not saleable — Main- tenance forfeited for unchastity — Suits for maintenance — Widow entitled to reside in the family dwelling-house — She is entitled to a share on parti- tion— Widow entitled to inherit in certain cases— But she takes a qualified estate— Succession of several widows — Perpetual widowhood — Act XV of 1856 . . . . . . . . . .177 LECTURE VI. Certain customary and statutory Forms of Marriage. Scope of the present Lecture — Conditions requisite for validity of custom — It must be ancient — continuous — and certain — It must not be immoral, nor opposed to the general spirit of the law — Burden of proof where custom is pleaded — Forms of marriage according to family usages — Custom in the Tipperah Raj — Custom among Uriya Chiefs— Forms of marriage according to local, tribal, and caste customs — Customs of Bengal — Tribes of Assam — The Koch — The Santals — Tribes of Chota-Nagpore — Customs of the North- West and the Punjab — Customs of the Bombay Presidency — Parties to mar- riage— Betrothment — Divorce — Remarriage— Customs of Southern India — Prohibited degrees — Different forms of marriage— Malabar law — Canarese law — Divorce and remarriage — Forms of marriage according to sectarian customs — Vaishnavas — Gosavis — Buddhists — Jainas — Sikhs — Brahmos — Re- marriage ofwidows — Act XV of 1856 — Remarks on its provisions — Act III of 1872 . . . . . . . . . .227 LECTURE VII. Questions for consideration — Great diversity of doctrine on the subject — Different descriptions of stridhatb according to the sages — Manu — Narada — Vishnu — Katyayana — Apastamba — Vyasa — Devala — Yajnavalkya — Remarks on the preceding texts — Definition and classification of stridhan according to the commentators — Benares school— Mitakshara — Viramitrodaya — Bombay

Viii TABLE OF CONTKNTS.

Source page 5

Page, school— Vyavahara Mayiikha— Dravida school— Parasara Madhavya— Smriti Chandrika— Mithila school— Vivada Chintamani — Bengal school — Daya- bhaga— Dayatattawa— Dayakrama Sangraha— Does property inherited by a woman become her stridhan .^—Bengal school— Other schools— TAaAioor Bayliee v. Rai Balack Ram—Bhvyivandeen Doohey v. Myna Bace — Deci- sions of Indian Courts — Bengal — Chotay Lull v. Chunnoo Ball — Madras — Bombay — Share on partition — Summary of the law — Gift — Purchase— In- heritance— Partition —Burden of proof where property is alleged to be stridhan . . . • . . v . . . . Rights of a Woman over her Stridhan. Proprietary rights of women under the Hindu law — Restrictions on a woman's rights over her stridhan depend on her status and on the nature of the property — Restrictions depending on the status of the woman — Maiden- hood— Coverture — Husband's rights over wife's stridhan — Widowhood — Restrictions depending on the nature of the property — Gifts — from the hus- band— from strangers — Property acquired by personal exertion or by pur- chase— Property acquired by inheritance — Share on partition — Stridhan promised by the husband— Rights of an unchaste woman over her stridhan — Stridhan compared with woman's property under other systems — Roman law — Bos — French law — Married Woman's Property Acts — Sir H.

TABLE OF CONTENTS. IX

Source page 6

Succession to Stridhan according to the Maharashtra, Dravida, and mithila schools. The Maharashtra school — Comparative weight of authority of the Mitakshara and the Mayukha — Succession of children — Four different cases of this — First, as regards the anwadheya and the husband's gifts — Second, as regards the yautulia— Third, as regards other kinds of stindhan technically so called — Fourth, as regards woman's property other than stridhan technically so called — Heirs to a childless woman — As regards her stridhan proper — Hus- band and parents — Other relations — On some unsettled questions concerning them — Are the husband's samanodakas entitled to inherit a woman's prop- erty— Whetiier paternal kinsmen succeed on failure of husband's relations — Order of succession to woman's property other than stridhan proper — Wealth given by kindred — Snlka — Succession to the property of a maiden — Devolu- tion ofstridhan according to the Dravida school — Parasara Madhavya — Smriti Chandrika — Succession of children — Succession to the stridhan of a childless woman— The snlka— SncGession to the property of dancing- women — Succes- sion to stHdhan according to the Mithila school — Succession of descendants — Other heirs — Woman's fee — Succession to a maiden's property — Kritrlma Bon . . . ........ SirccESsioN to Stridhan according to the Bengal School. Succession to stridhan according to the Bengal school — Succession of children and their descendants — Ayautnka stridhan — Sons and daughters — Barren and widowed daughters — Yantuka stridhan — Property given by the father — Adopted son — Daughter's adopted son — Grandsons, whether by sons or daughters, take per stirpes — Succession of the group of heirs consisting of the husband, the brother, and the parents — Heirs after the husband, the brother, and the parents — The group of heirs according to Brihaspati's text — The sapindas, sakulyas, and samarwdakas — Paternal kinsmen — The Crown — Heirs to immoveable property given by the husband — Heirs to the property of a maiden ......... Succession to Woman's Property other than her Stridhan. Succession to womaji's property other than her stridhan — First, succession to inherited property — According to the Benares school — According to the Maharashtra school — The Mayukha— According to the Bengal school — According to the Dravida and Mithila schools — Secondly, succession to prop- erty acquired otherwise than by inheritance and not coming under the technical definition of stridhan — According to the Mitakshara — According to the Mayukha— According to the Bengal, the Dravida, and the Mithila schools — Share on Partition— Property acquired by gift from strangers or by labor and skill— during widowhood and maidenhood— during coverture .

TABLE OF CASES CITED.

Source page 7

Abraham ..... , 17, 20, 193 Adhiranee Narain Coomary v. Shona Malee Pat Mahadai 206, 208 Akorah Sooth v. Sheolal Mulookchund 91,243 Ayyavu Muppanar v. Niladatchi Ammal 168, 367, 368 Babu Goluck Chunder Bose r. Ranee Ohilla Dayee 204, 205 Baee Rulyat and others o. Bhika Kallianji . , , 42, 127, 192 Baku Bai v.

74, 166, 319

Source page 8

Brody 74, 166, 319 168 Chuturya Run Murdun Syn v. Comulmoney Dassee v Eammanath Bysack . Venkataswara Yettia 166, Daby Churn Mitter and others v. Mallapudi Rayudu 330 167 >Datti Parisi Nayudu v. Kylas Chunder Pal Chowdhry Deochund Natha v. Umbaram Lala , 225 , Doe dem Baugbutty Raur v.

TABLE OF CASES CITED.

Source page 9

Himnaiith Bose, In the matter of ... . . 154, 195, 215 Hoymobutty Debia Chowdhrain v. Ilata Narayanan Nambudiri Inderun Valungypooly Taver v. Ramaswamy Pandia Talaver 107, 169 In re the Wife of P. 130 lyagaru Soobaroyadoo v. lyagaru Sashama . Ganendro Mohun Tagore Judoobunsee Koer v.

XIV TABLE OF CASES CITED.

Source page 10

Dowlut Butee . . . . . .153 Lalla Mohabeer Pershad v. Raj Coomar Singh . . . . . .149 Lall Nath Misser v. Sheoburn Pandey . . . . . .121 Lallubhai v. 233, 234 Maharajah Govindnath Ray i\ Gulal Chand ...... 21651 Maharanee Ram Bunsee Koonwaree v. Maharanee Soobh Koonwaree 140 Dabee Maharanee Udhi Ranee Narain Coomaree v.

Ootum Chunder Bhattacbarjee v. Obhoy Cburn Misser . 233

Source page 11

Eakhal Grain 77,163,167 Narasammal v. Laving Bharthi 186, 244, 256 Nathubhai Bhailal v. Javher Raiji 139, 159 Navalram Atmaram v. Lukhee Narain Chuckerbutty Ootum Chunder Bhattacbarjee v. Puli Telaver 74, 167 ' 377 Parvati v. Venkatappadu 313, 339, 449, 461 Pedda Amani v.

Ramasamy AijaxLV. Minakshi Ammal

Source page 12

Sivanantha Perumal Sethurayar 138, 14, 232 Ramalinga Pillai v. Minakshi Ammal 143, 331 Ramasamy Padeiyatcbi v. Virasami Padeiyatchi Ramcbandra Dikshit v. Sayitribai 208, 215 « Ram Dhun Doss v. Ram Dulal Sircar v, Sreemutty Joymoney Dabey 318, 334 . Annammai Ammal 49, 172 Soobbu Tevan v.

TABLE OF CASES CITED.

Source page 13

365, 409 Sri Gajapaty Hari Krishna Devi Garu v. Sri Gajapaty Radhika Patta Maha Devigaru .......... Soodha Ram . . . . . . . .191 Suntosh Ram Doss v. Gera Pattuk . . . . . , .117 Tara Chand v. Reeb Ram , 233, 234 Taramunnee Dassee v. Motee Buneanee 403, 404 Teencowree Chatterjea v.

' ERRATA.

Source page 14

Page 29, line 10, for '• adversity " read " diversity." „ 190, line 10, imert " him " after '• follow." „ 219, line 11, omxt the comma after "authorities."

MARRIAGE AND STRIDHAN.

Source page 15

THE HINDU IjA.'W OP MARRIAGE AND STRIDHAN. Remarks on Hindu law generally — What is Hindu law — Rules of civil conduct not distinguished from religious ordinances — The Dkarma Sastra and its three divisions — Nature of the authority on which Hindu law was originally based — The nature of the Smritis — Constitution of Hindu courts — Growth of Hindu law — Different schools of Hindu law — Sources of the Hindu law — Original authorities — Custom — Judicial decisions — Who are governed by the Hindu law — How far Hindu law applies to persons other than Hindu — The institution of Marriage — Primitive notions regarding the relation of the sexes — Origin of the institution of marriage — Different forms of the conjugal relation — Polyandry — Polygamy — Monogamy — Marriage by capture — Marriage in Hindu law a sacrament — Different forms of marriage in Hindu society — Scantiness of case-law on the subject of marriage — Stridhan — Plan of the present course. The subject of the present course of lectures being the RemarksHindu law on Hindu law of Marriage and Stridhan, a few words touching generally. the nature of Hindu law generally may not be deemed here quite out of place. The questions that arise for consideration under this head are :— What is Hindu law ? While many would deem it idle to discuss the first of the what is Hindu above questions, there are some among scholars and lawyers who are disposed to think that it is impossible to refrain from asking, " Has such a thing as ' Hindu law' at any

Lecture I. time existed in the world ? or is it that ' Hindu law ' is

Source page 16

Lecture I. time existed in the world ? or is it that ' Hindu law ' is a mere phantom of the brain imagined by Sanskritists without law, and lawyers without Sanskrit ? " ^ The fact is, that though the Hindus have, from time immemorial, been governed by laws, their law, until the accession of the British rule, was not law in the sense in which the term is used by English jurists. Rules of civil In the first place, the distinction drawn by modern conduct not ...i, .., ... , , ,, distinguished jurists between municipal or positive law and moral law, from religious . . , . . , ^, i i i i ordinances. IS not observed m Hindu jurisprudence, ihe whole body of rules regulating the life of a Hindu, in relation to civil conduct as well as to the performance of religious ceremo- The Dharma nies, is included under the general name of Dharma Sastra, Sastra and its ^ ^ three divisions, or rcligious Ordinances ; and though in some Sraritis, as in the Institutes of Yajnavalkya, the Dharma Sastra is divided into three sections, relating, respectively, to Achara, or ritual, Vyavahara, or jurisprudence, and Prayaschitta, or expiation, no such clear division is to be found in the Code of Manu, the highest authority on the subject. Nor does the division between Vyavahara and Achara coincide with that between law and religion. Thus, the law relating to marriage — an important branch of every system of jurisprudence — is contained, not in the chapter on Vyava- hara^ but in the part treating of Achara. Thus, when laying down the law of inheritance, he ordains that they w,ho divide among * See A View of the Hindu Lavr as administered by the High Court of Judicature at Madras, by Nelson, p.

certain articles belonging to the women of tlie t>i=:ctuke I.

Source page 17

3 certain articles belonging to the women of tlie t>i=:ctuke I. themselves family, or neglect to maintain certain persons excluded from inheritance, fall deep into sin.* It is true that, in a later work, the Dayabhaga, the distinction between moral and legal injunctions is once introduced ;« but Jimutavahana, in another place in the very same chapter, admits as legally binding a certain nile which threatens violation with no other penalty than con- signment toa region of torments in the next world.* In the second place, the notion that every law is a com- Nuture of the mand of the sovereign, so fuUy developed m the analysis,. which Hinduauthority on law was origi- of Austin, was never associated with the Hindu s idea of naiiy based. law. The Hindu regards his laws as commands, not of any political sovereign, but of the Supreme Ruler of the Universe * — commands which every political sovereign is most imperatively enjoined to obey.^ As obedience to the law implied only obedience to the divine will, it never wounded the pride of the most absolute despot ; and the thought never entered the mind of a Hindu king thai? he could, if he chose, alter or abrogate any of the existing laws. The highest possible ambition of every Hindu ruler was to govern according to primeval law ; and the most perfect type of administrative ability, which the imagination of the Hindu poet could conceive, was the power to lead the subjects, without the least deviation, in the beaten track marked out by Manu.^ When the government of the country passed to the hands of the Mahomedans, the new rulers, from indolence or avarice, were satisfied with im- posing the Jezia, and they refrained from interfering with * Ch. IX, 200—202. * See Manu, I, 58. « Ch. II, 28—30. * See Ibid, VIII, 8. ' Ibid, 23, 24. • Raghuvansa, I, 17.

Lecture I. the civil laws of the Hindus. The Mahomedan govern-

Source page 18

Lecture I. the civil laws of the Hindus. The Mahomedan govern- ment, like most other Asiatic governments, was, as Sir H- Maine observes,^ a tax-taking and not a law-making govern- ment; and thus, notwithstanding the mighty political revolution which it effected in India, the Hindu's idea of law, and the rules which regulated his domestic life, remained unchanged. We must not supposc that any of the so-called codes, such as those ascribed to Manu and Yajnavalkya, though they embody many of the prevailing practices of the times, ever represented the entire body of laws actually obtain- ing in the Hindu community, or was meant to be enforced as the positive law of that community. The researches of modem scholars have shown that most of these codes or Smritis, in their present form, are metrical redactions of certain older compilations called Sutras, and that the older Smritis and the originals of the rest are not codes, but simply manuals for the instruction of the students of the Charanas or schools.^ Moreover, the importance assigned to custom in the Smritis^ amply proves that, besides the rules laid down in those writings, there has always been a large body of customary laws in full force among the Hindus. Constitution of The peculiar constitution of the machinery for the ad- Ilindu courts. ministration of justice in former times, also helped to make Hindu law a law of conscience and right feeling, free from the interference of temporal power. Of the several grades of courts, the tribunal of first instance and ' Early History of Institutions, p.

two successive courts of appeal were courts of arbitration Lecture I.

Source page 19

5 two successive courts of appeal were courts of arbitration Lecture I. and not constituted courts of law ; so that litigation very often came to a close before coming to the king or his chief judge.i The influence of these peculiarities in the nature of Growth ofHindu law. Hindu law on the gradual development of that law, has been most remarkable. While on the one hand, the belief in its emanation from the Deity made it in theory abso- lutely unalterable by any temporal power, on the other hand, the very absence of temporal sanctions in the major- ity of cases, and the feebleness of its connection with tem- poral authority, rendered it practically a system most readily adaptable to the varying wants of society. Now, the changes which have taken place in the course of time, both in the internal structure and the external surround- ings of Hindu society, must have continually presented motives for deviating from the rules laid down in the primeval code — motives which could be but insufficiently counteracted by the spiritual sanctions by which most of those rules were enforced. This led to innovation ; and what was excused as necessary or desirable innovation in one generation, came to be revered as custom in the next ; and thus have been brought about, slowly but steadily, those numerous and important changes in the Hindu law, which may be seen at a glance by comparing the prevailing practices of the Hindus with those enjoined or reprobated in the Institutes of Manu or any other ancient sage. Instances might be multiplied in which practices prohibited by Manu have become ' Macnaghten's Hindu Law, pp.

Lecture I. prevalent, whilst others allowable in his time have be-

Source page 20

Lecture I. prevalent, whilst others allowable in his time have be- come not only obsolete, but actually repugnant to the feelings of the people/ Different To this modc of development of the Hindu law by Schools of Hiuduiaw. the displacement of old and obsolete rules by growing usages, the interpretation of texts by commentators has served as an important auxiliary. Each commentator, under the guise of interpretation, often moulded the ancient texts according to his own views of justice or expediency. And as the authority of each commen- tator was received in some places, and rejected in others, there arose what have been styled the different schools of Hindu law. They are five in number, viz., the Benares, Mithila, Bengal, Dravida, and • Maharashtra schools.^ I ought in this place to notice an objection raised by some eminent scholars and lawyers^ against the assumption of the existence of different schools of Hin- du law. The term ' School' was, I believe, first used by Colebrooke with reference to the diversity of doctrine prevailing in different parts of India on points of law.* Some critics then took exception to the appropriate- ness of the term, but Colebrooke himself answered his critics,^ and the expression 'Schools of law' has since become current in Anglo-Indian law literature. The present objection relates not to the propriety of the * See, for instance, Mauu, IV, 15, 80; X, 117; and the General Note to Manu in Sir W.

name, but to the reality of the thing named. Now it is Lecture I.

Source page 21

7 name, but to the reality of the thing named. Now it is Lecture I. not denied that different commentaries on Hindu law are followed in different parts of India, and that they differ from one another in point of doctrine in some respects ; but these differences are not admitted to be numerous, and it is urged that the idea of schools of law is foreign to Hindu lawyers. Whether the diversity of doctrine in different parts of India is so considerable as to jusfify the use of the phraseology in question, I need not here pause to consider, as I shall have ample occasion hereafter to point out the nature and extent of such diversity, in connection with the law on the subject of stridhan. For the present, it will be sufficient to say that two well-known writers on Hindu law, Srikrishna Tarkalankar and Mitramisra, evidently recognize the existence of different schools of law when they speak of the doctrine of the Mithila lawyers, the doctrine of the Eastern lawyers, and that of the Southern law- yers/ The expression schools of law is not, therefore, altogether foreign to Hindu law ; and as it represents a real distinction, it may conveniently be retained. There is one other point in connection with the schools of Hindu law which deserves notice, namely, the deter- mination of their geographical limits. Baboo Prasanna Kumar Tao'ore has annexed to his translation of the Yivada Chintamani a map of ancient Mithila, but it is not easy to say that the Mithila school does not extend beyond the boundaries of ancient Mithila.

Lecture I. indicated these limits to some extent/ The question,

Source page 22

Lecture I. indicated these limits to some extent/ The question, whether any particular locality falls within the limits of a particular school, will, in every case, have to be determined by evidence showing what authorities are mainly followed in that locality. It will be seen from the foregoing observations that the Hindu law is a body of rules intimately mixed up with religion, and it was originally administered for the most part by private tribunals. The system was highly elastic, and had been gradually growing by the assimilation of new usages and the modification of ancient text-law under the guise of interpretation, when its spontaneous growth was suddenly arrested by the administration of the country passing to the hands of the English, and a degree of rigi- dity was given to it which it never before possessed. Sources of the I now come to consider the sources of the Hindu law. Hindu law. -,«- « tt • n i r/ • These, according to Manu and Yajnavalkya,^ are the StvlU ' or the Veda, the Smriti or the codes of law, and approved usage. A more practical division of the sources of the Hindu law at the present day would be that into the following three classes — the original authorities consisting of the texts and the commentaries, custom, and judicial decisions.

sages, which are professed to be based on the Vedas, gradually

Source page 23

Tlie fact, moreover, that legal rules are given in Lecturk I. the Vedas only incidentally and occasionally,* must have made reference to them on questions of law extremely inconvenient. Thus the Smritis or the institutes of the sages, which are professed to be based on the Vedas, gradually became the sole exponents of the Vedic authority; and though by a rule of interpretation,^ if the Sruti and the Smriti differ on any point, the former is to prevail, such differences were seldom, if ever, discovered ; and in course of time, the institutes came to be regarded as infallible guides, rendering further reference to any higher source unnecessary. But if the veneration in which the Vedas are held at the present day is only theoretical, the deference shown to the Smritis is almost equally so. Numerous instances may be given in which practices reprobated by the sages have become common, while others allowed by them have become actually prohibited. Thus, to give one instance out of many, in the Institutes of Manu there is a clear prohibition against intermarriage with the daughter of a maternal uncle,^ while marriage with a girl of an inferior caste is allowed ;* and yet, at the present day, the former practice is common in Southern India,* while the latter is regarded as prohibited.^ However strange it may seem that the Hindu should profess to allow a body of rules, and yet observe practices widely at variance with them, and howsoever he may be charged with inconsistency for this difference between his creed and his conduct, the fact * 1 West and Buhler's Digest of Hindu Law, Introdn., p. xxxvii. * See the text of Vyasa cited in Vidyasagar's Widow Marriage, 4th ed., p. U. ' III, 5. * III, 12, 13. * 2 Strange, pp.

Lecture I. of this diiference should never be ignored by the Courts ;

Source page 24

Lecture I. of this diiference should never be ignored by the Courts ; and they ought never to impose upon the Hindu people any rule of law, simply because it finds a place in the Institutes of Manu or Yajnavalkya, without ascertaining whether it is living law or dead letter. This has been very clearly recognized by the highest judicial authority. The Judicial Committee observe :— " The duty, therefore, of an European Judge, who is under the obligation to administer Hindoo Law, is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular School which governs the district with which he has to deal, and has there been sanctioned by usage. For, under the Hindoo system of law, clear proof of usage will out- weigh the written text of the law." ^ It is the commentaries, therefore, that form the most im- portant branch of the original authorities on Hindu law. If these commentaries had been sufficiently precise and exhaustive on all important points of law, the administra- tion of Hindu law by the Anglo-Indian Courts would have been far more satisfactory than it is. Whilst every one must admire the wise and just policy of the British Gov- ) ernment in not interfering with the civil law of the Hindus, the untiring perseverance of English scholars in making: the sources of that law accessible to English judges, and the scrupulous care of those judges in ad- ministering that law as correctly as possible, no intelligent observer can help being dissatisfied with the uncertainty and incorrectness which often mark this branch of Indian » The Collector of Madura v.

case-law. The difficulty lies in the nature of the subject. Lecture l

Source page 25

ORIGINAL AUTHORITIES — CUSTOM, 11 case-law. The difficulty lies in the nature of the subject. Lecture l The commentaries on Hindu law are more like speculative disquisitions on points of law than practical treatises for the guidance of judges. They treat of some questions at great and unnecessary length, while they leave others al- most untouched. The judges of the native Courts, who were mostly .arbitrators with considerable local know- ledge, used to supply these deficiencies in the written law, either from their knowledge of local usage or from their knowledge of law derived from tradition ; but such knowledge is not always within the reach of foreign judges. Perhaps the only commentary which bears the character of a practical treatise on law in the eye of an English lawyer is the Dayakrama Sangraha of Srikrishna Tarkalankar.

Lectuee I. usage is law in that country." ' And there is the well known

Source page 26

Lectuee I. usage is law in that country." ' And there is the well known saying in the Mahabharat, — " 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." ^ Nor is this respect for custom a mere theoretical doctrine of ^Hindu law. Though in Upper India and the Gangetic provinces, which have been the seat of Aryan influence from very ^ early times, customs in derogation of the Brahmanical law are not very numerous, yet, in places outside of those provinces, as Assam and Orissa, and throughout Southern India, where the Aryan settlers seem to have migrated at a later epoch, the preponderance of the abori- ginal element in the population has brought into existence numerous usages directly at variance with that law, which govern the conduct of men in the most important affairs of life. Accordingly, the Frivy Council have laid down the rule that, in Hindu law, " clear proof of usage will out- weigh the written text of the law ; " * and in some of the later enactments of the Legislature, such as the Punjab Laws Act and the Madras Civil Courts' Act,* it is provided that in cases in which the Hindu law has been modified by custom, such custom, and not the Hindu law, shall form the rule of decision. But then there arises the question, how to ascertain these usages. If they are to be ascertained by the judges * Colebrooke's Digest, Bk I, Ch.

CUSTOM. 13

Source page 27

13 from the examination of private individuals, then, as the Lecture L Government of Bombay in a Minute recorded in 1823 pointed out, " the looseness of tradition must lead to con- trary opinions," and there would also be "the chance of corruption, faction, favor, and other sources of partiality among the witnesses." ^ To obviate this difficulty, under the direction of the Local Government, Steele prepared his admirable compilation of the Law and Custom of Hindoo Castes in the Bombay Presidency. Similar compilations for the other Presidencies are certainly a desideratum. It i& true that customs which have once been judicially recog- nized can be ascertained from the records of the Courts ; but we must not suppose that these are all the customs that ought to have binding force. The Madras High Court has, it is true, laid down a contrary doctrine, viz., that " no custom how long soever continued, which has never been judicially recognized, can be permitted to prevail against distinct authority ; " ^ but this ruling is opposed to the dictum of the Judicial Committee already quoted ; and with all deference to the learned judges who laid it down, it is, I think, equally opposed to reason. In order that a custom may have the force of law, it is necessary that it should fulfil certain conditions. It must * Steele's Law and Custom of Hindoo Castes.

Lecture I. be of long standing, so as to show that it has by common

Source page 28

Lecture I. be of long standing, so as to show that it has by common consent been submitted to as the established governing rule of the particular family, class, or district of country/ Upon the question how old a custom in this country must be shown to be in order that it may have legal force, the following observations of Sir Charles Grey, C. J., may be usefully consulted : " Although in this country we cannot go back to that period which constitutes legal memory in England, viz., the reign of Richard I, yet still there must be some limitation without which a custom ought not to be held good. In regard to Calcutta, I should say that the Act of Parliament in 1 773, which established the Supreme Court, is the period to which we must go back to find the existence of a vaild custom, and that, after that date, there can be no subsequent valid custom, nor any change made in the general laws of the Hindus, unless it be by some Regulation by the Governor-General in Council, which has been registered in this Court. In regard to the mofus- sil, we ought to go back to 1793 ; prior to that there was no registry of the Regulations, and the relics of them are extremely loose and uncertain." ^ A custom must also be certain, invariable, and continuous.* Judicial deci- I ^^ow come to the third and the most important branch Bions. . of the sources of Hindu law — judicial decisions. Though the Hindu does not yield to the English lawyer in his * Sivanananja Perumal Sethurayar v. Muttu Ramaling-a Sethurajar, 3 Mad., 77. • Clarke's Rep., 113, 114 ; Shama Charan's Vyavastha Darpana, p.

Some of the decisions on Hindu law, though professing

Source page 29

15 respect for precedent, yet, owing perhaps to the fact that Lecture I. the decisions of Hindu courts were never recorded in writing, case-law never formed a part of the juridical system of the Hindus. But since the establishment of the Anglo- Indian Courts, judicial decisions have not only become a source of the Hindu law, but have been the chief agency by which changes have been effected in that law. Except in a few rare instances, the British Indian Legislature has, in pursuance of the policy of religious toleration, abstained from interfering with the Hindu law. So that, for nearly a century, the progress that Hindu law has made has been due entirely to the action of the Courts. Some of the decisions on Hindu law, though professing to be founded on the written law, have, either from an imperfect understanding of that law, or from a designed non-compliance with its purely religious injunctions, deviated completely from the original rule ; and the question arises, how far they are entitled to be followed in prefer- ence to the original authorities. While, on the one hand, lawyers who set a high value on the uniformity and con- sistency ofthe law, maintain that these decisions ought to be followed ; on the other hand, scholars who have critic- ally studied the subject, and who place an equally high

Lecture I. value on the correctness of the law, protest against the

Source page 30

Lecture I. value on the correctness of the law, protest against the perpetuation of error. No doubt, there are arguments in favor of both sides. Where a decision at variance with the original authorities stands alone and has not been followed, there will be no inconvenience in departing from it when the error is discovered. But where a decision, though erroneous, has been followed as a precedent in a series of cases, the solution of the question involves some diffi- culty. For, though it is wrong to perpetuate an error, it would hardly be right to rectify the error by unsettling the law and overruling a precedent which might have long been the basis of men's expectations and conduct. Where there has been a uniform current of decisions, notwith- standing that they may be erroneous, the reasons for following them will, on the whole, be found to prepon- derate, unless the error appears to be so clear as to lead to a fair presumption that the rule laid down in the decisions could not have been uniformly accepted as settled law by the profession or the public.

High CouHs and the different Civil Courts' Acts/ which Lecture I.

Source page 31

WHO ARE GOVERNED BY THE HINDU LAW. l7 High CouHs and the different Civil Courts' Acts/ which Lecture I. declare that in cases relating to marriage, succession, and a few other matters, the Hindu law shall apply to Hindus. But the question then arises, who are the Hindus ? The name ' Hindu ' is not very definite in its signification. In the Anglo-India law-language of the last century, the word ' Gentoo' (a word of curious derivation and supposed to be connected with gentoo, or rather jantu, an animal, and gentile, a pagan) occurs as a frequent substitute for it ; and Halhed, the translator of the Digest of Hindu Law known as the Code of Gentoo Laws, tells us that that word was used as a name for those who professed the Brahmanical religion.^ The word ' Hindu ' is of foreign origin,* and is derived from the word ' Indus ' or ' Sindliu ' ; and it was used by the Ma- homedans to designate the people living to the east of that river. Etymologically, therefore, the word means an inha- bitant ofIndia, and applies to a Buddhist as much as to a Vaishnava. There are indications in the law* from which it is clear that ' Hindu ' in legal phraseo- logy originally meant a hand fide follower of the Brahman- ical religion, or, as the Privy Council in the case of Ahra- ham V.

Lecture I. islature has abstained from enacting territorial laws appli-

Source page 32

Lecture I. islature has abstained from enacting territorial laws appli- cable to all India, and has allowed particular races to be gov- erned bytheir own laws, one would expect this to be the sense in which the term is used in above-mentioned Acts. But it would hardly be right at the present day to limit the applica- tion of the term to bond fide followers of the Brahmanical faith. To say nothing of those, and they are not a few, whose observance of Hinduism is mere matter of outward form and social convenience, there are classes of persons, such as the Brahmos, who do not observe even that out- ward form. Such persons cannot be called Hindus in the above sense of the term ; and yet it would be going too far to hold that they are not Hindus within the mean- ing, for instance, of section 831 of Act X of 1865, and that succession to their property should be regulated by the Indian Succession Act, and not by the Hindu law. To include such persons within the category of Hin- dus, we must extend the meaning of the term, and take it to signify not only Hindus by religion, but also their des- cendants who have not openly abjured the Hindu religion. It remains, however, to ascertain who are Hindus by reli- gion.

has never been completely homogeneous in religion, and Lecture I.

Source page 33

19 has never been completely homogeneous in religion, and Lecture I. it has thrown off various sects at different times. But as this heterogeneous body and its numerous offshoots admit more or less the authority of the Vedas, and conform to a few other fundamental tenets of the Brahmanical faith, the highly tolerant character of that faith admits them all as being within the pale of orthodoxy, and so they may all be regarded as Hindus. There are only three Indian sects of importance — the Buddhists, the Jainas, and the Sikhs — who have entirely repudiated Brahminism, and who ought to be excluded from the category of Hindus; and judging from the language of certain enactments^ in which those three sects are mentioned as classes co-ordinate with the Hindus, it would follow that the Legislature intends such exclusion. But I may observe that, in the absence of evi- dence of any separate law or usage governing these sects, the Hindu law has been held to apply to them.^ The first section comprises a considerable portion of the population of the Madras Presidency and Central India, 4nd the hill tribes of various other parts of India. Their customs and their religion differ widely from those of the Hindus properly so called. They have no codes of law, but in some instan- 'ces they have adopted much that is Hindu in their customs and religion, and some of these tribes, such as the Koch and others, have been described by Dalton as the hinduised aborigines of India.^ These semi-Hindu races have been sometimes regarded as Hindus, and, therefore, subject to * Act XVII of 1876, s.

Hindus. renounces the Hindu religion, yet, he may, if he chooses,

Source page 34

But this is an error which proceeded from our ignorance of the customs and religion of these races. As more is now known of them than before, better provision is now made for the administration of justice to them. Thus we find in the Civil Courts Acts and Local Laws Acts, that, in addition to Hindu law, custom, which is the chief source of their law, is expressly declared to be the rule of decision in certain cases. How far Hin- Thouffh the Hindu law, beinor only the personal law of du law applies ^ . , to persons i'j^q Hiudus, Can have no bindino:°force on any*^ one who other than Hindus. renounces the Hindu religion, yet, he may, if he chooses, " abide by the old law, notwithstanding he has renounced the old religion." This doctrine was laid down by the Privy Council in the case of Ahraham v. Abraham^ Lord Kingsdown, in delivering the judgment of the Judicial Committee in that case, obseiwed: — "The profession of Christianity releases the convert from the trammels of the Hindoo law, but it does not of necessity involve any change of the rights or relations of the convert in matters with which Christianity has no concern, such as his rights and interests in, and his powers over, property. The convert, though not bound as to such matters either by the Hindoo law or by any positive law, may, by his course of conduct after his conversion, have shown by what law he intended to be governed as to these matters.

INSTITUTION OF MARRIAGE. 21

Source page 35

21 over it, should be governed by the law which he has Lecture I. adopted or the rules he has observed." It is to be observed that this liberty of renouncing or abiding by the Hindu law, extends only to matters not provided for by legislation.* I shall now make a few general observations on the The institution „ __. . HI- • n 1 0* Marriage. institution or Marriage. Marriage, as you all know, means union between man and woman for certain social, and sometimes religious, purposes. The next point for enquiry is, what is the origin of this Primitive no- tions regard- institution. The strong moral sentiment with which it is i"g the rela- tion of the associated in the minds of men in civilized society, and the sexes. firm conviction they have of its necessity for the preser- vation and well-being of the race, have led most people to think that marriage is a natural relation, and must have existed from the infancy of mankind ; and deviations from their own ideal of this natural relation, as well as the observance of formalities which seem unnecessary to the creation of such relation, are either regarded as puzzling anomalies, or explained away as abnormal practices — the result of human caprice. Thus the polyandry of Thibet is viewed as a shocking practice, and the mock fight attend- ing the celebration of marriage among the Khonds of Orissa^ is regarded as a foolish and unmeaning custom.

Lecture I. institutions properly, you must know, not only what they

Source page 36

Lecture I. institutions properly, you must know, not only what they are, but also what they have been. They do not stand isolated from the past, and are often unintelligible without a knowledge of the past. The chief sources of such know- - ledge are the study of the laws and legends of ancient societies, which always bear traces of a very remote past, and the observation of the present condition of savage people, which represents a past stage of social progress. It is true that this second source of knowledge has been sometimes characterized as " the slippery testimony con- cerning savages which is gathered from travellers' tales ; " * but as such evidence has not been shown to be untrust- worthy, itis acted upon by those who have devoted their best attention to it.~ From such evidence. Sir John Lubbock has shown that marriage as we understand it, was unknown to primitive man, and that the earlier notions about it were very different from those prevailing in advanced society. " Marriage," says he, " and the relationship of a child to its father and mother, seem to us so natural and obvious, that we are apt to look on them as aboriginal and general to the human race. This, however, is very far from being the case.

of communal marriage, where all the men and women in a Lectuue I.

Source page 37

ORIGIN OF THE INSTITUTION OF MARRIAGE. 23 of communal marriage, where all the men and women in a Lectuue I. small community were regarded as equally married to one another."* The legend of Swetketu, preserved in the Mahabharat,'' that rich record of Indian traditions, also points to the same conclusion. What is termed communal marriage in the above extract, is really no marriage at all, but is only another name for promiscuous intercourse. How the institution of marriage was evolved out of pro- Origin of the , , . , T^ „ institution of miscuity, and why it assumed so many different forms, are marriage, questions which can hardly be discussed within the limits of the present lecture. I must content myself with barely indicating the nature of the genesis of this institution, and refer you for further information on the subject to works on Sociology.^ Though the sexual relation among savages is of the most loose and indefinite character, it would be erroneous to suppose that unqualified promiscuity could ever have prevailed. The savage has his crude notions of individual ownership as regards his weapons, implements, and dress, and it is not likely that he would be altogether without such notion as regards women.

Lecture I. it has to depend for its subsistence solely on maternal care

Source page 38

Lecture I. it has to depend for its subsistence solely on maternal care Thus the rearing of children is imperfectly provided for. At the same time it entails excessive labor on the women, and thereby brings on early decline. And the men, de- prived of domestic assistance of every sort, must close their later years comparatively sooner. Hence, by the law of the survival of the fittest in the struggle for existence, groups having definite sexual rela- tions would evolve out of groups with prevailing promis- cuity. Icannot describe this process of evolution better than in the words of Herbert Spencer :' " Out of this lowest state, however, there tend to arise higher states. In two ways do groups thus loose in their sexual relations evolve into groups having sexual relations of more definite kinds. " If, as we have concluded, prevailing promiscuity was from the first accompanied by unions having some duration — if, as we may infer, the progeny of such unions were more likely to be reared and more likely to be vigorous than the rest, — then the average result must have been multiplication and predominance of individuals derived from such unions.

cive to the rearing of many childreu would be of uo ad- Lectubb I.

Source page 39

OHTGTN OF THE INSTITUTION OF MARRIAGE. 25 cive to the rearing of many childreu would be of uo ad- Lectubb I. vantage : the food would not suffice. It may be, too, that in very inclement habitats more careful nurture would be useless ; since where the hardships to be borne in adult life were extreme, the raising of children that could not bear them would not help to preserve the society — nay, by wasting food and effort, might prove detrimental. The ability of a child to survive with no care beyond that which its mother can give, may in some circumstances be a test of fitness for the life to be led. But save in such ex- treme cases, the favorable effects on offspring must tend to establish in a social group, persistent relations of the sexes. " The struororle for existence between societies conduces to the same effect. Subject to the foregoing limitation, what- ever increases the power of a tribe, either in numbers or in vigour, gives it an advantage in war ; so that other things equal, societies characterized by sexual relations that are the least irregular, will be the most likely to conquer.

Lecture I. food and favorable climate may render less important the

Source page 40

Lecture I. food and favorable climate may render less important the advantage which the offspring of regular sexual relations have over those of irregular ones. And this may be the reason why in a place like Tahiti, where life is so easily maintained and children so easily reared, great sexual irreg- ularit}^ was found to co-exist with large population and considerable social advance. " As, however, under ordinary conditions the rearing of more numerous and stronger offspring must have been favored by more regular sexual relations, there must, on the average, have been a tendency for the societies most characterized by promiscuity to disappear before those less characterized by it." Thus, marriage is first a practice, then that practice grows into a custom, and finally the custom passes into law. Different The essential difference between promiscuity and mar- forms of the conjugal riage is the exclusiveness of the latter relation ; and different relation. forms of marriage result from the different degrees of this exclusiveness. These last are determined by the number of parties to the relation, and the duration of it. As depend- ing upon the number of parties to the relation, the differ- ent possible forms of marriage are as follows :— I. The union between a certain number of males and a certain number of females, which is the form of marriage commonly prevailing amongst the Nairs of Malabar.

the Pandavas, which forms the subject of so much discus- Lecture I.

Source page 41

27 the Pandavas, which forms the subject of so much discus- Lecture I. sion in the Mahabharat, is an instance of this kind. The union between one man and several women, known as polygamy, or polygyny, which is found to exist amongst the Hindus, the Mahomedans, and several other nations. The union of one man with one woman, which is called monogamy, and which prevails in Christian countries. As depending upon the duration of the union, the dif- ferent forms of marriage are :— I. Marriage for a definite term or terminable at the option of the parties, which is one of the forms that pre- vails, under certain restrictions, amongst the Mahomedans. Marriage for the joint lives of the parties, which is the form prevailing amongst Christians.

28 INTRODUCTORY REMARKS.

Source page 42

Lecture I. race by checking over-population and consequent starva- tion and misery. Fraternal polyandry has its parallel in other archaic institutions, such as that of joint property. It is, however, inferior to polygamy, ethically as well as socially ; for in the latter, the paternity of the offspring being known as certainly as their maternal relation, they equally share the fostering care of both parents, and repay it to both in the shape of filial tenderness in their old age; while collateral relationship being known and traceable both in the maternal and the paternal line, the family tie is extended and strength- ened ;so that, on the whole, the result is beneficial alike to the young, the adult, and the old. In monogamy, these beneficial effects become still greater by reason of the greater strength of the marriage tie, and the ameliorjition of the condition of women. Durinor the earlier or militant stage of social progress, when there is greater mortality among men, polygamy may be necessary, and may even prove beneficial as a better means of maintaining the population than monogamy. But as society settles into a peaceful condition, and the numerical inequality between males and females becomes less and less, monogamy becomes a social necessity.

fact, and the evidence in its support is considered by Lecture I.

Source page 43

Section 99 — ' M'Lennan's Primitive Marriage, Ch

29 fact, and the evidence in its support is considered by Lecture I. competent judges to be overwhelming/ It existed amongst the Jews, the Spartans, and the Romans, and is found to prevail amongst numerous savage tribes.^ In our own ancient code, marriage by capture called the Rakshasa marriage,' is recognized as one of the eight forms of marriage, though in consequence of the advance that Hindu society had made in Manu's time, it is reorarded as an inferior form. Concerninor the origin of the practice, great Adversity of opinion pre- vails. M'Lennan thinks that it orimnated from female infanticide, leading to scarcity of women within the tribe, which must have compelled its members to obtain wives by capture from neighbouring tribes.* According to Sir John Lubbock, this view is erroneous, and the practice really owes its origin to the fact tliat forcible possession would be the only mode by which individual marriage, — that is the appropriation of a woman by a single man, — could arise out of communal marriage.* But Spencer has shown that the practice must have originated from a number of concomitant causes, such as the hostile relation of primitive neighbouring groups, resistance from female coyness, and opposition of parents against the taking away of daughters.® Whatever be the origin of the practice, its necessity ceases as society advances, and changes its character from the militant to the peaceful ; but the sentiments of honor * Lubbock's Origin of Civilisation, p. 99. ' M'Lennan's Primitive Marriage, Ch. 3 Manu, III, .33. * M'Lennan's Primitive Marriage, 2nd ed., p. 1,1 1- ^ Origin of Civilisation, pp.

Lecture I. already associated with it still survive and produce a

Source page 44

Lecture I. already associated with it still survive and produce a leaning in favour of its feigned observance ; and thus what was at first a stern reality, becomes transformed into a harmless ceremony. This accounts for the extensive prev- alence ofthe form of capture as a marriage ceremony in archaic law ; and the practice among the Khonds already alluded to is onl}" an instance of this. The prohibition against marriage between members of the same stock, which is another peculiarity of primitive law, and which is still in force with us,^ has been gener- ally considered to be connected with the practice of mar- riage bycapture, though, as to the precise nature of this connection, opinion is not altogether unanimous.^ Marriage in The importance of the institution of marriage is too sacrament. well recognized to require any comment. It is the source of every domestic comfort from infancy to old age ; it is necessary for the preservation and the well-being of our species ; it awakens and developes the best feelings of our nature; it is the source of important legal rights and obligations ; and in its higher forms, it has tended to raise the weaker half of the human race from a state of humiliat- ing servitude. To the Hindu, the importance of marriage is heightened by the sanctions of religion. "By no peo- ple," says Sir T. Strange, " is greater importance attached to marriage than by the Hindoos." ^ In Hindu law it is reofarded as one of the ten sanskars, or sacraments * ne- cessary for regeneration of men of the twice-born classes, ' Manu, III, 5. * M'Lennan's Primitive Marriage, pp.

and the only sacrament for women^ and Sudras. ^ It Lectube I.

Source page 45

31 and the only sacrament for women^ and Sudras. ^ It Lectube I. being a settled doctrine of the Hindu religion that one must have a son to save him from a place of torment called put, ^ marriage, as the primary means to that end, becomes a religious necessity. This necessity, as regards the Brahman, is further pointed out in another way. " A Brahman," says the Veda, " immediately on 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."* Accordingly, Manu ordains that, " after he 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 ; but if a Brahman have not read the Veda, if he have not begotten a son, and if he have not performed sacrifices, yet shall aim at final beati- tude, he shall sink to a place of degradation." ^ The earlier rules of Hindu law, having reference to Hindu society in that stage of its progress when the Aryans had recently settled in a healthy and fertile country, and when rapid multiplication of the race was an important object, no doubt, regard marriage chiefly as a source of progeny. But you must not imagine that the higher or spiritual aspect of marriage has been altogether overlooked. The Vaidik texts that are recited on the completion of the seventh step by the bride, * clearly show that the Hindus* even in those early days, had learned to regard marriage as a true companionship of the purest character, a union * Manu, II, 67. « Coleb. V, 122. =» Manu, IX, 138. * Cited in the Dattaka Mimansa, Sec. I, 5. * VI, 36, 37. * See Asiatic Researches, Vol.

Lectuee I. of pure hearts, for the cultivation of the best feelings of

Source page 46

Lectuee I. of pure hearts, for the cultivation of the best feelings of our nature. Different forms India has sometimes been regarded as an epitome of the of marriage . . in Hindu world in respect to the variety of its climate, flora, and society. . fauna, and I may add that it may equally well be regarded as such in respect to variety in its forms of marriage. In the Hindu law, strictly and properly so called, there are no less than eight different forms of marriage, differing from one another in no slight degree, being in fact typical of different stages of social progress ; and in consequence of the varying rates at which society has advanced in difierent parts of India, the customary and statutory forms of mar- riage prevailing amongst the Hindus and the -semi-Hindu races, mostly of non- Aryan origin, are of the most varied description.^ So that Indian life presents almost every possible form of the conjugal relation, from the grossest polyandry verging on promiscuity, to the purest and the most rational form of monogamy. ^ It is this last circumstance that attaches peculiar value to the Hindu law of marriage. While, like every other branch of living law, it has an interest for the practical lawyer, and like every other branch of archaic jurispru- dence, an interest for the jurist, it is a rare collection of varied materials for the student of sociology. Scantiness of From the above remarks you may infer that the Hindu case-law on the subject of law of marriage is a complicated subject, and so to some marriage. extent it really is ; but it is free from one source of com- plication which often perplexes the student of law. It has not to be disentangled out of a mass of unconnected * See Nelson's View of the Hindu Law, &c., pp.

precedents. " It is remarkable," observes Morley, " that Lecture I.

Source page 47

33 precedents. " It is remarkable," observes Morley, " that Lecture I. there have been no cases relating to the Hindu law of husband and wife reported in the Presidencies of Bengal and Madras: the reader will perceive that, with one exception (a case in the Supreme Court at Calcutta), all the placita refer to cases decided in the Adawlut Courts of Bombay." * Though, since the above was written, there hns been some addition to the case-law on the subject, yet that addition is but small. The Bombay cases alluded to are cases relating to certain customary forms of mar- riage. One cause of this scantiness of case-law is, I believe, the sacramental character of marriage in Hindu law. Owing to this, the Hindus are so careful to observe the rules con- cerning marriage, and to avoid error, unless it be on the safe side, and so strong is their disinclination to question the validity of marriage in any case, that disputes con- cerning this topic seldom arise for judicial determination. It remains now only to say a few words by way of intro- stridhan. duction to the law of Stridhan, The word stridhan is derived from stH, woman, and dhan, property, and means literally woman's property. While declaring the perpet- ual tutelage of women,^ and their general incapacity to hold property,^ the Hindu law concedes to them the privilege of holding property of certain descriptions with absolute power of disposal.

Lecture I. sion of male issue. The law of stridhan stands, therefore,

Source page 48

The law of stridhan stands, therefore, in favorable contrast with the general spirit of the Hindu law, which in other respects is, no doubt, not very equi- table towards women ; and when it is remembered that in no ancient or mediaeval system of law, except the Maho- medan and the later Roman, have so large concessions been made in favor of the proprietary rights of women, the Hindus may find some reason for just complacency in this chapter of their law. Concerning the nature of stridhan and the order of succession to it, great diversity of doctrine prevails in the different schools. In tracing this diversity to its source, you will be furnished with ample illustration of the man- ner in which the interpretation of texts by commentators has served as an agency for the gradual development of the Hindu law. Plan of the I shall concludc this Lecture with a rough outline of the plan I intend to follow. As the law o^ stridhan depends in some of its provisions on the law of marriage, the consideration of marriage will precede that of stridhan. The Hindu law of marriage divides itself into two branches, one being the Hindu law of marriage strictly and properly so called, — that is the law as found in the in- stitutes and commentaries : and the other, the law relatino- to certain forms of marriage which are legalized by cus- tom or by statute law, and which prevail among the Hin- dus in the widest sense of the term, as includino- Hindus strictly so called, as well as those who are popularly known by that name.

under the following four heads, to which the points for Lecture I.

Source page 49

35 under the following four heads, to which the points for Lecture I. consideration on the subject may be reduced, viz. :— I. — Parties to marriage. IT. — Modes of contracting marriage. III. — Incidents of marriage, that is, rights and duties arising out of it. Having finished the law of marriage, 1 shall take up the law of stridkan. In this subject the questions for consid- eration are three — First — What constitutes stridkan ? Second — What are the rights of a woman over her stridkan ?

LECTURE II.

Source page 50

Questions for consideration— Who are incompetent to marry — Minors— Idiots and lunatics — The deaf and dumb, and persons incurably diseased — Impotent per- sons— One having a wife living— Polygamy — One whose elder brother is unmarried — Who are unfit to be taken in marriage — Females how far viewed as parties to marriage — Minors — Marriageable age for a female — Guardiansliip in marriage — Betrothed girl — One whose husband is living — Widows — Girls with visible or other minor defects — One whose elder sister is unmarried — Woman of the same gotra — Girls related within the prohibited degrees — Prohibited degrees in different systems compared — Daughter of one's spiritual guide or pupil — Girl bearing one's mother's name — Girl older in age — Girl belonging to a different caste — Daughters of illegitimate persons — Effect of disqualification on marriage already completed. Questions for I shall begin with the law relating to parties to marriage. The rule is, that primd facie all persons are to be deemed qualified for every purpose, unless it is shown that the law has disqualified any of them for any purpose. We have, therefore, to enquire what persons are, by the Hindu law, disqualified from becoming parties to marriage. This disqualification is either absolute or relative, according as it renders a party altogether incompetent to marry, or only incompetent to marry a particular person. Thus a woman whose husband is living is, as you will see, abso- lutely incompetent to marry, while a woman who is re- lated toa man within certain prohibited degrees is dis- qualified only as regards marriage with that particular man, and may marry any other man to whom she is not so related.

MINORS. 37

Source page 51

37 passive party, or the party who is takeri in "marriage, the two Lecture II. questions, — Who are incompetent to marry ? and Who are unfit to be taken in marriage ?— will embrace the whole scope of the enquiry into absolute and relative disqualifi- cations ;for the answer to the former will include all absolute disqualifications in the male, while the answer to the latter will include all absolute disqualifications in the female, as well as all relative disqualifications in both. I shall consider first the question. Who are incompetent Who are in- competent to to marry ? Here you will bear in mind that marriage is marry. regarded in Hindu law not only as a civil contract, but also as a sacrament, being one of the ten regenerating ceremonies^ necessary for men of the twice-born classes, and the only one necessary for Sudras ; ' and that in con- sequence ofthis religious necessity, the grounds of disquali- fication for marriage are fewer in the Hindu law than in any other polished system of law. I shall notice the cases of persons who are generally considered incompetent to marry, and point out their position in the Hindu law. Persons below a certain age are in most other systems Minors. of law considered incompetent to marry ; but that age is not the same in all, nor is it the same as the age of ma- jority for other purposes.

Lecture II. ernment/ while the ordinary age of majority is twenty-

Source page 52

Lecture II. ernment/ while the ordinary age of majority is twenty- one.'^ Under the English law, while the ordinary age of majority is twenty-one, the age of consent to matrimony is fourteen in males and twelve in females ; but if a boy under fourteen actually go through the form of marriage, such marriage is not absolutely void, but voidable only.^ But in the Hindu law, want of age, though a disqualification for other purposes,'* does not render a person incompetent to marry, and there is no age fixed as the age of consent to marriage. Though our ancient sages fully perceived that the cares of matrimony are incompatible with the life of a professed student; and accordingly a twice -born man is directed by Manu not to marry until the completion of his period of studentship f yet that period is indefinite, as it commences with Upanayan, or investiture with the sacred thread, and may, as the same sage ordains, last for thirty-six years or for half that time, or for a quarter of it, or until he perfectly understands the Vedas.^ At the present day this period of studentship is, as you are aware, entirely nominal, being reduced to a few hours or at the most, days ; and the ceremony of Samavartan, or return from the house of the preceptor, is performed sometimes on the very day of the Upanyan, and sometimes only a few days later. But as investiture with the sacred thread, which takes place for the Brahman, Kshatriya, and Vaisya, ordinarily at the ages of eight, eleven, and twelve years,' must precede marriage, practically, the limits of the marriageable age for * Arts. IV, 15, 57, 58 ; Manu, VIII, 163. * Maau, III, 4. ^ Manu, III, 1 ; see also IX, 94. ' Manu, II, 36.

these classes are eight, eleven, and twelve years res- Lkotitre H.

Source page 53

39 these classes are eight, eleven, and twelve years res- Lkotitre H. pectively ; and for the Sudra, there is no limit at all. But though a boy may marry at an early age, when his own consent is hardly worth anything, the consent of his father or other guardian is necessary so long as he is a minor.* The texts of Hindu law speak of guardianship in marriage only with reference to female minors," but in a case given in Macnaghten's Precedents of Hindu Law,* one of these texts was held applicable to the case of a male ; and that text, which is evidently the text of Yajnavalkya (I, 63), cited in Colebrooke's Digest (Bk. V, 135), provides that the father, the paternal grandfather, the brother, a sakidya or kinsman on the paternal side, and the mother, are the guardians in succession. The want of a guardian's consent would not, however, invalidate a marriage other- wise legally contracted.* The marriage of a Hindu minor is not only allowable, but has been held to be a legitimate cause of expense in regard to which his guardian has power to bind him.* Marriage being one of the matters not affected by the provisions of the Indian Majority Act (IX of 1875), for the purposes of marriage, a Hindu attains majority on com- pleting his fifteenth year.^ Aiding and abetting the marriage of a minor under the Court of Wards in the Madras Presidency, without the * Nundlal Bhugwandas v. Tapeedas and another, cited in 1 Mori., 287 ; Steele's Law and Custom of Hindoo Castes, p. VII, Case II. * Modhoosoodun Mookerjee v.

Lecture II. leave of the Collector, is made punishable under section 9

Source page 54

Lecture II. leave of the Collector, is made punishable under section 9 of Act XXI of 1855. idiofs anil Persous of uusound mind, — that is, idiots and lunatics, — lunatics. though disqualified for civil purposes generally,^ have not been declared incompetent to marry. On the contrary, there are indications in the law from which it would appear that they are considered to be competent to marry. Thus Manu, after declaring the exclusion of these and other disqualified persons from inheritance, ordains :** " If the eunuch and the rest should at any time desire to marry, and if the wife of the eunuch should raise up a son to him hy a man legally appointed, that son and the issue of such as have children, shall be capable of inheriting." And Jimuta Vahana, in his chapter on exclusion from in- heritance, makes the following comments on the above passage :— " It must not be objected, how can they contract marriages, since the eunuch not being male, is incapable of procreation, and the dumb man and the rest [or those born deaf or bUnd], are degraded for want of initiation and in- vestiture, because they are unapt for [the preparatory] study ? The eunuch may obtain issue from his wife by means of another man ; and a person unfit for investiture with the sacerdotal string is not degraded from his tribe for want of that initiation, any more than a Sudra." ^ And the leading authorities of all the other schools, the Mita- kshara,* the Vivada Chintamani,^ the Vyavahara Mayukha,^ and the Smriti Chandrika,' agree with the Dayabhaga in » Coleb. X, 9— 11. * Prossonno Coomar Tagore's translation, p, 244 . « Ch.

treating the issue of such persons as legitimate and as com- Lecture II.

Source page 55

41 treating the issue of such persons as legitimate and as com- Lecture II. petent to inherit. It was accordingly held in an early case/ that the marriage of a lunatic was valid, and the same view of the law is quoted as correct in West and BUhler's Digest of Hindu Law (p. But, on the other hand, it should be noticed that the idiot and the lunatic being, where the loss of reason is complete, incompetent to accept the gift of the bride, which is a necessary part of the ceremony of marriage," it is not easy to understand how their marriage in such cases can be regarded as marriage at all. And I may add here that Hindu law permits the wife to neglect a mad husband.^ It needs hardly to be pointed out that such marriages are exceedingly improper. To say nothing of the objections based upon reason, the authorities on the Hindu law itself clearly dis- countenance such marriages. Thus Manu declares* — "But it is better that the damsel, though marriageable, should stay at home till her death than that he (the father) should ever give her in marriage to a bridegroom void of excellent qualities." Marriages of idiots and other naturally dis- qualified persons must obviously be of rare occurrence, and the rule which declares them valid and legal can be justi- fied only on the ground that the opposite rule would be hard against the unfortunate offspring, and would deprive the un- happy wife of her legitimate conjugal status without giv- ing her any compensating advantage. ' Dabychurn Mitter and others v.

The cases of persons who are deaf and dumb, or are

Source page 56

The cases of persons who are deaf and dumb, or are affected with loathsome and incurable maladies, are analo- The deaf and gous to those of idiots and lunatics, in this respect that dumb, and personscurably in- their incapacity to participate in the necessary rites^ does diseased. not render their marriage void." But I may add that such persons have been held^ not to be entitled to enforce restitution of conjugal rights. Impotent Impotency, which is generally considered as a disqualifi- persons. cation for marriage, is not viewed in that light in the Hindu law, as will appear from the passages of Manu and the Dayabhaga already quoted. This is because impotency did dot formerly render mamage absolutely fruitless, as the impotent could appoint kinsmen to beget issue on their wives. This vicarious mode of fulfilling one of the primary objects of matrimony, being, however, interdicted* in the Kali or present age, it is doubtful whether impotency ought not now to be regarded as a disqualifying cause, especially as Parasara, the sage whose institutes are held to be pecuKarly authoritative in the present age,* in his cele- brated text® in favor of the remarriage of widows, allows a woman to take a second husband if the first is impotent. Among the inferior classes, impotence is a ground of dis- qualification formarriage.'^ Among the higher classes, hap- pily, the point has never been raised ; but some authorities hold that impotence in their case would not nullify marriage.' One having a The marriage of a person having a wife living is prohib- wife living — Polygamj'. ited in Christian countries ; but Hindu law permits poly- ' Manu, XI, 39. '^ Steele, p. J., 209. * See General Note to Manu. * Parasara quoted in Vidyasagar's Marriage of Hindu Widows, p.

though it does not approve the practice. It is true Lecture IL

Source page 57

43 though it does not approve the practice. It is true Lecture IL gamy, that polygamy is expressly allowed only under certain cir- cumstancesbut ; considering the nature of some of these cir- cumstances, andconsidering that a wife who speaks unkind- ly isallowed to be superseded without delay, it would follow that polygamy is not illegal in any case. Macnaghten," Strange,' and Shamacharan* consider polygamy prohibited except for allowable reasons ; and Pandit Iswarchandra Vidyasagar has cited the following passage of Manu,* — " For the first marriage of the twdce-born classes, a woman of the same class is recommended ; but for such as are im- pelled byinclination to marry again, women in the direct order of the classes are to be preferred : " A Sudra woman only must be the wife of a Sudra ; she and a Yaisya, of a Vaisya ; they two and a Cshatriya, of a Cshatriya : those three and a Brahmani, of a Brahman," — as authority for the position that one cannot have more than one wife of equal caste with him at the same time, except for certain allowable reasons; in other words, that polygamy such as now prevails is prohibited by the sastras. But his interpretation of the above text has called forth much hostile criticism and an elaborate rejoinder. It is not my object here to take part in this learned controversy as to what is the correct exposition of the above passage ; but I cannot help observing that the text quoted above refers not to the num- ber of wives that a man can have, but to the castes in which he can marry f and I think I can safely affirm that the prohibition against polygamy, such as is inferred from this and other texts, is merely directory and not imperative.^ ' Manu, IX, 77, 80, 81. • Principles of Hindu Law, 58. ' Hindu Law, Vol. I, 52. * Vyavastha Darpana, 672, * III, 12 and 13. « See Dyabhaga, Ch.

Lecture II. The practice has always prevailed among the Hindus, and it

Source page 58

The practice has always prevailed among the Hindus, and it reached its climax in Bengal as an incident of kulinism. This last-named institution has exercised its pernicious influence upon marriage for several centuries, but happily it is now fast becoming obsolete, and will soon become purely matter of history.^ It was established by Ballal Sen with a view to honor ' the deserving amongst the Brahmans in his kingdom ; but there is one radical error in the system which has ren- dered itan unmixed evil. The distinction is made heredi- tary, sothat though possessing no other merit, the descendant of a Jculin would rank as such, provided that no female in his family has been married to any but a kulin : while per- sons of the inferior class called vansaja, though they can never become kidins, are considered highly honored if they can marry their daughters to hulins. Hence, sometimes from fear of degradation, and sometimes from a desire to elevate their position, people were led to select kulin husbands for their daughters. Thus, while the kulins generally obtained a plurality of wives, the vansajas necessarily found it difli- cult to obtain wives, and were driven to the reprehensible practice of buying girls for marriage. One whose One whose elder brother is unmarried is considered in elder brother IS unmarried.

would render his marriage improper.' The above rule owes Lecture II.

Source page 59

FEMALES HOW FAR PARTIES TO MARRIAGE. 45 would render his marriage improper.' The above rule owes Lecture II. its origin to the influence of the joint family system. It is really no impediment to marriage, but rather operates as an inducement to it. For the marriage of every man thus becomes not only a necessity by itself, but a condition neces- sary for the marriage of his younger brothers. The rule, it appears, was never treated as anything more than a moral injunction ; and now with the disintegration of the joint family, and the consequent change of ideas and feelings, its force is becoming less and less. It is the only sacrament for women.^ Manu declares, — " Reprehensible is the father who gives not his daughter in marriage at the proper time ; " ' and other sages also declare the same thing.* As a consequence of this necessity for marriage, hardly any maiden is deemed absolutely disqualified for matrimony ; and the nuptials of daughters form a charge on their father's property,^ and a legal necessity for alienation by the widow.* I have said above that a woman is not regarded in Hindu Females how law as an active party in marriage.

Lecture II. swayamvara, or the selection of a husband by the damsel

Source page 60

Lecture II. swayamvara, or the selection of a husband by the damsel herself, which was a privilege accorded by kings to their favorite daughters, or in the case where the guardian neg- lects todispose of a girl in marriage, a female may become a party to the matrimonial contract/ But these are ex- ceptional cases. The early age at which a girl is enjoined to be married, makes her unfit to act as a party to the nuptial contract, and throws upon her guardian the sole responsibility of negotiating a proper match for her. ,,. Minors are not only eligible for marriage, but are the Minors. jo o ' fittest to be taken in marriage. Marriageable Regarding the marriageable age of a female, the higher O0 G for Si female. limit is definitely fixed. Manu, Brishaspati, Vasistha, Paithinasi, Kasyapa, and Vyasa all strictly enjoin that a girl must be given in marriage before puberty.^ As for the text of Manu, which says that * it is better that the damsel though marriageable should stay at home till her death, than that he (the father) should ever give her in marriage to a bridegroom void of excellent qualities/^ Raghunandana ex- plains itas being a prohibition against a bad match.* Prac- tically, fear of the conventional shame that attaches to a family in which a girl attains puberty before marriage, makes every father anxious to dispose of his daughter in marriage as early as possible. The lower limit of age is not exactly defined.

I ought here to add that the man-iage of a woman after Lectuue II.

Source page 61

47 I ought here to add that the man-iage of a woman after Lectuue II. she has attained puberty, though declared sinful, is not absolutely void, though some degree of blame is always attached to it. The necessity for early marriage and the future irrevo- GuardianHi.ip in niaiTia<xc. cability of the union make guardianship in marriage a matter of immense practical importance, and it forms a topic of discussion in the writings of the sages and the commentators. The order in which the right to guardian- ship in marriage vests in thp different relations of a girl, is given somewhat differently by different sages. Yajna- valkya, whose text is adopted in the Mitakshara, and is fol- lowed inall the schools except the Gauriya, declares, — " The father, paternal grandfather, brother, kinsman (sakulya), and mother, being of sound mind, are the persons to give away a damsel — the latter respectively on failure of the preceding."^ Raghunandana, the leading authority of the Bengal school on the subject of marriage, has, by a comparison of the above text of Yajnavalkya with the texts of two other sages, Vishnu and Narada, deduced the order of guardian- ship, which is the law in Bengal, and which may be stated thus : The father, paternal grandfather, brother, sakulya, ma- ternal grandfather, maternal uncle, and mother, if of sound mind, are entitled in succession to give a girl in marriage.* These two rules call for some remarks. In the first place, you may ask why it is that while all the schools equally acknowledge the authority of the sages, Bengal should fol- low one rule, and the other schools another, and how the * Yajnavalkya, I, 63 : see also 2 Strang-e, 28. ^ Udvahatattwa, Institutes, Vol.

Lecture II. second rule is deduced. As tliis is the first instance in

Source page 62

Lecture II. second rule is deduced. As tliis is the first instance in which these questions arise, I shall pause for a moment to answer them. The Mitakshara, though referring to other sages now and then for the purpose of illustration, is in the main a running commentary on Yajnavalkya, and accordingly in the present instance adopts the text of that sage as it finds it. Raghunandana, on the other hand, was a compiler of Hindu law, and as such, he was not bound to follow exclusively the text of Yajnavalkya, especially when he found that it assigned no place to the maternal relations who, for reasons not necessary to be here dwelt upon, had already acquired importance in the school to which he belonged.^ Accord- ingly he compares the text of Yajnavalkya with those of two other sages, Vishnu and Narada, which run thus :*— " A father, paternal grandfather, brother, sakulya, mater- nal grandfather, and mother are the givers of a damsel in marriage ; in default of the first, the next in order, if in the natural state of mind, is entitled to perform the cere- mony of gift." — Vishnu. " The father himseK will give the daughter (in marriage)' or her brother by the father's consent, the maternal grand- father, the maternal uncle, the sakulya, and relations in the maternal line, the mother in default of all (these), provided she be of sound understanding, otherwise the kinsmen of her father will give the daughter in marriage." — Narada. And he adopts as the basis of his rule, the text of Vishnu with this qualification only, that the maternal uncle is to have a place before the mother, as laid down in Narada's text. So much for the treatment of texts by commentators. > Compare the position of these relations in the order of succession in the Dayabhaga (Oh.

In the second place, you will observe that the order of Lecture II.

Source page 63

49 In the second place, you will observe that the order of Lecture II. guardianship in each of the foregoing rules differs from the order of guardianship for other purposes, and assigns a very inferior position to the mother, though > next to the father, she is the natural guardian of a girl in ordinary cases.* One reason for this seems to be the fact that in marriage, the guardian, or, as he is styled, the giver of the bride, has to perform certain religious ceremonies which the mother, being a female, is the least competent to perform. Perhaps a second reason for this is the fact that as marriage affects the social position of a family, the male relations of a girl are considered better qualified than her mother to provide a suitable match for her f and the dependence of women is a third reason for the same. Accordingly, in Ex parte Janki- prasad Agarwala,^ the Supreme Court of Calcutta held that the brother was the person entitled to give a girl in marriage in preference to the mother. But in a recent case* the above text of Yajnavalkya has received a construction which, to some extent, reconciles it with the natural rights of the mother. In that case, the plaintiff, a divided brother of the defendant's deceased husband, claimed an exclusive right to give in betrothal the infant daughter of his deceased brother, and to have a sum of money paid to him by the defendant for the expenses of the marriage. The High Court of Madras, in deciding against the plaintiff, appellant, observed :— " Upon reason and principle, therefore, and the applica- * Coleb.

Lecture II. tion of the existing law in regard to the independent posi-

Source page 64

Lecture II. tion of the existing law in regard to the independent posi- tion of the defendant, both as guardian and proprietor of the estate derived from her husband, we come to the con- clusion that the law does not warrant a declaration of the absolute right set up by the plaintiff. We are of opinion that the duty was enjoined on the husband's kinsmen in order to ensure the making of a suitable provision for the betrothal of daughters before reaching the age of puberty, just as it is declared to be their duty in the case of sons, to provide for the several ceremonies required to perfect the regeneration of a twice-born man. It appears to be so treat- ed by Jagannatha in the Digest, Sections 303 and 113, and that they were left to perform it like all other ' auspicious ' family ceremonies in harmony, if possible, with the mother and other members of the family. If on a choice being made of a person in every way suitable to be affianced, a mother, without sufficient cause, improperly refused to accept him, and obstructed the betrothal, a suit to compel her to allow the ceremony to take place, and if she was charge- able, to provide means for its celebration, would probably be successful. But no Court, we think, would be justified in granting such relief if the mother's refusal and resistance were because of serious objections to the person chosen, or for other good and sufficient cause, nor, we think, would the betrothal of a daughter with an unobjectionable person of the mother's selection be restrained at the suit of the brother, or other kinsman, of the father, who had been con- sulted bythe mother and had without any sufficient cause objected to the betrothal. It would seem from the express provision made by the law for the choice of a husband by the girl herself in case of neglect on the part of her rela- tives oftheir duty to betroth her for three years from tlie

time she became marriageable (Manu, Ch. IX, SI. 90, 91 ; Lecture II.

Source page 65

51 time she became marriageable (Manu, Ch. 36), that the duty does not amount to an enforceable legal obligation, and the effect of restrain- ing the betrothal in such a case would probably be to aid in thwarting betrothal before puberty, the very purpose for which the duty was enjoined. " The above decision, you will observe, also lays down the important rule that a guardian in marriage, having selected a fit and unobjectionable match, can by a suit compel the guardian of a girl's person to allow the marriage to take place, and can also compel the party chargeable to pay the expenses of the same. I may here tell you that the Hindu law relating to guardianship in marriage and the restraint on the freedom of choice on the part of the bride, resembles very much the Attick law on the subject. Jones observes :* " All unnecessary restraints upon love, which contributes so largely to relieve the anxieties of a laborious life, and upon marriage, which conduces so emi- nently to the peace and good order of society, are odious in the highest degree ; yet at Athens, whence arts, laws, humanity, learning, and religion are said to have sprung, a girl could not be legally united with the object of her affection without the consent of her controller, who was. either her father or her grandsire, her brother or her guardian." It has been held in the case of Maharxinee Ram Bunsee Koonwaree v. Maharatiee Soohh Koonwaree' that the word " mother " in the above texts does not include a stepmother. It has also been held in the same case that * Collected Works of Sir W.

Lecture II. where, as in the instance of the sakulyas, the order of

Source page 66

Lecture II. where, as in the instance of the sakulyas, the order of guardianship is not definitely laid down, the Court has the discretion to select a proper person as guardian ; and in the exercise of this discretion, the Court held that the paternal grandmother of a girl was preferable to her stepmother as her guardian in marriage. Though the father is undoubtedly entitled to dispose of his daughter in marriage in preference to all others, yet, under certain circumstances, he may lose this preferen- tial right. Thus, when he neglects to exercise it in proper time, and allows the daughter to remain for a long time unprovided with a husband, he forfeits the right alto- gether.^ So it has been held that a kulin Brahman, who has many wives, and visits the mother of his daughter after lono^ intervals of absence, durinoj which she continues under the guardianship of her mother, is not such a natural guardian of that daughter as her mother.^ This ruling is certainly not favourable to the prospects of knlinisTa, and is perhaps not in accordance with the strict letter of the Hindu law ; but it undoubtedly accords with the spirit of that law. A guardian may delegate his authority to another, and the delegated guardian will have the right to dispose of the ward in marriage. Such delegation may be presumed from the conduct of the parties.* Where there is no one authorized to give a girl in mar- riage, or where her guardians neglect to do so, she is allowed to choose her own husband ; but in the latter case, she must wait for three years after attaining the marriage- ' The King v. Kistnama Naick, 2 Strange's Notes of Cases, 89 ; 1 Nor- ton's Leading Cases on Hindu Law, L '^ Modhoosoodun Mookerjee t.

able age, that is the eighth year/ Speaking of this latter Lecture II.

Source page 67

53 able age, that is the eighth year/ Speaking of this latter Lecture II. case, Strange observes : " Though the law be so, it may be a question whether, according to modem practice, the right do not, in this case, continue to attach to the substitutes for the father instead of vesting in the girl."'^ Though the consent of the guardian is declared necessary with a view to secure a proper marriage, it has been held that the absence of such consent " would not invalidate a marriage otherwise legally contracted and performed with all the necessary ceremonies."^ This rule, however, seems to be too broad in its terms, and to require some qualification. No doubt, it does not protect forced or fraudulent marriages, for they are not marriages legally contracted ; but force and fraud are not the only grounds of objection. Apart from these, it is easy to conceive a case where a neighbour, or a distant relative, may, through mere recklessness, unite an infant girl in matrimony without the consent of her guardian, who may be her father ; and in such cases it would be gross injustice not only to the father, but also to the girl, to allow the union to last, when the father might have secured an incomparably better match for his daughter. With every regard for the indissoluble character of marriage, it would be more correct therefore to say that though the want of the guardian's consent would not necessarily invalidate a marriage otherwise legally valid, the guardian may, for any sufficient reason affecting the propriety of such marriage, obtain a declaration that it is void. This view of the law is to some extent supported by the decision of * Coleb. IV, 18 ; Manu, IX, 88, 90, 91. ' 1 Strange, 36. ' Modhoosoodun Mookerjee r.

Lecture II. the High Court in the case of Anjona Bossee v. Proladk

Source page 68

Lecture II. the High Court in the case of Anjona Bossee v. Proladk Ghunder Ghose,^ in which it has been held that the Courts have jurisdiction to declare a marriage void, if procured by fraud or force, and celebrated without the consent of the necessary parties. And the rule of the Hindu law is clear on the point. It is the gift of the bride (by which must be understood a gift with the consent of the legal guardian, express or implied), and not the mere ceremony of marriage, that forms the basis of the rights of the husband over the wife. For Manu declares, — " The re- citation ofholy texts, and the sacrifice ordained by the lord of creatures, are used in marriages for the sake of procur- ing good fortune to brides, but the first gift (of the bride) is the primary cause of marital dominion."- Betrothed girl. Regarding the fitness of girls already betrothed to others to be taken in marriage, there is some difference of opinion.^ Betrothment, however, is only a promise to give in mar- riage, and, as will be shown to you in the next Lecture, it is not irrevocable.

A woman whose husband is living is absolutely prohibit- Lecture II.

Source page 69

55 A woman whose husband is living is absolutely prohibit- Lecture II. ed to be married again. Hindu law does not permit poly- andry, and the practice exists only as a custom amongst P"*^. '"^'J'*® particular tribes in certain localities. The only instance •'^'^s- of polyandry among the Hindus is that of the mythical Draupadi ; but it has been the cause of much discussion in the Mahabharat,* and is regarded as an exceptional case. Not only is it prohibited in the institutes of the sages,^ but there is direct authority in the Vedas against such practice.' The marriage of a woman whose husband is living is not only illegal, but is an offence punishable under section 494 of the Indian Penal Code. The marriage of widows, though permitted by Parasara* Widows, and Narada,^ has never been the practice among Hindus. It is reprobated by Manu, who says, — " A widow w^ho, from a wish to bear children, slights her deceased husband by marrying again, brings disgrace on herself here below, and shall be excluded from the seat of her lord ;" ^ and it is prohibited for the Kali or the present age in the Pura- nas and other sacred writings.' Accordingly it has always been held to be prohibited by the Hindu law.® This rule of Hindu law has, however, been abrogated by Act XV of 1856 ; and a Hindu widow is now eligible for marriage under the provisions of that Act.

Lecture II. namely :— " The family which has omitted prescribed acts of

Source page 70

Lecture II. namely :— " The family which has omitted prescribed acts of religion ; that which has produced no male children ; that in which the Veda has not been read ; that which has thick hair on the body ; and those which have been subject to haemorrhoids, to phthisis, to dyspepsia, to epilepsy, to leprosy, and to elephantiasis ;" ^ and also a girl that is immoderatively talkative or sickly, or has visible defects, such as too much hair on the skin ; as well as one with the name of a constellation or of a river or other name raising an image of terror ; and likewise one who has no brother, or whose father is not well known.^ Now these rules are evidently not meant to imply any legal prohibition. If it were so, half the female population of India would be excluded from matrimony. But we are not left to decide for ourselves whether these rules are imperative or merely directory. The inconvenience of observing them as im- perative prohibitions must have been perceived long before our time. They were originally meant to be mere rules of caution and advice, and found a place in the Institutes as it is a mixed treatise on law, ritual and hygiene ; and so long as their real nature was known from tradition, they exacted their due share of obedience and caused no difficulty ; and when time had raised their sanctity, and it became necessary to invent reasons for excusing their non-observance, reasons were readily found. Thus, Kulluka Bhatta, in his commentary on these texts, remarks that they are prohibitions the violation of which would be improper, but would not invalidate the wifehood of the girls therein enumerated ; and his reason seems to be this, that wifehood or the matrimonial relation being a spiritual or abstract entity, cannot be affected by the violation of a rule having for its » 111,6,7. ^ 111,8,9,11.

reason the existence of defects that are perceptible by the Lecture IL

Source page 71

ONE WHOSE ELDER SISTER IS UNMARRIED. 57 reason the existence of defects that are perceptible by the Lecture IL senses ; and Raghunandan in his Udvahatattwa* adopts the same view. The foregoing rules, therefore, are of no value to the practical lawyer. For the scholar, they may possess some interest, as being evidence of the wisdom of the Hindus." But to the student of Hindu law they are of the highest value, as they serve to illustrate the nature of that law, and the manner of its elaboration by commentators in their attempt to reconcile practice with precept. A girl whose elder sister remains unmarried is declared One whose elder sister not eligible for marriage.* This rule is not peculiar to is unmarried. the Hindu law, but is to be found in other archaic systems such as the Jewish.* A girl married contrary to this rule is called agre didhisu, and her elder sister didhisu. This rule is analogous to the corresponding rule in the case of males, and the remarks made there would apply here, Tnutatis tnutandis, with this difference, that considering the express declaration of commentators on the subject, it is doubtful whether the violation of the rule in this case would not invalidate the marriage.

Woman of the To Understand this rule properly, you must know what

Source page 72

A woman belonging to the same gotra, or primitive stock, is prohibited to be taken in marriage by a man of any of the three twice-born classes/ Woman of the To Understand this rule properly, you must know what ^ r r j ^ j same gotra. gotra is. It comes from go (a cow), and meant originally an enclosure for kine. Max Miiller points out the connection between its etymological and secondary meanings thus : " In ancient times, when most wars were carried on, not to maintain the balance of power of Asia or Europe, but to take possession of good pasture, or to appropriate large herds of cattle, the hurdles grew naturally into the walls of fortresses, the hedges became strongholds ; Anglo-Saxon twn, a close (German Zaun) became a town ; and those who lived behind the same walls were called a gotra, a family, a tribe, a race."- Gotra, as used in the above rule, means a family descended from one of the several patriarchs, who are, according to some, twenty-four, and according to others, forty-two in number ;^ so that, taking the higher estimate, there are forty-two gotras in all. Now, since a woman by her marriage passes from her father's gotra to that of her husband, * therefore, in order that two persons may be of the same gotra, each of them must be descended from the com- mon patriarch through an uninterrupted line of males. As these patriarchs, or founders of gotras, were Brahmans, the Kshatriyas and Vaisyas (except, perhaps, those who are de- scended from Brahman fathers and mothers of their own classes, and who are held by some to belong to the same classes respectively as their mothers^), can have no gotra of ' Manu, III, 5. One is also prohibited to marry a girl of a gotra having the same pravai'as, or principal sages, as his own; see Udvahatattwa. ' Chips from a GTerman Workshop, Vol.

their own. But they having adopted the gotrasof the spiri- Lecture II.

Source page 73

But they having adopted the gotrasof the spiri- Lecture II. tual guides or family priests of their remote progenitors,* Manu applies the foregoing rule to all the three twice- born classes alike. The case of the Sudras, however, is different. In early days, when it was thought improper to officiate at the reli- gious ceremonies of the Sudras,^ the Sudras could have had BO family priests, and consequently, they did not belong to any gotra. And though in course of time Brahmans have been induced to become family priests of that class, and the Sudras have in some places, as in Bengal, got themselves affil- iated to different gotras, yet that is not considered suffix cient to make the above prohibition applicable to them.^ The above rul^ is imperative in itS' nature, and a marriacje celebrated in violation of it is null and void.* " He who inadvertently marries a girl sprung from the same original stock with himself, must support her as a mother." So says Bandhayana.* And in the Udvahatattwa, several other texts are quoted to the same effect. The reason for the prohibition of marriage in the same primitive stock has been the subject of much speculation and controversy. But it would be out of place here to enlarge upon this subject.

Lecture II, ship, commonly called the prohibited degrees, are

Source page 74

Lecture II, ship, commonly called the prohibited degrees, are not to be taken in marriage by him. Marriage between near blood relations is so universally repugnant to our feelings, that every system of law has its rule of prohibited degrees. The prohibition is also extended by analogy more or less to relations by affinity, fosterage, and adoption. I shall first of all give you the rules regard- ing prohibited degrees in the Hindu law, and then compare them with those of other systems. These rules are chiefly based upon the following texts :— I. " She who is not descended from his paternal or maternal ancestors within the sixth degree (sapinda), and who is not known by his family name to be of the same primitive stock with his father or mother, is eligible by a twice-born man for nuptials and holy union." — Manu, III, 5. She is called his Sapinda who has (particles of) ' Mitaksliara (Saus.) Acharadhyaya, leaf 6 et scq.

the body (of some ancestor, &;c.,) in common (with him). Lecture II.

Source page 75

61 the body (of some ancestor, &;c.,) in common (with him). Sapinda-relationship arises between two people through their being connected by particles of one body. Thus, the son stands in Sapinda-relationship to his father, because of particles of his father's body having en- tered (his). In like (manner stands the grandson in Sa- pinda-relationship) tohis paternal grandfather and the rest, because through his father, particles of his (grand- father's) body have entered into (his own). Just so is (the son a Sapinda-relation) of his mother, because parti- cles of his mother's body have entered (into his). In like manner, brothers' wives also are (Sapinda-relations to each other), because they produce one body (the son), with those (severally) who have sprung from one body (i. e., because they bring forth sons by their union with the offspring of one person, and thus their husbands' father is the common bond which connects them).

Lecture II. " In the explanation of the word 'asapindam' (non-Sa-

Source page 76

Section 53 — ' After the fifth an- cestor on the mother's, and after the seventh on the father's side

Lecture II. " In the explanation of the word 'asapindam' (non-Sa- pinda, verse 52), it has been said that Sapinda-relation arises from the circumstance that particles of one body have entered into (the bodies of the persons thus related), either immediately or through (transmission by) descent. But inasmuch as (this definition) would be too wide, since such a relationship exists in the eternal circle of births, in some manner or other, between all men, therefore, the author (Yajnavalkya) says, v. 53 :—' After the fifth an- cestor on the mother's, and after the seventh on the father's side.' On the mother's side, in the mother's line, after the fifth ; on the father's side, in the father's line, after the seventh (ancestor), the Sapinda-relationship ceases ; these latter two words must be understood ; and, therefore, the word Sapinda, which on account of its (etymological) import ' (connected by having in common) particles (of one body) ' would apply to all men, is restricted in its significa- tion, just as the word pankaja (which etymologically means ' growing in the mud,' and therefore, would apply to all plants growing in the mud, designates the lotus only), and the like ; and thus the six ascendants beginning with the father, and the six descendants beginning with the son, and one's self (counted) as the seventh (in each case), are Sa- pinda-relations. In case of a division of the line also, one ought to count up to the seventh (ancestor), including him with whom the division of the line begins (e. g., two col- laterals Aand B are Sapindas, if the common ancestor is not further removed from either of them than six degrees), and thus must the counting of the (Sapinda-relationship) be made in every case." * ' The above translation is taken from West and Biihler's Digest, Part 1, pp.

I ought to add here that the word sapinda has, in other Lecture IL

Source page 77

63 I ought to add here that the word sapinda has, in other Lecture IL places, a meaning different from what is given above. Thus in the chapter on inheritance in the Code of Manu (IX, 186, 187) a sapinda means one who is related within the third degree : the sapinda relation being there based not on connection through one common body, but on connection through common oblation/ III. " One must not marry a girl of the same gotra or pravaras, or as far as the fifth in degree from the mother and seventh from the father." — Vishnu Sutra, cited in the Udvahatattwa. IV. " Girls descended from the father's or mother's handhus are not to be taken in marriage as far as the seventh and fifth respectively, as well as those of the same gotra or of equal pravaras." — Narada, cited in the Udvaha- tattwa. The word handhu, which occurs in the above text, has been defined in a text quoted anonymously in the Udvahatattwa, which runs thus :— " The sons of his father's paternal aunt, the sons of his father's maternal aunt, and the sons of his father's mater- nal uncle, must be considered his father's handhus. The sons of his mother's maternal aunt, the sons of his mother's paternal aunt, and the sons of his mother's maternal uncle, be reckoned his mother's bandhus." ^ must From these texts and a few others, commentators have deduced the following rules :— Rule I.— (a.)— The female descendants as far as the seventh degree, " from the father and his six ancestors, namely, the paternal grandfather, &lc., ' See Dattaka Chandrika, Sec.

Lecture II. (h.)— The female descendants as far as the seventh de-

Source page 78

Lecture II. (h.)— The female descendants as far as the seventh de- gree, from the father's handhus and their six ancestors, through whom those females are related, (c.)— The female descendants as far as the fifth degree, from the maternal grandfather and his four ancestors, namely, the maternal great grandfather, &c., and (d.) — The female descendants as far as the fifth degree, from the mother's handhus and their four ancestors, through whom those females are related, are not to be taken in marriage.^ Rule II. — A stepmother's brother's daughter and his daughter's daughter are not to be taken in marriage.^ Clauses (a) and (c) in Rule I are clear enough ; but clauses (h) and (d) may require a word of explanation. Then, as defined above, the father's ma- ternal aunt's son is one of the father's handhus ; and the rule excludes his female descendants within the seventh degree. It also excludes the female descendants (within the same degree) of each of his six ancestors in a certain Hne, — namely, that in which those female descendants are connected by blood with the intending husband. This line must, therefore, be the handhu's maternal line, for his paternal line is not connected by blood with the bride- groom ;and the six ancestors in question would be the handhu's mother, his maternal grandfather, maternal great grandfather, &;c., and not the handhu's mother, his mother's mother, &;c. ; for though these females are connected by blood with the bridegroom, a line of female ancestors is not regarded as a line in the Hindu law. The same is to be ' .Udvahatattwa, Raghunandan"s Institutes, Vol.

understood in the case of any other handhu, whether of Lbctube II.

Source page 79

65 understood in the case of any other handhu, whether of Lbctube II. the father or of the mother. Clauses (h) and (d) may be illustrated by the following diagram, — where A is the bridegroom ; M and F with the several suffixes denote males and females respectively, Mi and Fi being the father and the mother of A; and Bj, 62,63, denote the three bandhus of the father, and B', B'\ B"\ the three handhus of the mother. The girls prohibited under clauses (6) and (d) would be the female descendants (within the seventh degree) of Bj, Bg, B3, and of each of their six ancestors that are represented in the scheme ; and the female descendants (within the fifth degree) of B', B'', B'", and of each of their four ancestors that are represented there. Mir ^21 M A 16 ^^2Q Mi5 M19 F5 M,, Fg F, M B' Fi B" B ; It will be seen from the above, that in Kule I, the ex- clusion ofcollateral relations from eligibility for marriage is carried rather too far, and intermarriage is prohibited between relations who may be practically regarded as

Lecture II. strangers. Consequently, that rule has been qualified by

Source page 80

Consequently, that rule has been qualified by the following exceptions :— Exception I. — A girl who is removed by three gotras from the bridegroom is not unmarriageable, though related within the seven or &ye degrees as above described.^ The three gotras in the case of the descendants of a handku are always to be counted from his (handhius) own gotra. So also, in the case of the descendants of the ancestors of a bandhu, who is the father's or the mother's maternal uncle's son, they are to be counted from the handhu's own gotra. But in the case of the descendants of the ancestors of each of the other handhus, the three gotras are to be counted from his (handhvJs) maternal grandfather's gotra. This exception is based upon a text of Brihat Manu, and another of the Matsya Purana, cited in the Udvahatattwa.^ To understand it, you must bear in mind that mar- riage effects change of gotra in a female by transferring her from her father's gotra to that of her husband. The exception may be illustrated by the following example :— Suppose the paternal great grandfather of the bridegroom to be of the Sandilya gotra ; his daughter (by transfer by marriage) to be of the Kasyapa gotra ; her daughter, of the Vatsya gotra ; and this daughter's daughter to be of the Sha- radwaja gotra : the maiden daughter of this last, being of the Bharadwaja gotra, and being beyond three gotras, viz, the Sandilya, Kasyapa, and Vatsya, is eligible for marriage, though within the prohibited degrees in Rule I (a). Exception II. — When a fit match is not otherwise pro- curable, the Kshatriyas in all the forms of marriage, and the other classes in the Asura and other inferior forms of mar- riage, may marry within the above degrees, provided that * Raghimandana's Inst., Vol.

they do not marry within the fifth degree on the father's Lecture II.

Source page 81

Section 664 — » 2 Strange's Hindu Law, p, 165

67 they do not marry within the fifth degree on the father's Lecture II. side, and the third degree on the mother's. Tliis exception is based on the authority of Sulpani, but Raghunandana differs from him. It is, however, supported by a text of Paithinasi and another of Sakatayana, and is generally considered to be a valid exception.^ Besides these two, various other exceptions have been in- troduced, and they are all regarded as valid if sanctioned by custom, according to the doctrine of the Chaturvingsati, or the twenty-four sages.^ Thus, in the South of India, intermarriage with the daughter of a maternal uncle is not only allowed, but is considered desirable.^ In the case of a person whose filial relation has been chang- ed by adoption, as well as in the case of his descendants, while the above rules about prohibited degrees continue in full force with reference to their relations by consanguinity, the same rules a^ply with regard to relations in the families of the adoptive parents in the same way as if the adopted son were their legitimate son.* There may, however, be some difficulty in fixing the maternal line by adoption. If the adopting father has only one wife,, she is considered the adoptive mother; if he has more wives than one, but joins with one of them only in the ceremony of adoption, or if only one of them takes the child with his permission, then, too, she is considered as the mother by adoption. But where th<e adopter has several wives,, and does not join with any one of them, in the act ' Shama Charan's Vyavastha Darpana, pp. 664. » 2 Strange's Hindu Law, p, 165.- * Dattaka Chandrika, Sec.

68 PARTIES TO MARRIAGE.

Source page 82

Lecture II. of adoption, it is not settled which of them is to be- come the adoptive mother, though some maintain that they all equally become his mothers, and that, conse- quently, hemust have as many maternal lines as there are mothers. 1 The rules as to prohibited degrees, subject of course to the exceptions noticed above, are absolutely imperative in their nature, and would nullify any marriage contracted in contravention of them.^ Prohibited de- The prohibited degrees in the case of collaterals extend grees in differ- ent systems much further in the above rules than they do in other compared. systems, such as the Jewish,^ the Roman,* the English,^ the French,^ and the Mahomedan.'^ In none of these does the prohibition of marriage between collaterals extend further than to marriages between brother and sister, uncle and niece, aunt and nephew, and great-aunt and grand-nephew. In the direct line, marriage is prohibited between ascend- ants and descendants, in all these systems. This prohibi- tion, as you have seen, is not to be found in so many words in the Hindu law. But the above rules of Hindu law embody such prohibitions to an extent which is sufficient for all practical purposes. For one of the rules given above prohibits marriage with any female descendant with- in the seventh degree from the father ; and this must be ' Colebrooke's Digest, Bk.

practically a sufficient prohibition in all cases as regards Lecture II.

Source page 83

69 practically a sufficient prohibition in all cases as regards Lecture II. females in the descending line. As for females in the ascending line, widow marriage being prohibited, no further prohibition was necessary. And though widow marriage has been now legalized, the prohibition of marriage with sapindas would be practically sufficient for such cases. The prohibition by reason of affinity, which exists in other systems, has no place in Hindu law. But the prohi- bition ofmarriage with sapindas to some extent supplies its place, and so did the prohibition of widow marriage. The prohibition on the ground of adoption resembles, to some extent, the corresponding provision in the Roman law,^ and the prohibition by reason of fosterage in the Maho- medan law.^ The reason why marriage between cousins-german, though allowed in so many other systems, is so repugnant to the feelings of a Bengali, is to be found in the peculiar mode of naming those relations in our language.

Lecture II. sidered as belonging to the brother's class, and are styled

Source page 84

Lecture II. sidered as belonging to the brother's class, and are styled brothers (being called brothers through the -ancle or the aunt, or other relation as the case may be) ; and all female relations in the same degree are styled sisters. And hence marriage between cousins-german sounds in a Ben- gali's ear as repugnant as that between brother and sister. This will not, however, account for the extensive rule of prohibited degrees in the collateral line, for the nomencla- ture of relations in the Sanskrit is not one in the classifica- tory mode. To find out the true reason for the rule in Hindu law, let us first of all ascertain the reason for the rule of prohibited degrees in general. It is thought by some that the rule is based upon physical grounds, and that it is meant to prevent that physical degeneracy of the race which marriages between near relations would lead to. But there is a still stronger reason for the rule : it is intended to prevent moral degeneracy and consequent social evils which would otherwise result.

ual preceptor or pupil in the Vedas. A text of the Mat- s^<ie or pupil,

Source page 85

71 confidence — the tenderest sentiments of the heart would be Lecture Tl. quenched — eternal enmities or vengeance, of which the bare idea is fearful, would take their place. The belief in the chastity of young girls, that powerful attraction to marriage, would have no foundation to rest upon ; and the most dangerous snares would be spread for youth in the very asylum where it could least escape them." Now you will at once see the bearing of these remarks upon the state of Hindu society at the time when the rules in question were framed. The Hindus in those days lived in joint families and under the same roof for generations together ; and their remote collaterals (of course, on the paternal side only) were brought into contact in the same way as brothers and sisters in modem society. A man is prohibited■^ to marry the daucrhter of his spirit- l>a"ghter of ^ o IT one 3 spiritual ual preceptor or pupil in the Vedas. A text of the Mat- s^<ie or pupil, sya Sukta, cited in the Udvahatattwa, says : " The marriage with a girl of equal pravaras, or with a daughter of a pupil, or of the guru who instructs in the Vedas, is prohibited." A Hindu's repugnance towards such marriage is strikingly illustrated by the story of Devajani in the Adiparva of the Mahabharata. The reason for this rule is to be found in the nature of the relation between pupil and preceptor in the early days of Hinduism, In those days, the student of the Vedas had to live for a series of years in the house of the preceptor ; and to prevent all chance of illicit intimacy with the preceptor's daughters, connection with them was de-

Lecture II. clared incestuous. The Acharya (teacher), moreover, was

Source page 86

The Acharya (teacher), moreover, was regarded in the same light as a father/ But Vaidik edu- cation has become nominal now, and is completed by the student learning to repeat the Gayatri ; and though at the Upanayana, an Acharya is appointed for the neophyte for form's sake, one seldom remembers afterwards who his Acharya was. As the place of the Vaidik preceptor is now in most cases supplied by the Guru; who imparts the mystic TantHc mantra, some think that, by parity of rea- son, the above prohibition ought to extend to the case of the Tantric Guru as well.^ But, considering all the cir- cumstances, itis very doubtful whether at the present day a Court of Justice would in any case consider the rule as anything more than a mere moral injunction. Girl bearing A man is likewise prohibited to marry a girl who bears came. the same name as his mother. This rule is so imperative that if one inadvertently marries in violation of it, he is re- quired toforsake the wife entirely and to perform penance. Considering, however, the fact that if the objection on the score of name is discovered after betrothal, Hindu law allows the marriage to take place on the birde's name being changed,* it is doubtful whether, after marriage has taken place, a Court of Justice would regard this rule as more imperative than most other rules of the same class. directs that a man should marry a dam- Girl older in Yajnavalkya* *°®* sel younger than himself The exercise of marital author- ity, and the implicit obedience that is held to be due to it, appear to a Hindu so incompatible with seniority in * Manu, II, 171. * See Shama Charan's Vyavastha Darpana, p. 665, note. * Udvahatattwa. ♦ I, 52.

wife, that in practice this rule is never departed from ;* Lecture II.

Source page 87

73 wife, that in practice this rule is never departed from ;* Lecture II. the and the early age at which Hindu females are required to be married, renders the occasions for such deviation extremely rare. But the rule seems to be only directory in its nature, and it can hardly be expected that its violation would nullify a marriage already celebrated. A girl belonging to a different caste is prohibited to be Girl beiongincr . to a different taken in marriage in the present (Kali) age. Formerly, in- caste, termarriage between persons of different castes, though not approved, was permitted according to the following text of Manu :*--- " For the first marriage of the twice-born classes, a wo- man of the same class is recommended ; but for such as are impelled by inclination to marry again, women in the direct order of the classes are to be preferred." " A Sudra woman only must be the wife of a Sudra ; she and a Vaisya, of a Vaisya ; they two and a Kshatriya, of a Kshatriya ; those three and a Brahmani, of a Brahman." But though a woman of any caste was allowed to be married to a man of a higher caste, her marriage with one of a lower class was greatly discountenanced, and the children of such marriage were called low-born.^ Upon the authority of certain texts of the Puranas, inter- marriage between different castes is now absolutely pro- hibited,* and the practical question now in such cases is, what constitutes a difference of caste sufficient to prevent intennarriajje. Caste, in the days of the Vedas, was an ethnological dis- tinction. There were then two great castes, the Aryas, or the ■ See Steele, 161. « IV, 12 and 13. • Manu, X, 41. * See Udvahatattwa, Institutes of Raghunandan, Vol.

Lectuke II. fair-complexioned new settlers, and the Dasyus, sometimes

Source page 88

Lectuke II. fair-complexioned new settlers, and the Dasyus, sometimes called the Sudras, or the dark-complexioned aborigines. Var- 7ia, literally colour, was then a strictly appropriate word for caste. Gradually, as the Aryas, according to their occupa- tions, divided themselves into the three classes of priests, warriors, and traders or agriculturists, there arose the four- fold division into Brahmans, Kshatriyas, Vaisyas, and Sudras.^ By intermarriage among these castes, which was then allowable, there arose a number of mixed classes, which have been treated of in the tenth chapter of Manu ; and further, by a division of the Sudras according to their occupations, there arose a number of sub-castes, such as the Karmakars (blacksmiths), the Tantis (weavers), the Kumars (potters), &;c. Whether some of the castes, such as the Kayasthas and others, are really Sudras or not, whether the Vaidyas are a mixed class or are genuine Vaisyas, and whether the Kshatriya class still exists,^ are questions which are sometimes keenly contested at the present day. Such being the nature and origin of caste, it has been sometimes held that the prohibition of intermarriage applies only with reference to the four primary castes, and is inap- plicable tothe sub-divisions of the Sudra caste. Thus, in the case of Fandaiya Telaver v.

classes or tribes does not seem opposed to marriage between Lecture II.

Source page 89

7') classes or tribes does not seem opposed to marriage between Lecture II. individuals of different sects or divisions of the same class or tribe, and even as regards the marriage between individ- uals of a different class or tribe, the law appears to be no more than directory. Although it recommends and incul- cates amarriage with a woman of equal class as a preferable description, yet the marriage of a man with a woman of a lower class or tribe than himself, appears not to be an invalid marriage, rendering the issue illegitimate. According to this view of the law, there being no proof of special custom or usage, the marriage would be valid, even though the parties had been of different sects or caste divisions of the fourth or Sudra class." And Mr. Justice Holloway in his judgment in the same case remarked : " Moreover, it is not invalid if it took place, because of the difference of class. As the twice- born man is instructed to marry a wife of the same class with himself, the reasonable inference is that, upon one not twice-born, the precept is not binding. " Further, I am clearly of opinion that the classes spoken of are the four classes recognized by Manu, and not the infinite sub-divisions of these classes introduced in the prog- ress of time. I think, therefore, that being a Sudra, the woman was of the same class in the sense of the authority quoted." On appeal, the Privy Council, though not concurring in all that has been said in the judgment of the High Court, made the following observations :* — " Then, if there was a marriage in fact, was there a mar- » 3 B.

Lecture II. riage in law ? When once you get to this, viz., that there

Source page 90

When once you get to this, viz., that there ' was a marriage in fact, there would be a presumption in favor of there being a marriage in law. The zemindar, according to the usages of his country and nation, on part- ing with his first wife, would be naturally desirous of marrying again and having male issue. " It would be a most unlikely thing for a person of his race? to go through the ceremony of marriage, if it was known that that marriage was a marriage which was invalid in law. Then upon what is it that the invalidity of the marriage in law depends ? It depends upon this, and upon nothing else, viz., that all the parties being, as is clear from the evidence, of the Sudra caste, it is said that because it is shown by a decree that the father of the mother of the present plaintiff and respondent was illegitimate, therefore the child of that father could not contract a valid marriage, and was in sub- stance of no caste at all. The opinions are matter of reasoning ; and where they refer to authority, it is to author- ity which applies to persons of two different but higher castes, not to the Sudra caste at all, and still less to what may be called different classes or divisions of one and the same Sudra caste. " Their Lordships are not aware that there is any authority. There has been none quoted, and it does not appear that there is any authority supporting any such proposition as that which is contended for by the Pundits ; and though their Lordships do not agree in ever3rfching that has been stated in the Court of Appeal, they are satisfied that in the Sudra caste illegitimate children may inherit, and have a right to

maintenance ; and that in this very instance the illegitimate Lecture II.

Source page 91

77 maintenance ; and that in this very instance the illegitimate Lecture II. father of the mother of the plaintiff, as well as his daughter, were treated as members of the family ; and on the whole, seeing that these parties are both of the Sudra caste, and that the utmost that has been alleged really is, that the zemindar was of one part of the Sudra caste, and the lady to whom he was married was of another part, or of a sub-caste, their Lordships hold the marriage to have been valid ; to hold the contrary would, in fact, be introducing a new rule, and a rule which ought not to be countenanced." Here it should be borne in mind that this was a case in the Madras Presidency, where, especially among the classes to which the parties to the suit belonged, caste distinctions are not so rigidly observed as in other parts of India ; and that the Privy Council viewed the question in this case as a mixed one of law and fact, with especial reference to the particular facts of the case. But in Bengal, at least, the practice is very different. Here, except where custom has sanctioned otherwise, absolute equality of caste in the parties is necessary for marriage, and no prohibitory rule in marriage is more strictly observed than this ;^ and the weight of judicial authority seems to be in conformity with practice. Thus, in a case in which a DoTYie Brahman had. married a girl of the Haree caste, the High Court of Bengal held that " local custom is the only authority by which such marriage can be sanctioned, the general Hindu law being against it."*^ And in a recent case,-^ where the legality of a marriage between a man of the Kaivarta and a woman of the Tantee caste was one of the points for decision, Mr. ^ Shama Cham's Vyavastha Darpana, p.

Lectube II. Justice Romesh Chunder Mitter held that, as the parties

Source page 92

Justice Romesh Chunder Mitter held that, as the parties were of diiFerent castes, a valid marriage between them was impossible, unless sanctioned by any peculiar custom govern- ing them ; and though Mr. Justice Markby expressed a doubt on the point, he concurred in remanding the case to the first Court to try whether by any usage or custom there could be any valid marriage between the parties in question. According to the opinion of some of the Bombay Sastris, as we learn from Steele,* " Should the husband prove of lower caste, provided Gurbhadhan has not been performed, the girl is to perform Prayuschit, and be remarried ; and this is the only case in which a woman can be married a second time. . . . But if Gurbhadhan has been performed, the wife must remain with her low-caste husband. Should the wife prove of lower caste, the husband must perform Prayuschit, and she may be repudiated with maintenance." Daughters of In the Madras case above referred to, the principal ques- illegitimate persons. tion raised was, whether the daughter of an illegitimate person, being an outcast, — that is of no caste, — could be taken in marriage by a man of any caste among the Sudras. The question was answered in the affirmative, on this, among other grounds, that illegitimacy by itself is no disqualification for caste ; and the Privy Council, as you have seen from the portion of the judgment already quoted, concurred in this answer.

to two different castes. But even in these cases, Lectuke II.

Source page 93

But even in these cases, Lectuke II. belonging which, however, are by no means common, the child, if recog- nized by relatives and others as belonging to the caste of either parent, is married in that caste, though the family that connects itself by such alliance becomes lowered in social estimation. And it may perhaps be laid down as a general rule, that so far as the prohibition of intermarriage between different castes is concerned, a marriage would be valid or void according as the parties to it are or are not in point of fact recognized as belonging to the same caste, irres- pective ofthe propriety of such recognition. Besides the relative disqualifications enumerated above, there are several others based on astrological considerations, which are avoided in order to render marriage auspicious and happy.^ They do not affect the legality of a marriage, though they may excuse the non-performance of an executory contract of marriage. To sum up then the substance of this Lecture, most of the Effect of dis- qualification on rules about disqualifications for marriage are in the nature of marriage already com- directions for regulating choice in matrimony, which it pieted. would certainly be improper to disregard, and which would be duly considered by the Courts in deciding suits relating to executory contracts of marriage, whether they are suits for specific performance, or for compensation, or the like. But excepting the disqualifications arising from difference of caste, identity of gotra, and relationship within the pro- hibited degrees, no other disqualification would, it seems, be held by a Court of Justice to be sufficient to invalidate a marriage already completed and otherwise valid. * See Steele, pp.

LECTORE III.

Source page 94

FORMS OF MARRIAGE AND FORMALITIES REQUISITE FOR A VALID MARRIAGE. Different forms of marriage in Hindu law — Brahma — Dav^a — Arsha — Prajapaiya — Asura — Gandharba — Rakshasa — Paisacha — Mode of cnntracli'>g marriage — Betrothment — Its legal effects — Specific performance of contract of betrothal — Agreements in restraint of marriage — Marriage brokerage contracts — Cere- monies attending marriage — Necessity of their observance — Time for celebra- tion ofmarriage — Consummation — Questions of validity of marriage how far cognizable in the Courts. Different In this Lecture I shall describe the different forms of forms of marriage in marriage in Hindu law and the formalities necessary for Hindu law. the same. Owing to the large extent over which Hindu society is spread, and the dissimilar elements of which it is composed, different forms of marriage have always been prevalent among the Hindus. Apart from those legalized by custom, the Hindu law recognizes eight distinct forms. The Brahma form is thus described by Manu :— " The gift of a daughter, clothed and decked, to a man learned in the Veda, whom her father voluntarily in- vites and respectfully receives, is the nuptial rite called Brahma."2 (III, 27.) According to Manu and Yajnavalkya, the son born of a * See Manu, III, 21—41 ; Yajnavalkya.

The Baiva marriage is thus described :—

Source page 95

81 Brahmi, or wife by such marriage, redeems from sin ten Lecture III. ancestors, ten descendants, and himself. It is called the Brahma form, because it is the form peculiarly fit for Brahmans ; and it is the only form now " practised by good men."* Though originally intended for Brahmans only, the Brahma form has now been held to be legal even among Sudi'as.* It must not be confounded with a modern form of marriage, which also is called Brahmxji mar- riage, and is the form adopted by some members of the sect called the Brahmos. It is the best form of marriage in Hindu law, and, no doubt, indicates an advanced stage of social progress. This form of marriage disagrees with the enlightened modern notions on the subject only in this, that the bride here is the subject of gift instead of being one of the contracting parties. No doubt, the best form of marriage is that in which the bride makes a voluntary gift of herseK to the bridegroom. The Baiva marriage is thus described :— j^^.^^ " The rite which sages call Daiva, is the gift of a daughter whom his father has decked in gay attire when the sacri- fice isalready begun, to the ofiiciating priest, who performs that act of religion." (Manu, III, 28.) Jagannath, following Sulpani's commentary on Yajnaval- kya, describes the Daiva form as that in which the damsel is given to the family priest attending a sacrifice at the time when the sacrificial fee should be given.* ' Coleb.

Lecture III. The male issue of such marriage is said to redeem from sin

Source page 96

82 FORMS AND FORMALITIES OF MARRIAGE. The male issue of such marriage is said to redeem from sin seven ascendants and seven descendants. It is the second form in order of merit, and marks that stage of Hindu society in which the performance of great sacrifices was most common. This form also was peculiar to the Brahmans, but it is now obsolete. The third form according to Manu, namely, the Arsha, is thus described by him : " When the father gives his daughter away after having received from the bridegroom one pair of kine, or two pairs, for uses prescribed by law, that marriage is termed Arsha." (Ill, 29.) The cattle here constitute the price for the bride, and the taking of this price renders this form, though the third in order of enumeration, inferior to the next or the fourth form, as you will presently see; and, accordingly, the number of persons redeemed by the male offspring of such marriage is only six, while the corresponding number in the next form is twelve. It means the ceremony of the Rishis, and is, perhaps, indicative of the pastoral state of Hindu society when free gift of daughters in marriage was not common, and cattle formed the pecuniary consideration for the gift.

l^AJAPATYA AND ASURA FORMS. 83

Source page 97

83 The fourth form called the Praja'patya is, according to Lecture in Manii, that in which the father gives away his daughter with Projapatya. due honor, saying distinctly — " May both of you perform together your civil and religious duties." (Ill, 30.) This is, however, not very easily distinguishable from the Brahma form, and to find out the distinction, we must look to the description given by Yajnavalkya. According to him, when the father gives his daughter to a suitor saying, " perform all duties together," the marriage is called Kaya or Prajapatya^ It is the fact of the bridegroom being a suitor, an applicant for the bride's hand, that distinguishes this form from the Brahma, and makes it inferior to the latter, in which the bridegroom is voluntarily invited by the father to accept the bride. Marriage being according to Hindu notions a gift, loses a portion of its merit if the gift is not voluntary, but has to be applied for. It is called the Kaya or PrajajMtya, as being the ceremony of the Kas or Praja- patis, that is, lords of created beings or progenitors of man- kind.^ This form also was peculiar to the Brahmans. This and the three preceding are regarded as the four approved forms of marriage. The fifth form, Asura, is that in which " the bridegroom, Asura, having given as much wealth as he can afibrd to the father and paternal kinsmen and to the damsel herself, takes her voluntarily as his bride." (Manu, III, 31.) Being an avowed sale of the bride for a pecuniary con- sideration, itis no doubt a base form of marriage ; and though according to some it is permitted to the mercan- ' Yajnavalkya I, 60 ; Coleb.

Lecture III. tile and servile classes,* the two lowest in Hindu society,

Source page 98

'8i FORMS AND FORMALITIES OF MARRIAGE, Lecture III. tile and servile classes,* the two lowest in Hindu society, Manu prohibits it altogether.^ " But even a man of the servile class/' says he, " ought not to receive a gratui- ty when he gives his daughter in marriage, since a father who takes a fee on that occasion, tacitly sells his daughter,"^ and the same prohibition is repeated in other places.* It is called the A sura form, as being the ceremony of the A suras, or the aboriginal non- Aryan tribes of India. It marks a very low state of society. But the practice of taking a fee for giving one's daughter in marriage seems at one time to have been very common. Maine, " went to the bride's father as compensation for the patriarchal or family authority which was transferred to the husband."* " A woman," observes Herbert Spencer, " is of value not only as a wife, but also as a daughter ; and all through, from the lowest to the highest stages of social progress, we find a tacit or avowed claim to her services by her father. Strange, it is questionable whether in Southern India, » Manu, III, 24. 2 m^ 25. » IX, 98. ' III, 51. * Eajrly History of Institutions, 324. ^ Sociolog-y, p, 655. ■^ Norton's Leading Cases, Part I, p.

any other form than the Asura be now observed.* In Lecture III.

Source page 99

85 any other form than the Asura be now observed.* In Lecture III. The form is equally prevalent in the Western Presidency. Justice West makes the antecedent proba- bility in favor of its prevalence one of the grounds for finding that a certain marriage among the caste called the Bhandaris was of this form. It may not be deemed un- profitable here to quote the following passage from the judgment of that learned Judge : " The different forms of marriage recognised by the Hindu law are probably to be traced historically to the customs of different tribes which afterwards coalesced to form a single community. The very name of the Asura form indicates it as one derived from the aboriginal inhabitants of this country, or those occupying it before the Aryan invasion. Manu (III, 51) denounces any father who knows the law and who receives a gratuity, however small, for giving his daughter in marriage ; but the custom seems never to have » 1 strange, 43. * Law and Custom of Hindoo Castes, p.

Lecture III. died out amongst the lower castes, if indeed it has not, to

Source page 100

86 FORMS AND FORMALITIES OF MARRIAGE. Lecture III. died out amongst the lower castes, if indeed it has not, to some extent, obtained among the Brahmans also." In the same case it was held that the giving and receiving of money for the bride is the distinctive mark of the A sura marriage. But the giving of palu, or present of money, to the bride herself, which has been regarded as ' nothing else than a kind of rudimentary marriage settlement/ does not render the marriage an A sura one.* Gandharha. " The reciprocal connection of a youth and a damsel with mutual desire is the marriage denominated Gandharha, contracted for the purpose of amorous embraces and pro- ceeding from sensual inclination."^ This is Manu's des- cription ofthe sixth form of marriage. Though regarded as one of the four base forms of marriage,-^ in consequence of its proceeding from sensual inclination, it was formerly permitted to the military class, and is even now occasion- ally in practice in certain places, especially among Rajahs and Chiefs.* Marriages in this form, which depend merely upon the agreement of the contracting parties, resemble to some extent what are called Gretna Green marriages, — that is, runaway marriages by persons governed by the English law, at Gretna Green and elsewhere in Scotland, to evade the provisions of that law against ill-advised and clandestine marriages. Rahsiiasa, " The seizure of a maiden by force from her house while she weeps and calls for assistance, after her kinsmen and friends have been slain in battle or wounded, and their houses broken open, is the marriage styled RakshasaJ'^ * See Manu, III, 54 ; Jaikisondas Gopaldas v. 2 Manu, III, 32. ' Ibid, III, 41. ■• See Chuckrodhuj Thakoor v.

This is no doubt an extremely reprehensible form of mar- Lectube III.

Source page 101

87 This is no doubt an extremely reprehensible form of mar- Lectube III. riage, and the very description of it is sufficient to show that it could never have prevailed in any polished society. It seems to have found a place in the institutes of the sages, either as a relic of a barbarous age preserved by tradition, though condemned by the prevailing sentiment of their time, or as an existing practice among the lawless tribes by which Hindu society was surrounded, and which occasionally claimed to come within the pale of that society by reason of unity of religion. But whether as a traditionary relic or as a contemporaneous practice in the days of Manu, it illustrates the value of ancient law as a record of the past ; and the evidence furnished by that record in the present instance has been used to advantage by competent judges in ascertaining the nature of primitive marriage.^ At the present day, when the hand of law is stronger than ever* marriage by force is not only condemned but punished.^ The last form of marriage, the Pasiacha, is thus described Paisacha, by Manu : " Wlien the lover secretly embraces the damsel, either sleeping or flushed with strong liquor, or disordered in her intellect, that sinful marriage called Paisacha is the eighth, and the basest." (Ill, 34.) It is condemned in unqualified terms in the institutes of the sages, and is prohibited for all the classes ; and it seems to have been enumerated as a form of marriage, only out of regard for the honor of the unfortunate damsel. It is a matter of some surprise, therefore, that such a high author- ity as Macnaghten' should have regarded this as an instance in which fraud is legalized by the Hindu law. ' See M'Lennan's Primitive Marriage, p. 63 et seq. ^ See Indian Penal Code, s, 366. ^ Principles of Hindu Law (3rd ed.), p.

88 FORMS AND FORMALITIES OF MARRIAGE.

Source page 102

88 FORMS AND FORMALITIES OF MARRIAGE. Of the four approved forms of marriage, the Brahrm is the only one that now prevails, and all persons, even Sudras, are at the present day held competent to marry in that form. Of the four base forms, the Asura is the one that is now prevalent, and is in fact the most common form of marriage ; and Oandharha marriages also sometimes take place. Mode of con- I shall now proceed to consider the mode of contracting tracting mar riage. marriage. The betrothment generally precedes marriage, but is not a necessary part of the nuptial rite. As betrothal in the Hindu law is sometimes mistaken for marriage, I shall describe it a little more fully.

BETROTHMENT AND ITS LEGAL EFFECTS. 89

Source page 103

89 distinct from the ceremony of marriage,* but which is popu- Lecture III. larly named the second marriage. It might be perhaps from this misleading name of the ceremony that precedes consum- mation ofmarriage that English writers on the subject have been sometimes led to suppose, that all that precedes it, including the nuptial rite itself, constitutes betrothal only. Strange says : " The betrothment, once effected, by the bride and bridegroom walking seven steps hand in hand during a particular recital, the contract is perfected upon their arriving at the seventh step ; and may be enforced by the husband on completion of the time." ^ But this walking of seven steps, as you will presently see, is the ceremony that completes marriage, and it forms no part of the contract of betrothal. Regarding the legal effects of betrothment, there is some effects.its legal difference of opinion. Some hold that betrothment, even in its strict and correct sense, constitutes marriage,^ and it has been accordingly sometimes contended that it is irrevocable, and that a suit would lie to compel specific performance of a contract of betrothal.* There seems to be some authority in the Hindu law for such a contention. Thus a text of Manu declaring that " the damsel indeed whose husband shall die after troth verbally plighted, but before consum- mation, hisbrother shall take in marriage, «Sz;c.,"^ shows that after betrothment the bridegroom is considered as the hus- * See Coleb Dig-., Bk.

Lecture III, band of the bride. So again, a girl betrothed to one person,

Source page 104

90 FORMS AND FORMALITIES OF MARRIAGE. So again, a girl betrothed to one person, but subsequently married to another, is regarded by some sages as a twice-married girl ;^ and Raghunandan, in the Suddhitattwa,^ holds that, on the death of a damsel verbally betrothed, the families, both of her father and her hus- band, contract impurity for three days. There are also cases decided by the Sudder Dewani Adalut at Bombay, which seem to support this view.^ But the more correct view is that which regards betrothment as a revocable promise of marriage not constituting actual marriage, though such revocation would be improper if without a just cause ; and this is the view which is in conformity with actual prac- tice,* and has received judicial sanction.^ It is amply supported by texts,^ of which the following may be cited as instances :— " The nuptial texts are a certain rule in regard to wedlock ; and the bridal contract is known by the learned to be complete and irrevocable on the seventh step of the married pair hand in hand, after those texts have been pro- nounced."—(Manu, VIII, 227.) " If her husband die after a damsel has been given to him with water poured on his hands, and troth verbally plighted, but before she has been contracted to him by holy texts, that virgin belongs to her father alone." — (Vasistha.)'^ " Previous to the union of man and wife, the betrothal takes place ; the betrothal and the marriage ceremony together constitute lawful wedlock." — (Narada, XII, 2.) " Once is a damsel given in marriage : he who detains her » Coleb. IV, 165. ^ institutes of Raghunandan, Vol. 5,7. * Shama Charan's Vyavastha Darpana. p. 646 ; Steele, 24, 160. ^ In the matter of Gunput Narain Singh, I.

CONTRACT 01^ BETROTHAL. 91

Source page 105

91 shall incur the punishment of a thief ; but if a worthier Lecture III. bridegroom offer, he may take the damsel, though given away." — (Yajnavalkya, I, 65.)* This last text is cited in the Mitakshara ^ as authority for the position that one does not incur any penalty for retraction of a promise of betrothal if there be just cause ; and the case of retraction of such promise without sufficient cause is thus provided for in that treatise : " One who has verbally given a damsel in marriage, but retracts the gift, must be fined by the king in proportion to the amount of property or the magnitude of the offence, and according to the rank of the parties, their qualities and other circum- stances. This is applicable if there be no sufficient motive for retractinof the eno^ao^ement."^ According to Raghunandan,* marital dominion over a damsel results not from vagdan, but from the actual gift of the bride in marriage. The question whether specific performance of a contract Specific perfor- of betrothal can be enforced by a suit has been sometimes contract of raised. Strange was of opinion that it could be so enforced. In some of the earlier cases,* it may at first sight appear as if specific performance of the promise of betrothal had been decreed, WHien examined, however, they amount merely to this, that the Court directed the betrothal or promise of marriage to be carried into effect, and decreed that if it was not carried into effect within a certain limited ' Coleb. XI, 27. * Udvahatattwa (lust., Vol.

92 FORMS AND FORMALITIES OF MARRIAGE.

Source page 106

92 FORMS AND FORMALITIES OF MARRIAGE. Lecture III. period, the defendant should pay a certain sum by way of damages. But in a later case/ the Bombay High Court held, chiefly upon the authority of the passage of the Mitak- shara quoted above, that betrothal not being complete mar- riage, specific performance of it could not be enforced ; and this decision was followed by the High Court of Bengal in the case of Gunput Narain Singh.^ The point has now been settled by the Legislature, and it has been provided by the Specific Relief Act (Act I of 1877), sec. But though specific performance cannot be enforced, the party injured by the breach of a contract of betrothal is entitled to recover compensation for any pecuniary damages that might have been sustained, and also for any injury to character or prospects in life which may naturally arise in the usual course of things from such breach.^ Agreements in I may here notice an important rule governing executory restraint of marriage. contracts of marriage. Every agreement in restraint of the marriage of any person other than a minor is void. This is the form in which the rule is laid down in the Indian Contract Act (Act IX of 1872).* What is meant by an agreement in restraint of marriage may be best illustrated by an example.

MARRIAGE BROKERAGK CONTRACTS, 93

Source page 107

Section 741 — • Law &; Custom of Hindoo rastep,p

MARRIAGE BROKERAGK CONTRACTS, 93 for breach of his covenant, it was held that the promise was Lecture III. void as being in restraint of marriage. " It is not a cove- nant," itwas observed, " to many the plaintiff, but not to marry any one else : and yet she was under no obligation to marry him. So that it restrained him from marry- ing at all in case she had chosen not to permit him to many her." The essential difference between an agreement in restraint of marriage and a contract of betrothal lies in this, that in the latter each party being restrained from marrying any one except the other, the restraint virtually operates in furtherance of the marriage of both. Marriage brokerage contracts, or contracts for the payment ^larriage of money, or the conveyance of property, or the doing of any contracts. other act on condition of the procurement of a particular marriage, are void, on the ground that it is immoral to allow marriage to be made the subject of mercenary speculation ; and, under the English law, a bond by the husband to the wife's father to induce the latter to consent to the marriasre, has been held to be in the nature of a marriacje brokerao^e contract.^ Therefore, though the Hindu law may allow marriage in the Asura form, it is very doubtful whether, after the marriage is completed, the father or other guard- ian of the bride would be entitled to recover from the bride- groom the nuptial fee agreed upon. In the Presidency of Bombay, we learn from Steele,^ persons negotiating marriage, if successful, often receive from 100 to 1,000 rupees according to the difficulty of the case and the circumstances of the parties ; and in Ben- gal, as you are aware, the GhataJcs make large gains by negotiating marriage. But it may well be doubted how far their claims for remuneration would be enforced by Courts » Addison on Contracts, p. 741. • Law &; Custom of Hindoo rastep,p.

Ceremonies I now come to the ceremonies attending the celebration

Source page 108

94 FORMS AND FORMALITIES OF MARRIAGE. But where a person had paid a sum of money to another in consideration of a promise made by the latter to give the former his sister in marriage, and the contract had been broken and the girl married to a third party, it was held that a suit would lie to recover the money paid.^ Ceremonies I now come to the ceremonies attending the celebration attending marriage. of marriage. In all the forms of marriage, ceremonies of some sort are necessary. Macnaghten is of opinion that the gandharba is the only one of the eight modes in which no forms are necessary. He thinks that the phul veJta, or flower marriage in Cuttack (contracted by the exchange of flower garlands between the bridegroom and the bride), is a form of gandharba marriage ; and as the gandharba mar- riage isdeclared to be peculiar to the military class, he asks the question, " may not the indulgence have originated in principles similar to those by which, according both to the civil and the English law, soldiers are permitted to make nuncupative wills, and to dispose of their property without those forms which the law requires in other cases?"* But the correctness of this opinion of Macnaghten appears to have been questioned by the High Court of Bengal in the case of Chuckrodhuj Thahoor v. Beer Chunder Joobraj^ and it is contrary to the opinion of Jagannath, which is based upon the following text of Devala :— " Nuptial rites are ordained in the marriage styled gan- dharba and the rest ; to this contract the nuptial fire must be made witness by the men of the three classes ;"* and it seems that the only formality which may be dispensed with in the gandharba marriage is the formal gift of the bride 1 Juggessur Chuckerbutty r.

she being in this instance considered self- Lectuhe ITT.

Source page 109

95 she being in this instance considered self- Lectuhe ITT. by her guardian, given/ At the present day, whether marriage is celebrated strictly according to the Brahma form, or whether a nuptial gra- tuity is taken by the bride's family, the same rites are observed in all cases. These rites, however, differ in their details according to local or family usage. The most com- mon forms of these ceremonies are given in the compen- dia of Kalesi, Bhavadeva, and Pasupati, and also in the Sanskartattwa of Raghunandan." The ceremonies have also been described by Colebrooke in his Essay on the Reli- gious Ceremonies of the Hindus.' They are upwards of three thousand years old, and contain much that is curious and interesting. It may not therefore be deemed altogether unprofitable to subjoin a brief account of these ceremonies here. » On the forenoon of the day of gift, the nandimukhor vriddhi sraddha is performed by the bride's father or other kinsman. It is the ordinary parvana sraddha, and is performed on this as on other sacramental occasions, under the name of vriddhi sraddha, with a view to render the sacrament auspicious by the blessing of departed progenitors. It is a part of th'at system of ancestor-worship which seems to be one of the most common forms of primitive worship,* and which stiU survives in full force in Hinduism.

96 FORMS AND FORMALITIES OF MARRIAGE.

Source page 110

96 FORMS AND FORMALITIES OF MARRIAGE. Lecture III. recital at the present day would be thought indecorous, and so they are omitted in practice. In the evening the bridegroom comes in procession to the bride's house, and is there received with every mark of hospitality. Anciently, it was the custom of the Hindus to slay a cow for the reception of any honored guest, and hence a guest was called goghna, or cow-killer.* Accordingly a cow was usually set apart for the wedding feast, but the life of the animal used to be spared on this joyous occasion at the intercession of the guest himself. Though the slaughter of kine has long since been prohibit- ed,^ and is now most repugnant to Hindu notions, the practice of tying a cow and then letting it loose is still occasionally observed at the nuptial ceremony. It consists in ofiering the bridegroom padya, or water for washing the feet, argliya, or water mixed with flowers, durva grass, rice, and sandal paste, for washing the head, a stool or cush- ion to sit upon, and onadhuparka, or a mixture of honey, curds and clarified butter, each giving and taking being accompanied with a set formula, and the recitation of cer- tain prayers ; after which, along with other presents, the bride, whose right hand is joined with that of the bride- groom (these hands being tied with kusa), is formally given to the bridegroom by her father or other guardian in marriage, and is formally accepted by the bridegroom, who then recites the following text called the Hymn to Love : " Who gave her ?

cept her. Love ! may this be thine." The giver next pre- Lecture III.

Source page 111

Love ! may this be thine." The giver next pre- Lecture III. aents a piece of gold as dalcshina, or gratuity, to complete the gift of the bride to the bridegroom ; and the skirts of the mantles of the affianced pair are then tied together, to indicate their union. The bridegroom then recites a text for the release of the cow, and she is accordingly let loose. Crude as the notions of our ancestors must have been on many subjects in the Vedic times, the hymn to Love shows that their ideas on the subject of matrimony were perhaps as refined as the most enlightened views of the present day. Parental love, to secure the future happiness of the daughter, gives her to a fit bridegroom, and conjugal love accepts her. The next ceremony is the panigrahana, or the acceptance of the bride's hand. May thou pros- ^ per in thy husband's house, blest with his survival and viewing cheerful children." The bride next treads upon a stone, while the bridegroom recites this text : " Ascend this stone : be firm like this stone.

98 FORMS AND FORMALITIES OF MARRIAGE.

Source page 112

98 FORMS AND FORMALITIES OF MARRIAGE. Lecture III. comes complet-e and irrevocable on the completion of the seventh step. These steps typify deliberation, and the taking of the final step implies that the bride deliberately enters matrimonial life. The husband then addresses the wife thus : " Having completed seven steps be my companion. May none interrupt thy asso- ciation with me. May Brihaspati unite thee unto me." The last ceremony in marriage is called the uttara-^ vivaha.

The ceremonies performed after Sampradan are popularly Lecture III.

Source page 113

99 The ceremonies performed after Sampradan are popularly Lecture III. known under the name of Kusancliha^ The account given above is in accordance with the form prescribed for those who use the Samaveda. For those who follow the other Vedas, the forms are slightly different, especially in the order of the ceremonies that follow the Sampradan. In the case of the Sudras who are incompetent to perform the homa or oblation to fire in person,^ the homa is perform- ed vicariously through the instrumentality of a Brahman. This is in accordance with the opinion of Raghunandan, who says that a Sudra also has the right to the performance of the JioTTia through a Brahman, in marriage, and so forth f and the Yyavahara Majrukha,* and the Nirnaya Sindhu,^ take the same view. The foregoing are the ceremonies usually observed at Necessity of ® ° "^ their observ- Hindu weddings. Wheeler, after describing tlie marriage of Rama and Sita, in a note observes : " It is impossible to avoid noticing the striking resem- blance between the ancient marriage ceremony as it was performed by our Aryan forefathers in their private dwellings, and the more modern rite as it is performed in Christian churches.

Lecture III. ative. "The nuptial texts," saysManu/ "are a certain rule

Source page 114

100 FORMS AND FORMALITIES IN MARRIAGE. Lecture III. ative. "The nuptial texts," saysManu/ "are a certain rule in regard to wedlock ; and the bridal contract is known by the learned to be complete and irrevocable on the seventh step of the married pair, hand in hand after those texts have been pronounced." So says Yama : " Neither by water poured on her hands, nor by verbal promise, is a man acknowledged as husband of a damsel ; the marital contract is complete after the ceremony of joining hands on the seventh step of the married pair."^ And to the same effect are the words of Vasistha : " If her husband die after a damsel has been given to him with water poured on his hands, and troth verbally plighted, but before she has been contracted to him by holy texts, that virgin belongs to her father alone."^ So likewise Narada ordains that the essential characteristic of wifehood consists in the marriage benediction.'* Nor are the above texts mere obsolete dicta of the sages. They have been followed by commentator after commentator, and their age has only added to their force. Medhatithi, one of the earlier commentators of Manu, holds that " the non-material quality of being an adopted son, like the quality of wifehood, is the result of the performance of honia." * So Kulluka, in his gloss on the above text of Manu, says, that wifehood is not constituted without the saptapadi and the nuptial texts ; and Raghu- nandan^ and Jagannath'' also take the same view. And in fact the very word patni, lawful wife, from its etymology, implies a connection with religious rites.^ It is true that » VIII, 227. » Coleb. IV, 174. " XII, 3. * See Nirnaya Sindhu, Ch.

NECESSITY OF OBSERVING CEREMONIES. 101

Source page 115

101 there are some texts which apparently support the opposite Lecture III. view. Thus Manu says : " The recitation of holy texts and the sacrifices ordained by the Lord of creatures, are used in marriages for the sake of procuring good fortune to brides ; but the first gift is the primary cause and the origin of marital dominion." (V. 152.) " The gift of daughters in marriage by the sacerdotal class is most approved, when they previously have poured water into the hands of the bridegroom ; but the ceremo- nies of the other classes may be performed according to their several fancies." (Ill, 35.) But the former of these two texts has reference to the origin of the husband's rights over the wife, which is there- in declared to be ' the first gift ;' and as Kulluk Bhatta observes, it is not meant to contradict the text in the eighth chapter^ quoted above, which declares that the quality of wifehood is not produced without the nuptial texts and the saptapadi. In other words, the meaning is that a damsel given by her guardian and accepted by a man with- out the observance of nuptial rites, becomes subject to the rights and control of that man as her husband, without acquiring the rights and status of a wife. As for the other text, it refers to the form of the gift only, and not to the nuptial rites that follow it. Among foreign writers who have examined the subject, Colebrooke, the highest authority, is of opinion that " the marriage is complete and irrevocable so soon as she (the bride) has taken the seventh step ; and not sooner." ^ Mac- naghten when he says that " the gandharha marriage is the » VIII, 227.

102 FORMS AND FORMALITIES IN MARRIAGE.

Source page 116

102 FORMS AND FORMALITIES IN MARRIAGE. liECTURE III. only one of the eight modes for the legalizing of which no forms are necessary," ^ indirectly gives his opinion that for- malities are necessary in the other forms. Strange, though he says that the essence of the rite con- sists in the consent of the parties,* admits that the bridal contract is perfected upon the completion of the seventh step.^ The necessity of marrying girls at an early age, and the consequent interference of guardians in the nuptial contract, coupled with the sacramental nature of marriage, prevent irregular and informal marriages, and render the observance of forms as strict as possible. There being, therefore, no difference between the written law and the actual practice of the Hindus on this point, one need not feel much hesi- tation insaying that the observance of ceremonies is neces- sary to constitute a valid marriage. Nor can it be said that the rules enjoining the observance of ceremonies in marriage are not strict rules of law, but are mere moral injunctions — are rules that are not imperative in their nature but are directory only. This is a distinction which English judges and lawyers constantly draw with a view to simpli- fy the Hindu law by separating its religious from its civil element, and thus to reduce it to harmony with more advanced notions; and in doing so they are not perhaps always wrong, nor do they necessarily depart from the judge's duty of administering the Hindu law as it is ; for Hindu lawyers themselves have shown the way, by getting rid of inconvenient or obsolete rules upon this principle of inter- pretation. The principle is in general a very sound and wholesome one.

to be attended with the most mischiev- Lecture III.

Source page 117

J 03 to be attended with the most mischiev- Lecture III. rules, but is likely ous consequences. Happily the question as to the validity of informal marriages among Hindus has been seldom raised. In an early case/ it is true that the ^a^ic^i^s gave their opinion that marriage is constituted by the persons saying " I marry," &c., &c., and agreeing to marry ; but that opinion is not supported by any authority, and, moreover, the par- ties inthat case were Sikhs, not Hindus. When the ques- tion is raised, judges ought carefully to guard against readily applying the above principle to it. As Fitz James Stephen in his speech on the Native Marriage Bill observed: " Scotch law goes far when it enables a man and wo- man to marry each other by a few words exchanged in the course of a casual conversation ; but Anglo-Indian law would go infinitely further if it held that two people could in that manner convert their children into man and wife." ^ No doubt, the essence of the contract of marriage, like that of every other contract, consists in the intention of the parties expressed in some clear way, and the observance of form is only evidence of their intention. But considering the fact that Hindu marriages are, for the most part, con- tracted, notby the parties themselves, but by their guard- ians, and considering the absolute indissolubility of mar- riage inHindu law, one must ponder long and cautiously before coming to the conclusion that the forms and cere- monies which constitute, in that law, the only safeguards against undue influence and want of due deliberation, can be rightly dispensed with.

104 FORMS AND FORMALITIES OF MARRIAGE.

Source page 118

104 FORMS AND FORMALITIES OF MARRIAGE. Lecture III. polished system of law, some definite form, either civil or religious, is prescribed as necessary to be observed in con- tracting marriage. The two primary objects to be secured by formalities in marriage are the prevention of hasty and inconsiderate marriages, and the removal of doubts as to the nature of the relation that is created. In order to secure the former object, in the absence of more rational modes, long estab- lished ceremonious forms cannot well be dispensed with. As has been well observed, " ceremonies which strike the imagination serve to impress upon the mind the force and dignity of the contract ; " while their observance secures publicity to some extent, and aifords some time for delib- eration. Warrender : " The laws of each nation lay down the forms and solemnities, a compliance with which shall be deemed the only criterion of the intention to enter into the contract." ^ Hindu law has its prescribed forms, and if we hold the observance of these to be optional, it would lead to loose forms of mar- riage, utterly subversive of morality, and there would be the greatest difficulty in distinguishing between concubinage and marriage.* It might be urged that the nuptial rites in the Hindu law are so cumbrous and minute, that an exact observance of their details is by no means easy ; and that if those cere- monies are held necessary, real and bond fide marriages would stand in danger of being rendered invalid in conse- » 2 Clark and Finnelly, 5.31. case of Dalrymple v.

quence of trivial defects of form. But there is no reason Lecture III.

Source page 119

105 quence of trivial defects of form. But there is no reason Lecture III. for this apprehension. All that is required is a substantial compliance with the forms, to show that the parties intend to contract marriage. There is a broad distinction between* an intentional omission to observe the ceremonies, and a defective observance of the same by reason of accidental error or inadvertence; and it is only the former that is required to be avoided. The Brahmos, who form a considerable section of the Hindu community in its widest sense, intentionally and out of religious scruples, omit to observe the Hindu ceremonies of marriage, and cele- brate their nuptials in a peculiar form, which is called the BrahTna form, but which I shall call the Brahimc, to distin- guish itfrom the Hindu form of that name ; and the question is, are these Brahmic marriages valid in law? But in the case of the Adi or Conservative Brahmos who claim to be Hindus, the Hindu law cannot altogether be left out of view in answering the question.

106 FOEMS AND FORMALITIES OF MARBIAGE.

Source page 120

106 FOEMS AND FORMALITIES OF MARBIAGE. liECTUEE III. length. It will come for our consideration in a future Lec- ture, and at present I would only remark that there is nothing in justice, equity, and good conscience, which should necessarily invalidate a form of mg-rriage, merely because it is new, and differs from the old and ordinary form, when such new form is recognized by a considerable body of per- sons. In the latter case, I venture to affirm, though with some hesitation, for the point is not considered alto- gether free from doubt,* that the Brahmic marriages are valid. But yon must bear in mind that their validity rests upon peculiar and exceptional grounds. It is very doubtful whether custom, which has the force of law in Hindu juris- prudence, can be invoked in favor of such marriages. For custom, to have the force of law, must be ancient, while the nuptial form in question is quite of recent origin.

as I have already said, is an important Lecture III. ,

Source page 121

107 as I have already said, is an important Lecture III. , The question, one, and within the limits that I must here propose to my- self, you cannot expect anything like an adequate treatment of it. You will find the question discussed at great length in FitzJames Stephen's elaborate speech on the Native Marriage Bill.' The point will again occupy our attention in a future Lecture,^ when we come to consider the custom- ary forms of marriage among the Hindus. In connection with the observance of formaKties in mar- riage, as well as other matters affecting its validity, there is aai important rule of evidence which you should bear in mind, namely, that if a marriage in fact is established, there would be a presumption in favor of there being a marriage in law-' The time for celebration of marriage^ has to be fixed in Timebrationof for ceie-mar- accordance with various astrological and other considerations.* "^s®* These do not affect the validity of marriage, and so I need not take any further notice of them. There is only one question connected with time which seems to have a legal aspect, — namely, whether marriage solemnized during^^- the impurity (asauch) of either party owing to the birth or death of a kinsman is valid. In the case of Rarnalinga Pillai V. Sadcbsiva Pillai,^ it was contended that adoption during impurity was invalid, but the point was not decided, as it was found as a fact that the adoption had taken place after the period of impurity had expired.

Lecture III. religious ceremonies in marriage.^ But the prohibition of

Source page 122

108" FORMS AND FORMALITIES OF MARRIAGE. Lecture III. religious ceremonies in marriage.^ But the prohibition of marriage during impurity would hardly be regarded as any- thing more than a mere moral injunction. The usual ceremonies being observed, marriage becomes complete and irrevocable, and consummation is not neces- sary to render it valid. There is no distinction in the Hindu law between consummation and non-consummation.* Questions of It was at One time doubted whether questions of the validity marriage how or invalidity of Hindu marriages not involving questions of in the'Courts. right to property, could be tried in the Courts of this country. Justice Glover, following an earlier case,* held that such questions could not be tried by the Civil Courts ; but on appeal, this decision was reversed.* The facts of that case were shortly these : Anjona Dossee, as the mother and guardian of her minor daughter Kuppoora (an infant of about five years of age), sued the defendant Proladh Chunder Ghose, alleging that he (defendant) had forcibly carried oiF Kuppoora Dossee without her consent to the house of a third party, and there had gone through a mar- riage ceremony with her. The Officiating Chief Justice Nor- man, in delivering the judgment on appeal, observed :— I " Suits relating to marriage deal with that which in the eye of the law must be treated as a civil contract, and with civil rights arising out of that contract.

himself to have the rights of a husband from Lecture III.

Source page 123

VALIDITY OF MARRIAGE HOW FAR A QUESTION FOR COURTS. 109 himself to have the rights of a husband from Lecture III. son alleging enforcing any claim to the custody or possession of the per- son of the woman founded on the supposed marriage. " If such relief could be granted, it is not easy to see why a declaratory decree under section 15 might not be made. Such a declaration may be of the greatest importance to a girl circumstanced as the infant plaintiff is. If the marriage is in fact no marriage, unless she can obtain a declaration from a Court of Justice that the marriage is null and void, unless she can obtain the protection which such Court can give her, she may be obliged to live with the defendant in a state of concubinage, or at least she will be prevented from marrying any one else. The rights which a decree in this suit may protect, with which the defendant may be res- trained from interfering, — the preservation of the personal purity of the infant plaintiff and her right and power to contract a valid maniage, — are amongst the highest rights which a human being can possess ; and it would be a mat- ter deeply to be lamented if the Court had no power to pro- tect and defend them. " We have, however, no doubt of the existence of that power. We think that a suit such as the present, which is a suit of a civil nature, may be entertained in the Civil Courts of this country under the provisions of section 1, Act VIII of 1859, and that view seems to me to be sanctioned by the opinion of the Lords of the Privy Council in the case we have referred to. " We think that the Court must have jurisdiction in such suit to declare the marriage void, if procured by fraud or force, and celebrated without the consent of the necessary parties or without the formalities necessary to render it ^ binding marriage according to Hindu Law."

LECTURE lY.

Source page 124

Scope ©f the present Lecture — Nature of the marriage contract— Nature of the marriage contract in the Hindu law — Rights of the husband and the wife over the person of each other— Custody of an infant wife— Restraint of wife's liberty — Correction of her person— Remedy of the husband against infringement of marital rights— Restitution of conjugal rights— Cases in which restitu- tion of conjugal rights is not allowed — Effect of change of religion on the claim for restitution of conjugal rights— Act XXI of 1866— Adultery— Effects of marriage on personal capacitj' — Remarriage— Supersession — Present on supersession — Remarriage of a convert to Christianity relapsing to Hindu- ism— Man and wife one person in Hindu law only for religious purposes- Wife may contract — She- may sue and be sued — She is not exempt from arrest in execution of civil process — Husband and wife competent witnesses for or against each other — Effects of marriage on the property of the hus- band and of the wife— Wife entitled to a share on partition — Wife entitled to maintenance — From whom— Maintenance when allowed to a wife living apart — Maintenance when forfeited — Rateof maintenance — Arrears of main- tenance— Recovery of maintenance under the Code of Criminal Procedure — Maintenance of concubines — Husband and wife how far bound by each other's contracts— Bombay Act VII of 1866 — Husband or wife entitled to compen- sation under Act XIII of 1856 — Effects of marriage on offspring — Legiti- macy— Effect of marriage in a different caste on legitimacy — Presump- tion of legitimacy — Bastard's right to inherit— Maintenance of children — Right to give or take a son in adoption — Paternal power under the Hindu law — Maintenance of parents — Rules for women whose husbands are away— Appointment of a wife to raise up offspring. Scope of the HAVING considered between what parties and in what ^ Eresent ecture. mode the matrimonial union can be formed, I now come to the consideration of the legal consequences of that union. From the very nature of the conjugal relation, each party acquires certain rights over the person of the other ; and in most systems of law, the property of each also becomes subject, more or less, to the rights of the other. In some countries, again, marriage attaches to one of the parties, the wife, important personal privileges and disqualifications. Besides these results which affect the parties immediately

the conjugal relation is the source of other Lecture IV.

Source page 125

Ill the conjugal relation is the source of other Lecture IV. concerned, legal consequences. It confers on the issue of important the union the status of legitimacy, and thus forms the foun- dation ofthe rights of inheritance, lineal and collateral ; and it is the basis of the legal, as distinguished from the natural, relation of parent and child. Without aiming at strict logical precision, these several consequences of mar- riage may be conveniently arranged under the following four heads :first, those relating to the persons of the parties ; second, those relating to their personal capacity ; third, those relating to their property; and fourth, those relating to their offspring. This division will be kept in view in dis- cussing the topics of the present Lecture. Here it ought to be observed that the legal consequences Nature of tha of marriage depend in almost every civilized country, not contract. upon the will of the parties to it, but upon the law which governs them. For this reason, it has been sometimes doubted whether marriage is, properly speaking, a contract. " It is rather," says Story, " to be deemed an institution of society, founded upon the consent and contract of the parties ; and in this view it has some peculiarities in its nature, character, operation, and extent of obligation, difierent from what belong to ordinary contracts." * No doubt it is not a contract in the sense in which any other agreement, such as betrothal, is a contract.

112 LEGAL CONSEQUENCES OF MARRIAGE.

Source page 126

112 LEGAL CONSEQUENCES OF MARRIAGE. Lecture IV. parties when they marry, in fact enter into an agreement to perform certain duties towards each other for the rest of their lives : it is a contract to be followed by a whole life of specific performance. " But," as a distinguished Scottish judge' observes, " it differs from other contracts in this, that the rights, obligations or duties arising from it are not left entirely to be regulated by the agreements of parties, but are, to a certain extent, matters of municipal regulation, over which the parties have no control by any declaration of their will." The object of this interference of law with the freedom of parties in their mutual dealings, is to guard against the consequences of individual caprice and want of foresight, in a transaction which is of the most serious importance not only to themselves, but to society in general. How far it is justifiable is another question, which it would be foreign to my present pui'pose to discuss. There has, however, been a steady advance towards reducing this interference of the law as regards marriage. Thus, in England, though by the common law the wife loses all her rights of holding property independently of her hus- band during coverture, yet this rule has been allowed to be evaded by means of marriage settlements,* and now impor* tant exceptions to it have been created by the Married .Woman's Property Act, 83 and 34 Vict., c. So, as ' Lord Robertson in Fergusson on Marriage and Divorce, 397, quoted in Story's Conflict of Laws, § 109. ■ See Stephen's Commentaries, Bk.

regards divorce, though the law regards marriage as gener- Lectube IV.

Source page 127

NATURE OF MARRIAGE CONTRACT IN HINDU LAW. 113 regards divorce, though the law regards marriage as gener- Lectube IV. ally indissoluble, and disfavours separation, arrangements for separation have long been allowed/ The Code Napoleon, while it enacts that " married persons cannot derogate from the rights resulting from the power of the husband over the persons of his wife and his children," nor from the prohibi- tory regulations of the Code, at the same time declares that " the law does not regulate the conjugal association as res- pects property, except in default of special agreements which the married parties may make as they shall judge convenient, provided they are not contrary to good morals." ^ Before the Kevolution, the law of France regarded mar- riage asindissoluble ; but the Code Napoleon allows divorce and separation of persons ;^ and though divorce was for a time abolished, it has been again allowed." marriage The Hindu law on this subject still retains its archaic Nature of the character. Marriage in that law is not merely a contract contract in the Hindu law. but also a sacrament ; and the rights and duties of the mar- ried parties are determined solely by the law, and are inca- pable ofbeing varied by their agreement. As Manu emphat- ically declares, " neither by sale, nor desertion, can a wife be released from her husband."* Following the spirit of this rule, the High Court of Bengal, in the case of Seetaram V. Mussamut Aheeree Heeranee, said: "It is contrary to the policy of the law to allow persons by a contract between themselves to avoid a marriage on the happening of any event they may think fit to fix upon."^ The event in that case was the husband's not continuing to live in the wife's viUajre. * See Stephen's Commentaries, Bk. 229—233, 306—311. * Mackenzie's Roman Law, 4th ed,, pp.

Lecture IV. The duties of man and wife form one of the eighteen

Source page 128

Section 303 — « IX, 101, 102

114 LEGAL CONSEQUENCES OF MARRIAGE. The duties of man and wife form one of the eighteen titles of law according to Manu^ and other sages.^ As a text of the Smriti* declares litigation between man and wife to be illegal, Jagannatha opens his disquisition on this title of law with the question, " Is it not impossible that there should be such a title of judicial procedure as the Duties of Man and Wife, since litigation is forbidden in a controversy between man and wife, by a text of civil law cited in the Mitakshara?"* He notices several answers, of which the substance is, that such litigation is never laudable, and that it ought to be discouraged, though it must be sometimes allowed from the necessity of the case. I now proceed to notice the legal consequences of mar- riage under the Hindu law, and first those relating to the persons of the parties. Rights of the It follows from the very nature of the matrimonial rela- the wife over tion that the husband and the wife must each be entitled to each other, the society of the other. It is one of the express conditions in the nuptial vow of the Hindus that each party is to be- come the associate of the other.^ Accordingly Manu de- clares, "Let mutual fidelity continue till death." " Let a man and woman united by marriage, constantly beware, lest at any time disunited they violate their mutual fidelity." ^ And the sages denounce the desertion or neglect of either party by the other without just cause as an act punishable in this world and in the next.'' While the wife is directed to revere the husband as a god,® the husband is likewise » VIII, 7. 303. « IX, 101, 102. 'Colebrooke's Digest, Bk.

r^uired to honor a virtuous wife/ Nor is. conjugal asso- Lectube IV.

Source page 129

RIGHTS OF HUSBAND AND WIFE OVER EACH OTHER. 115 r^uired to honor a virtuous wife/ Nor is. conjugal asso- Lectube IV. ciation limited to temporal purposes alone : religious rites ^re ordained in the Vedas to be performed by the husband in company with the wife.^ So sacred and peculiarly favored is i^he association between man an,d wife in the eye of law, that our Penal Code, while punishing the harbouring of ofienders generally, does not regard it an offence when the harbouring is by the husband or wife of the offender.^ So far the duties of the husband and the wife with res- pect to each other's person are reciprocal. But perfect equality of rights in the married couple has never yet been allowed by any system of law. Without denying the posi- tion maintained by some of the most advanced thinkers of our age, that conjugal society in equality is the best fofm of that society, it must be admitted that such equality is prac- tically allowable only for persons of a high degree of culture ; and that in the majority of cases, some form of domestic government is necessary to prevent disorder and discord, which would otherwise inevitably arise from the conflict of opposing wills, both equally supreme, in persons bound to live together. And if there must be inequahty, it is not difficult to see that it must be in favor of man. " In his hands," to use the language of Jentham, "the power maintains itself. Give the authority to the woman, and every moment a revolt would break out or^ the part of her husband."^ This inequality was originally very great, but the tendency of society has been to reduce it as far as possible.

Lecture IV. whole, as you will see in the end, it is far more equitable

Source page 130

116 LEGAL CONSEQUENCES OF MARRIAGE. Lecture IV. whole, as you will see in the end, it is far more equitable towards the female sex than most of those systems. As a rule, in the Hindu law, the state of women is one of perpetual tutelage. "Their fathers," says Manu, "protect them in childhood ; their husbands protect them in youth ; their sons protect them in age : a woman is never fit for inde- pendence."^ Youth in this text is explained by Kulluka to mean coverture. The same rule is laid down by other sages, and adopted by authoritative commentators, such as Vijnaneswar and Sulpani.^ Accordingly, after marriage, a woman, whether a major or a minor, comes under the protec- tion and guardianship of her husband.' If the husband is him- self, byreason of minority or the like, under the authority of another, the wife comes under the control of that other. This is perhaps what is indicated by the fact that by marriage a woman's gotra, or connection by birth with her primitive stock, is by a fiction of law supposed to be changed, and she is regarded as affiliated to the gotra of her husband.* It is a change of no consequence now, but seems to have meant at one time the transfer of a woman from the patriarchal authority of one family to that of another. IV, 4, 6. * Macnaghten's Principles of Hindu Law, 104. * See Udvabatattwa, Inst., Vol.

the Hindoo law a legal and complete marriage, the husband, in Lectukb iv.

Source page 131

117 the Hindoo law a legal and complete marriage, the husband, in Lectukb iv. my opinion, has the same right as in other cases to demand that his wife shall reside in the same house with himself. I do not think that any Court can deprive the husband of this right except upon some tangible and definite grounds, which show that, under the special circumstances of the case, the wife is absolved from this duty, and her parents or guardians from the duty of surrendering her to her husband ; and we cannot, in my opinion, say, without contravening the Hindoo law, that infancy of a wife consti- tutes such a ground, though it might, I think, be right in the case of a very young girl to require the husband to show that she would be placed by him under the immediate care of some female member of his family." Where, how- ever, a well-established custom exists ^ for a child- wife to remain away from her husband, and not to come to live with him in his house until a certain event has occurred,' such custom has been recognized by the Courts/ By the Acts relating to the guardianship of minors (Act XL of 1858, section 27, and Act XX of 1864, section 31) it is provided that nothing in those Acts shall authorize the appointment of a guardian of the person of a female whose husband is not a minor. When the husband is himself a minor, his guardian would, as a rule, be also the guardian of the wife. This would follow from the rule that after the husband's death, his nearest kinsman is the guardian of the widow in pre- ference toher father or any of her paternal relations.'* But ' Suntosh Ram Doss v. IV, 13: Macnaghten's Precedents of Hindu Law, Ch.

Lecture IV. in exceptional cases, the Courts, as representing the sovereign

Source page 132

Lecture IV. in exceptional cases, the Courts, as representing the sovereign who is the universal guardian in Hindu law/ may allow an infant wife during the minority of her husband to remain under the guardianship of her parents in preference to that of her husband's relations. Restraint of Under the Hindu law, as indeed under most other wife's liberty. systems, the liberty of the wife is liable to be considerably restrained by the husband. The duty of attendance on her husband, which is so strongly inculcated,^ obliges her to follow him wherever he chooses to reside. And it is a general principle of law that the domicile of the wife follows that of her husband.^ She is also bound to refrain from going to any place where her husband forbids her tp go. Manu says : " Drinking spirituous liquor, associating with evil persons, absence from her husband, rambling abroad, unseasonable sleep, and dwelling in the house of another, are six faults which bring infamy on a married wopian."'* Being accustomed to seclusion almost from infancy, Hindu women seldom feel this restraint on their Uberty with ^y degree of keenness. Nor would a Hindu husband be punish- able under the Penal Code (section 339) for enforcing this restraint, as the person restrained in this case has no right to go wherever she chooses.

confinement at home, even under affectionate and observant Lecture IV.

Source page 133

119 confinement at home, even under affectionate and observant Lecture IV. guardians, they are not secure ; but those women are truly secure who are guarded by their own inclinations. A wife, according to Manu, may be corrected when she Correction of commits faults, ' with a rope or small shoot of a cane ; but on the backpart only of the body, and not on a noble part by any means ;' and the rule is qualified by the provision that he who strikes her otherwise than by this rule incurs the guilt of a thief. ^ Barbarous as this rule is, it is not peculiar to the Hindu law. There was such a rule in the Civil law. And even in a system regarded as more polished, a similar rule was at one time well recognized ; and we read in Stephen's Commentaries on the Laws of England, that though this power of correction began to be doubted in the reign of Charles II, " yet the lower rank of people, who were always fond of the old common law, still claim and exert their antient privilege : and the Courts of law will still permit a husband to restrain his wife of her liberty, in case of any gross misbehaviour. " * But the rule in the Hindu law is seldom carried into execution, and the weight of Manu's authority is in this instance almost balanced by a text of high authority, which says: "Strike not even with a blossom a wife guilty of a hundred faults. " * And later Hinduism, though justly meriting the reproach of being the cause of many social evils, has in this instance helped to raise the position of the wife, by identifying her with the primary divinity Sakti herself, and making her person sacred against the least ungentle touch. I may add that our Penal Code makes no exception in favour of the husband's right to chastise the wife. » IX, 12. » VIII, 299, 300. » Vol. 277, 278 (oth ed.) * Colebrooke's Digest, Bk.

Lecture IV. jj^ ^jj early case, it was held that an action could not

Source page 134

120 LEGAL CONSEQUENCES OF MARRIAGE. Lecture IV. jj^ ^jj early case, it was held that an action could not be maintained for loss of character by a wife against her husband under the Sastra, because a woman's husband is like unto her god, and she must remain obedient to his orders and conform to his will.^ The correctness of this ruling is open to question. For the Hindu law not only directs the wife to revere the husband as a god, but it also directs the husband to honor the wife. But what- ever doubts there might have been on this point, have now been removed. And the Indian Penal Code, how- ever unseemly its interference may be, will not allow any husband to trifle with the reputation of his wife with impunity. Remedy of the Such being the rights which the husband acquires by asainst in- marriage over the wife's person, the next question is how marital rights, they are to be enforced in case of infringement. * Deokoonwur v.

Where the wife is an infant, and the husband seeks to Lecture IV.

Source page 135

121 Where the wife is an infant, and the husband seeks to Lecture IV. have her in his custody, the proper course is to proceed according to the provisions of Act IX of 1861. The hus- band may also by a civil suit obtain an injunction upon any person detaining his wife, to abstain from putting any obstruction in the way of the wife's returning to her husband ; but no order can be made upon such person directing him to send the wife to her husband.^ Where the wife is qualified by her age to perform her conju- Restitution of remedy for the husband is a suit for *^°°3uga ng ts. gal duties, the proper restitution of conjugal rights. It was at one time doubted whether such a suit would lie in the Civil Courts of India, and the ground for such doubt was the difficulty of enforcing the performance of conjugal duties in their detail ; but the point has been settled by the decision of the Privy Council in the case of Moonshee Buzloor Ruheem v. In that case the Judicial Committee observed : " Upon authority then, as well as principle, their Lordships have no doubt that a Mussulman husband may institute a suit in the Civil Courts of India for a declaration of his right to the possession of his wife and for a sentence that she return to cohabitation, and that that suit must be deter- mined according to the principles of the Mahomedan Law. The latter proposition follows not merely from the impera- tive words of Regulation IV of 1793, section 15, but from the nature of the thing. For since the rights and duties resulting from the contract of marriage vary in different communities, so, especially in India, where there is no general marriage law, they can be only ascertained by * Lall Nath Misser v.

Lecture IV, reference to the pai*ticular law of the contracting parties."

Source page 136

122 LEGAL CONSEQUENCES OF MARRIAGE. Lecture IV, reference to the pai*ticular law of the contracting parties." Though the case was one between Mahomedans, the rule laid down evidently applies mutatis mutandis to the Hindus, and it has been so applied.^ But the form of the decree ^n such suits, and the mode of executing it, have been points for some controversy. It seems to have been sometimes held,^ that the decree should direct the deli- very of the wife bodily into her husband's hands, and the language of article 84 of the second schedule of the Limitation Act (1877) which provides for suits for the recovery of a wife, might perhaps be referred to as favoring such a view. But the provisions of the Limitation Law are no safe guide in such matters ; and it may now be taken as settled that the proper form of the decree should be this : " that the plaintiff is entitled to his conjugal rights, and that his lawful wife, the defendant, be ordered to return to his protection."" Regarding the mode of execution of such a decree, there was some difference of opinion in the Indian Courts. While it was held by the High Court of Bengal in the case of Gatha Ram Mistree v. Moohita Kockin Atteah Domoo- Tiee,* that the decree in such cases could only have the effect of a declaratory decree, and was incapable of enforcement by any coercive process against the wife, the Bombay High Court ruled,^ that in case of disobedience, the decree could be enforced by imprisonment of the wife under section 200 of Act YIII of 1859.

by Act X of 1877 (section 260), which provides that a Lecture IV.

Source page 137

123 by Act X of 1877 (section 260), which provides that a Lecture IV. decree for restitution of conjugal rights may be enforced by the imprisonment of the person and the attachment of the property of the party against whom such decree is made. But though no longer regulating the procedure in such cases, the judgment of Mr. Justice Markby, in the Bengal case just referred to, is highly instructive ; and I think it may be useful to quote the following passages from it :— " It appears to have been at one time thought that in this country the duty of cohabitation should be enforced by seizing and making over the recreant party bodily to the claimant, and cases are mentioned in which this has been directed in the case of a wife refusing to return to her hus- band. Iam not aware of any case in which it has been suggested that similar violent measures should be taken against a husband refusing to receive his wife ; and the cases in which a wife has been so treated are obviously based upon the notion that the husband purchases the wife at marriage, and that she thereby becomes an article of his property. Widely as this notion has prevailed in the world I need scarcely say, that it is wholly abhorrent to the Hin- doo law. ***** " I do not, indeed, think it likely that any one will con- tend that the bare declaration of the existence of the rela- tion, even if not 'relief in the technical sense of that term, is not of the greatest value and assistance to the parties : what seems to be considered is that the Courts must, in order to be logically consistent, follow up this declaration with all the powers which they possess. " That the Courts, however, are not hemmed in by any such necessity is, I think, indisputable.

124 LEGAL CONSEQUENCES OF MARRIAGE.

Source page 138

124 LEGAL CONSEQUENCES OF MARRIAGE. Lecture IV. most direct, and indeed the only really effectual, mode of enforcing the obligation, and, therefore, the one to be adopt- ed, if the Courts have no discretion in the exercise of their power, is to bring the parties together by force. But this has been universally repudiated, not only in India, as is above shown, but in every other country as shocking to our feelings of humanity. The alternative of forcing the recu- sant party into compliance by imprisonment is a course which to my mind has little to recommend it by comparison, and though not quite as universally condemned has also been very generally repudiated. During the anxious en- quiry, which I have thought it my duty to make upon this subject, I have ascertained that, upon the continent of Europe, the right both of the husband and of the wife to cohabitation (in the etymological sense), the husband select- ing the place of residence, is everywhere considered as altogether beyond dispute. So also is the right to proceed against and to punish any third person who detains a wife from her husband : so also is the right of the husband to maintain a suit against the wife if she refuses to acknow- ledge, the marital rights.

sure that the question has been finally set at rest, but I Lecture IV,

Source page 139

125 sure that the question has been finally set at rest, but I Lecture IV, have reason to believe that the leaning is strongly against the use of any such means. " If we consider the law of England, I think the difficulties about the Civil Court attempting to enforce by compulsion the observance of conjugal duties are in no way lessened. Perhaps some persons would be inclined at first sight to treat the law of England as affording an example of the almost unbounded exercise of judicial power in this direc- tion :and if we look to forms and words only, it is so. The old ecclesiastical Courts, that is, the Church, claimed to have power to enforce specifically the performance of conjugal duties in their minutest particulars, and gave decrees accord- ingly. But inasmuch as these Courts soon found that they had no effectual independent power of enforcing their decrees when pronounced (3 Black. Undoubtedly, the ecclesiastical Courts had a right to call in the ordinary civil power in aid of its own weak authority (Black., uhi supra), but whether from the difficulty of the procedure, or the contempt entertained for those who invoked the assistance of the Court for such purposes (3 Black., 94), such extremities were, I believe, very rarely proceeded to. No doubt, the Court which now exercises jurisdiction in matters matrimonial in place of the old ecclesiastical Courts has the same power of enforcing its decrees as the Court of Chancery, but I can only find three c^ases in the reports since the new Court was estab- lished in which writs have been actually issued.

Lecture IV. significant that, in two of these cases, the recusant party

Source page 140

126 LEGAL CONSEQUENCES OF MARRIAGE. Lecture IV. significant that, in two of these cases, the recusant party had already escaped out of the country. " But surely when we look to the law of England for a guide, it is where that law is in harmony with the general principles of equity and jurisprudence that we should adopt it ; not where it is exceptional. That the English law on the subject of enforcing conjugal rights is exceptional, I have no manner of doubt. It is based on the canon law or the law of the Church, and as far as I can gather, the following are the propositions which that law maintained :— (1) that all sexual intercoiu-se, except between husband and wife, is a mortal sin ; (2) that marriage is a divine institu- tion entirely under the control of the Church ; (3) that all marriages not sanctioned by the Church are unlawful; (4) that divorce is impossible ; (5) that the Church can release the parties from their conjugal duties; and (6) that they can enforce these duties in the minutest particulars. The law of England has, in modern days, to a very great extent, rejected these pretensions and modified these views, but they have not as yet been radically removed : rather, how- ever, inmy opinion, because they produce but small prac- tical evils, than from any approval of the principles on which they rest." We have hitherto considered only the case of the husband seeking to enforce his conjugal rights ; but the same rules apply where the wife is the wronged party, and seeks redress. Cases in which Though, as a rule, either spouse is entitled to a decree for conjugal rights restitution of conjugal rights against the other, there are ' cases in which such decree will not be granted.

wife until a second ceremony is gone through after marriage, Lecture IV.

Source page 141

127 wife until a second ceremony is gone through after marriage, Lecture IV. a claim for restitution of conjugal rights will not be enforced where such ceremony has been neglected. * How far cruelty and ill-treatment would be an answer to a suit for restitution of conjugal rights is an important practical question. Judging from the precept of Manu that even the worst husband is to be revered as a god,^ it might seem that cruelty and ill-treatment would not excuse a wife's non-performance of conjugal duties. But the Hindu law is not really so cruel. It excuses a wife who is averse from a husband who is a lunatic, or a deadly sinner, or an eunuch, or a person afflicted with any loathsome disease.* Following this spirit of the Hindu law, the High Court of Bombay in one case * refused to decree restitution of conjugal rights in favor of a husband who was suffering from leprosy and S3rphilis. The mere taking of a » wife's jewels, or the marrying of a second wife, has been held to be no bar to a Hindu husband's claim for restitution of conjugal rights.^ In Moonshee Buzloor Ruhcem v. Shumsoo- nissa Begum, their Lordships of the Privy Council observed : " It seems to them clear that if cruelty in a degree rendering it unsafe for the wife to return to her husband's dominion were established, the Court might refuse to send her back.

Lecture IV. formance of the obligations which the marriage contract

Source page 142

128 LEGAL CONSEQUENCES OF MARRIAGE. Lecture IV. formance of the obligations which the marriage contract imposes on him for the benefit of the wife, might, if prop- erly proved, afford good gi^ounds for refusing to him the assistance of the Court. And as their Lordships have already- intimated, there may be cases in which the Court would qualify its interference by imposing terms on the husband."^ The question, what constitutes legal cruelty sufficient to bar a claim for restitution of conjugal rights, has been very fully discussed by Mr. Narayan Moreshvar Pendse,^ and the conclusion arrived at is, that the Hindu law on the question of what is legal cruelty between man and wife would not differ materially from the English law ; that to constitute legal cruelty there must be actual violence of such a character as to endanger personal health or safety, or there must be reasonable apprehension of it ; and that mere pain to the mental feelings, such for instance as would result from an unfounded charge of infi- delity, however wantonly caused, or keenly felt, would not come within the definition of legal cruelty. Where a husband had ill-treated a wife on account of a favorite mistress, and had agreed to separate from the wife, and had refused her maintenance during the period of sepa- ration, itwas held that he was not entitled to insist upon restitution of conjugal rights.* Conjugal infidelity in a wife would bar her claim for res- titution ofconjugal rights. The Hindu law allows a dis- loyal wife to be forsaken.* * 11 Moore's Indian Appeals, 615 ; 8 W.

A party who has renounced Hinduism is not entitled to Lecture IV.

Source page 143

129 A party who has renounced Hinduism is not entitled to Lecture IV. enforce a claim for restitution of conjugal rights against a husband or a wife who remains a Hindu. The Hindu law Effect of change of allows one to foi*sake a degraded husband, or a degraded claimreligion oa the for wife,^ and degradation from caste is a natural consequence restitution of conjugal rights, of apostacy. Act XXI of 1850 by enacting that loss of caste or change of religion shall not inflict on any person for- feiture ofmghts or property, seems to throw some doubt on the point. Arzoon Sahoo^ go a great way in support of the rule stated above. After holding that the right to the cus- tody ofchildren is a right within the meaning of Act XXI of 1850, the learned Judge observed : " The pleader for the appellant further argued that no one can be permitted so to use his right as to deprive any other person or persons of their rights. For insrtance, he says, a husband who becomes a Christian will not be permitted to claim the person of a wife who remains a Hindoo.

Lectuek IV. has been brought up, and in the enjoyment of which she

Source page 144

130 LEGAL CONSEQUENCES OF MARRIAGE. Lectuek IV. has been brought up, and in the enjoyment of which she married, that plea would also be a good plea." So, Sir Adam Bittleston on one occasion said •} " So far, however, as Hindoo law is concerned, it seems to me enough to say that, in my opinion, a Hindoo married woman who deserts her husband, becomes a convert to Ma- homedanism, and adopts the habits and lives as the wife of a Mussulman, is altogether out of the pale of Hindoo law ; that she ceases to have any recognized legal status according to that law, which counts her as one dead, or at least recog- nizes her existence only as an object of charity. This is not inconsistent with such passages as that cited from Manu : 'That neither by sale nor desertion can a wife be re- leased from her husband ;' which certainly have reference to persons still within the pale of Hindoo law. It seems to me, however, at variance with the spirit of Hindoo law, to hold that it concerns itself with a woman in such case, as far as to impose on her any obligation not to marry again, provided the second husband he not a Hindoo ; and if she does marry again, the validity of that marriage must, I think, depend upon the law of the sect to which she has become a convert." But I must tell you that the decisions of our Courts have not been uniform on this point. Burton is reported to have ordered the wife of a converted Brahman to be restored to him upon habeas corpus ; and in another case,' the Agra Sudder Court held that loss of caste by a husband could not dissolve his marriage, or bar his claim to the possession of the wife's person. * Rahmed Beebee v. Rokeya Beebee, 1 Norton's Leading Cases on Hindu Law, 12.

however, the feelings of those who really Lecture IV.

Source page 145

131 however, the feelings of those who really Lecture IV. Considering, profess the Hindu faith, it would be a matter of extreme hard- ship, tosay the least, to enforce restitution of conjugal rights in such cases ; and I should therefore venture to affirm that the view taken by Mr. Justice Campbell is the proper view of the matter. The case in which a Hindu husband or wife becomes a Act xxi of 1866. convert to Christianity, is provided for by Act XXI of 1866. Under that Act, a convert can sue a native husband or wife for conjugal society, and in case of refusal by such husband or wife to cohabit with the convert, on the ground of change of religion, the marriage between the parties shall be declar- ed dissolved. For suits for the restitution of conjugal rights, the period of limitation is two years, from the time when such restitu- tion is demanded and refused, the party refusing being of full age and sound mind. ' Adultery in Hindu law is both a deadly sin and a heinous Adultery, crime ; and both the adulterer and the adulteress are liable to punishment : moreover, the punishment for every act of adul- terous inclination, such as talking with the wife of another man in a secluded place, or touching her apparel and orna- ments, ismost minutely laid down.^ The Indian Penal Code, while it makes adultery an offence, exempts the female offender from punishment.

Lecture IV. feel that there are some peculiarities in the state of society

Source page 146

132 LEGAL CONSEQUENCES OF MAE RI AGE. Lecture IV. feel that there are some peculiarities in the state of society in this country, which may well lead a humane man to pause, before he determines to punish the infidelity of wives. The condition of the women of this country is unhappily very different from that of the women of England and France. They are married while still children. They are often neglected for other wives while still young. To make laws for punishing the inconstancy of the wife, while the law admits the privilege of the husband to fill his zena- na with women, is a course which we are most reluctant to Adultery and acts of adulterous inclination being crimes adopt." in Hindu law, it is maintained by Macnaghten, Colebrooke, and Ellis, that an action for damages will not lie against the wrong-doer.^ The last-named authority observes that though it is no doubt equitable to allow the husband to recover his marriage expenses against the seducer, yet there is no such remedy prescribed by the Hindu law, and that such cases ought to be governed only by that law.

Mullick, reported in Montriou's Cases of Hindu Law, p. 619, Lecture IV.

Source page 147

EFFECT OF MARRIAGE ON PERSONAL CAPACITY. 133 Mullick, reported in Montriou's Cases of Hindu Law, p. 619, Lecture IV. the Supreme Court of Calcutta held, that a civil action for criminal conversation was maintainable between Hindu parties. With reference to the special damage to be alleged in such cases, the learned editor in a note remarks : " It was suggested that in the case of a Hindu plaintiff, the loss of caste, or pollution of the zenana, and the like, might be laid as special damage in the declaration. In the in- stance ofa koolin brahmin with 100 wives, some of whom he may never have seen more than once, the allegation of the loss of the wife's society would not perhaps be strictly applicable.'* I come now to consider the effects of marriage on the Effects of . marriage on personal capacity ot the parties. personal By marriage a Hindu enters the second order, or the order of householder. Ill, 78—82. ■■* DattakaChandrika, 11,29 ; 1 Strange, 91 ; Macnaghten's Principles of Hindu Law, p.

Remarriage. In this respect the Hindu law is, no doubt, very much in

Source page 148

134 LEGAL CONSEQUENCES OF MARRIAGE. The next point for notice is the capacity of parties to marry again during the continuance of a former marriage. In this respect the Hindu law is, no doubt, very much in favor of the stronger sex. It prohibits the wife to marry again during the lifetime of the husband ; and even after his death, she was not, until the passing of the Widow Marriage Act, considered competent to remarry.^ And even where there is a custom among the lower castes for a wife to contract a second marriage, called a natra or pat, during the lifetime of the husband, on permis- sion obtained from a pwnchayet of her own caste, the Courts of British India have refused to recognize such custom, on account of its being immoral and opposed to the spirit of the Hindu law, and have held the parties to such remarriage liable to punishment under the Indian Penal Code, as guilty of offences relating to marriage.^ Where, however, a Hindu married woman deserts her husband, becomes a convert to Mahomedanism, and marries again, her case will not be governed by the Hindu law which regards her as dead.^ So where either party becomes a convert to Christianity, and is repudiated by the other, the convert may obtain a decree , declaring the marriage dissolved, and then by Act XXI of 1866, section 19, the wife, whether a convert or a Hindu, shall be competent to marry again, and the issue of such remarriage is declared to be legitimate, notwithstanding any provision of the Hindu law to the contrary. • See the texts cited in Vidyasagar's 2nd Tract on Polygamy, pp. 100 — 109, 199 — 204 ; see also Udvahatattwa, Inst, of Raghunandana, Vol. 62, 63 ; Shama Churn's Vyavastha Darpana, p.

A Hindu husband is always permitted to many again Lecture IV.

Source page 149

135 A Hindu husband is always permitted to many again Lecture IV. during the lifetime of his wife, though such marriage, if contracted without just cause, is strongly disapproved/ " The first is the wife married from a sense of duty," and the others are reofarded as married from sensual motives.* " With sorrow," says Daksa feelingly, " does he eat who has two contentious wives ; dissention, mutual enmity, mean- ness, and pain distract his mind;"^ but his commentator Jagannath, who lived at a time when kulinism and polygamy were widely prevalent, tries to soften the efi^ect of the text, by showing that if the wives be complacent, none of the evil consequences would follow. The causes which justify supersession of the wife and remarriage during her lifetime, are barrenness, ill-health, ill-temper, and misconduct of the wife.* It should be observed that supersession (which is adhi- Supersession. vedana in Sanskrit) here means, as explained in the Mitakshara and the Subodhini, merely the contracting of a second marriage while the first wife lives ; and it does not imply that the first wife is actually forsaken, or that her place is taken by the second, in respect of any matter except perhaps the husband's affection.^ It is true that Vijnanes- wara in one place uses supersession and desertion as synonymous, but Sulpani, another high authority, uses the term in the sense given above, and Jagannath appears to fol- low the latter.^ This view is further confirmed by the rules ' Virasvami Chetti v. Appasvami Chetti, 1 Mad., S75. * Colebrooke's Digest, Bk. IV, 51 ; Manu,III, 12, 13. ■ Colebrooke's Digest, Bk. IV, 65. * Ibid, 62—70 ; Manu, IX, 80, 81. * Mitakshara, Ch. XI, 2 (note), and 35 ; see also Yajnavalkya, I, 73, and commentary on that text in the Mitakshara. * Colebrooke's Digest, Bk.

regarding precedence among wives, which is settled by law

Source page 150

136 LEGAL CONSEQUENCES OF MARRIAGE. regarding precedence among wives, which is settled by law Lectuee IV. with a view to prevent disputes. Formerly when intermarriage between different castes was allowed, a wife of equal class with the husband was entitled to precedence over those of a different class.^ When there are several wives of the same class with the husband, the eldest, that is the one first married, should be associated with him in performing acts of religion, even though his younger wives be dearer to him.^ One of the most important of these acts, which has also a legal aspect, is the taking of a child in adoption. The wife who is asso- ciated with the adopter in that act, becomes the mother of the boy adopted, and her ancestors become the maternal ancestors of the adopted son.^ I need hardly add that this rule of precedence is merely a moral injunction, and is often violated out of partiality to a favorite wife. Present on If a wife is Superseded without just cause, Hindu law supersession, allows her some compensation for the wrong, inadequate ' though it be. The measure of the compensation is given by Yajnavalkya somewhat obscurely in these words :— " To a woman whose husband marries a second wife, must be given an equal sum on account of the supersession, pro- vided no separate property have been bestowed on her ; but if any have been assigned, let him allot half"* Com- mentators are not unanimous as to the interpretation of this text. According to Vijnaneswar, " equal " here means ' equal to the sum expended for the second marriage;' according ' Colebrooke's Digest, Bk.

REMARRIAGE OF CONVERT. 137

Source page 151

137 to Srikrishna Tarkalankar, it signiiies ' as much as is given to Lectuee IV. the second wife ;'^ while according to a third interpretation it means * as much as is promised.' Jagannath considers the first two interpretations to be unsatisfactory, and concludes that a rule on the subject remains yet to be framed, on due consideration of the difficulties attending the interpretation of the text.* All are agreed, however, as to this, that in estimating the value of the present, account is to be taken of what has been given to the woman as her separate property ; and that the word ' half ' (ardhaTn) in the above text means, not an exact half, but a part generally, or so much as taken together with the separate property already given, would be equal to the prescribed amount of compensation.^ Colebrooke accepts the interpretation of Vijnaneswar as the correct one.* The present on supersession is called the adhivedanika, and forms one of the different kinds of stridhan, or woman's property. It will be considered again in a future Lecture. A somewhat curious case once arose regarding a Hindu's Remarriage right of remarriage. A Hindu who had become a convert Christianity ^, ... Til .1 T. i^T.. relapsing to to (Jnristianity, and had married according to the Christian Hinduism, form, became again a professing Hindu, and married a Hindu woman in the Hindu form ; and the question was raised whether for this he had been rightly convicted of bigamy. The High Court of Madras answered this question in the negative, on the ground that the second marriage was not void by reason of the wife by the first marriage being still alive, as the Hindu law which governed > Mitakshara, Ch.

138 LEGAL CONSEQUENCES OF MARRIAGE,

Source page 152

138 LEGAL CONSEQUENCES OF MARRIAGE, Lecture IV. the prisoner's second marriage, would ignore the first marriage altogether.* Man and wife The ffindu law, while it yields to no system in maintain- one person in ,.p. • ^ t ^ ^ Hindu law ing the unity of man and wile, is more equitable than other onlv foi- reli- t t-i t i • i gioiis purposes, systems such as the English, as it leaves to women a much larger share of freedom in the exercise of their rights dur- ing coverture. Marriage according to the Vedas is a union of flesh with flesh and bone with bone." Accordingly Bri- haspati says : " In scripture and in the code of law, as well as in popular practice, a wife is declared to be half the body of her husband, equally sharing the fruit of pure and impure acts."^ So Manu : " The husband is even one person with his wife for all religious, not civil, purposes. Neither by sale nor desertion can a wife be released from her husband "* You will thus observe that the identity of person between man and wife does not extend to civil purposes ; and that therefore, the peculiar and often embarrassing consequences of the legal identity of husband and wife in the English law, such as that the husband cannot make a gift to the wife, and that the wife cannot sue or hold property alone,* do not exist in our law. A Hindu married woman may, during coverture, hold and enjoy property in her own right independently of her husband.^ It is true that Manu says : " Three persons — a wife, a son, and a slave — are declared by law to have in general no wealth exclusively their own : the wealth which they may earn is regularly acquired for ' 3 Mad., App. (Criminal Cases), vii. » Dayabhaga, Ch IV, Sec. I, 2. ♦ IX, 45, 46. • Stephen's Commentaries, Bk.

Coverture in Hindu law does not disqualify a woman wife may con-

Source page 153

WIFE MAY CONTRACT, 139 the man to whom they belong." * But commentators have Lecture IV. restricted the appHcation of this text so far as it relates to the wife, to such wealth only as is earned by mechanical arts and the like * A married woman may also obtain property by gift from her husband.' It may be observed that the tendency of modern legislation has been to remove all personal disqualifications for holding or enjoying property, arising from coverture. Thus the Indian Succession Act (section 4) provides that no person shall by marriage be- come incapable of doing any act in respect of his or her own property which he or she could have done if unmarried. Coverture in Hindu law does not disqualify a woman wife may con- from entering into contracts. " A Hindu female," observed Justice Nanabhai Haridas, " is not, on account of her sex, absolutely disqualified from entering into a contract. In the enumerations of persons incompetent to contract given by Manu, Yajnavalkya, Katyayana, and Gotama,* a woman, as such, is not included ; and marriage, whatever other efiect it may have, does not take away or destroy any capacity possessed by her in that respect."^ And Yajnavalkya and Katyayana by declaring that the wife is bound to pay the debts contracted by her, clearly recognize her power to contract.^ A Hindu married woman is, therefore, under the Indian Contract Act (section 11), competent to contract, if not disqualified by reason of minority or unsoundness of mind. * VIII, 416. » Vyavahara Mayukhu, Ch. Chapter on Stridhana ; Smriti Chandrika, Ch. IV, 67, 58, 61, 66. * Nathubhai Bhailal v.

Lecture IV. A Hindu married woman may sue and be sued alone and

Source page 154

140 LEGAL CONSEQUENCES OF MARRIAGE. A Hindu married woman may sue and be sued alone and in her own name.* She may also sue and be sued by her She may sne husbaud, thouffh such suits are discreditable and oup:ht not ^ ° aud be sued. to be encouraged.^ English law, while it disqualifies a feif}ie covert as a rule from managing her own property, entering inter contracts, and suing in her own name, gives her as a compensating advan- tage, exemption from liability to be sued alone except in cer- tain cases." The position of the Hindu wife is less advan- tageous in this respect, and so it ought to be. For, if the law allows her to manage her own property, to enter into contracts on account of herself, and to carry on her own suits, it is but fair that it should make her alone answerable for her own liabilities. She is not Under the Civil Procedure Code of 1859, though a Hindu arrest in exe- female, by reason of her not appearing in public, was exempt cution of civil n ^ • /-n process. irom personal appearance m Court as a party or a witness, yet such exemption was held * not to protect her from liability to arrest in execution of decree ; and in the present Code of Civil Procedure (section 640) it is expressly provided that women who are exempt from personal appearance in Court, are not on that account to be deemed exempt from arrest in execution of civil process. And though the present Code (Chapter XLIX) exempts certain classes of persons from arrest, married women as a class are not mentioned among them. Husband and As a consequence of the legal identity of husband and wife competent . m i n witnesses for or wife, and with a view to prevent as much as possible all occa- against each """ other. ' Bhoyrubcliuiider Doss and another v.

sions for domestic dissension and distrust, it was at one time Lecture IV.

Source page 155

HUSBAND AND WIFE MAY BE EACH OTHER'S WITNESSES. 141 sions for domestic dissension and distrust, it was at one time Lecture IV. a fundamental rule of English law that a husband or a wife could not be a competent witness for or against each other. The unsoundness of this rule has, however, been fully exposed by Bentham/ The Hindu law of evidence, which in many respects was much in advance of its age, and which has been justly ad- mired by Sir T. Strange,* never recognized any such strict rule. It is true that women were generally regarded as incompetent witnesses, and husband and wife according to some authorities were considered incompetent to be witnesses for each other ; but Manu says that on failure of witnesses duly qualified, evidence may be given by a woman, a child, and others.^ Before the Evidence Act of 1872, it was provided by Act II of 1855, section 20, that a husband or a wife should be competent to give evidence for or against each other in civil cases, but that communications made by the parties to each other during marriage should be deemed privileged; In the case of Queen v. Khyroollah* the question was raised whether a husband or a wife could give evidence for or against each other in a criminal case, and it was answerd in the affirmative by a majority of the Full Bench before which the case was heard.

Lecture IV. communications made by either spouse to the other during

Source page 156

142 LEGAL CONSEQUENCES OF MAERUGi:. Lecture IV. communications made by either spouse to the other during marriage shall not be ordinarily permitted to be disclosed. Husband and wife in Hindu law are not competent to be sureties for each other/ As, however, the relation of princi- pal and surety is governed, not by the Hindu law, but by the Contract Act, which does not declare their incompetency in this respect, this rule is now of little practical value. EfiFects of mar- The effect of marriage on the property of either spouse riage on the property of the ncxt claims OUT attention. With a view to aid the fusion of husband and _ ^ of the wife, two lives into one, and to promote domestic prosperity by the united exertion of both, the husband and the wife ought, it is said, to enjoy their property in common ; and it is upon this principle that the English law on the subject seems to he based. While the English law as it originally stood gives you one extreme, namely, absolute community of interest in favor of the husband, the Mahomedan law gives the other extreme of absolute diversity of interest in the parties ; and, I think, it would not be showing any undue partiality to our own system, if I say that the ' See Vivada Chintamani, Tagore's translation, p.

Hindu law adopts the just mean between the two. It lectube IV.

Source page 157

EFFECT OF MARRIAGE ON HUSBAND & WIFE'S PROPERTY. 143 Hindu law adopts the just mean between the two. It lectube IV. recognizes, as you will see, mutual community of interest, and at the same time allows the parties to hold separate property. You have seen that a text of Manu^ declares that the wife and certain other persons have no property in the wealth acquired by them, and that such wealth is acquired for the man to whom they belong ; and you have also seen that it is explained by commentators as relating only to wealth earned by the mechanical arts and the like. But in later Hindu law, the independent ownership of the wife over certain kinds of property (which will be more fully treated of hereafter under the head of stridhan) is clearly recognized. The sages have defined these different kinds of property ;2 and though there is some diiFerence of opinion among the different schools as to what constitutes stHdhan, or woman's separate property, a question which will be discussed in its proper place, they all admit the indepen- dent right of the wife over such property.^ Accordingly it has been held that the proposition, that whatever is acquired by a married woman during coverture belongs to her husband, has no foundation in the Hindu law.* But » VIII, 416. • Colebrooke's Digest, Bk.

Lecture IV. though the wife has independent ownership over her stH-

Source page 158

144 LEGAL CONSEQUENCES OF MARRIAGE. Lecture IV. though the wife has independent ownership over her stH- dhan, the community of interest of the parties is so far re- cognized asto allow the husband to use the wife's stridhan in times of pressing need, making repayment optional with him. The leading authorities of all the schools are agreed as to this.* The right to use the wife's stridhan in times of need is, however, personal in the husband, and it has been held that the wife's ornaments are not liable to be seized in execution of a decree against the husband, though he might have applied them if he had no other means, to obtain his discharge from legal custody.^ On the other hand, the wife's interest in the property of her husband is recognized with equal clearness. Apastamba says: " Partition does not take place between a wife and her lord. From the time of taking her hand in marriage her aid in all acts is required, as well as her participation in the pure and impure fruit of action, and her concurrence in the receipt of wealth : Sages do not deem it a theft, if a gift be made by a wife for a just cause during the absence of her husband."^ The question how far a husband or a wife is guilty of theft for taking each other's property, has been sometimes raised. In a case decided before the passing of the Indian Penal Code, it was held that a Hindu husband could not be convicted of robbing his wife, she being according to law completely under his control.* Whether under the Penal Code such a decision would be correct or not has been a ' See the references cited in note 3 of the preceding- page. ■ See 1 Strang-e, 27 ; 2 Strange, 23 ; Tukaram bin Ramkrishna v.

matter of some doubt/ One thing, however, is clear, that Lectube IV.

Source page 159

145 matter of some doubt/ One thing, however, is clear, that Lectube IV. section 27 of the Code will not protect the husband ; for, the wife's possession is his possession only when she holds the property in question on his account, and evidently she does not hold her stHdhan on account of her husband. If he takes the property of his wife without her consent, under the exceptional circumstances of necessity which justify his use of it, he would not be guilty of any offence, the ele- ment of dishonesty being wanting; if he exceeds those limits, he would, I apprehend, be guilty. A Hindu wife, who removes from the possession of her husband, and without his consent, her palla or stridhan, ' has been held not to be guilty of theft.^ The question of the rights of the husband and the wife over each other's property has been only incidentally touched upon here. The subject will be resumed in a future Lecture.3 That the wife has an interest in the property of her Wife entitled to a share on husband, is further shown by the fact that she is entitled to partition. a share of it at the time of partition. There is some difference of opinion among the different schools as to the manner in which such share is to be allotted. The leading text on this point is one of Yajnavalkya, which runs thus : " If he make the allotments equal, his wives, to whom no separate property has been given by the husband or the father-in-law, must be rendered partakers of like portions."* From this text, the Mitakshara^ deduces the following rules :— I.

Xecture IV. shares, his wives must each get a share equal to that of a

Source page 160

146 LEGAL CONSEQUENCES OF MARRIAGE. Xecture IV. shares, his wives must each get a share equal to that of a son, if they have received no stridhan from their husband or father-in-law, or equal to half of a son's share, if they have received any stridhan. (The latter part of the rule is deduced from the text of Yajnavalkya relating to presents on supersession ;^ and the word ' half ' (ccrdham) is defined to mean here not an exact half, but so much as would, together with the stridhan assigned, amount to the pres- cribed share.2) II. When a father makes an unequal partition, gi^'ing a superior allotment to the eldest son, and unequal shares to the others, his wives divide equally with his sons the amount left after deducting the distinctive portions, namely a twentieth part, &c., for the several sons (according to Ch. 4) ; and they take also their own distinctive portions, viz., the furnitures of the house and their ornaments. The Yyavahara Mayukhu, which in addition to the Mi- takshara is one of the leading authorities in the Bombay school, adopts the first of the above two rules, but is silent as to the share of the wife in the case of unequal partition, for this reason, that it holds such partition prohibited in the Kali age.^ In the Dravida school, the Smriti Chandrika gives the following exposition of Yajnavalkya's text — " The mean- ing of this text is, that where a father, even where he is old, chooses to render all, inclusive of himself, partakers of equal portions, then he ought to take, on account of each of his wives, a share equal to that taken by himself. Hence, the doubt, whether the above text of Yajnavalkya is not opposed to a passage of Harita, which declares « II, 148, already cited. * Mitakshara, Ch.

* Pai-tition does not take place between a wife and her Lecture IV.

Source page 161

147 * Pai-tition does not take place between a wife and her Lecture IV. lord,' is also removed. Thus everything is rendered right."* You will observe that according to this authority the wives do not get any shares separately assigned to them, but their husband takes a share on account of each of them. But the Parasara Madhavya, another high author- ity in Southern India, does not recognize this qualification as to the mode in which the wife's share is to be held.* In the Vivada Chintamani, one of the leading authorities of the Mithila school, the rule is substantially the same as that in the Mitakshara in the case of equal partition by the father ; but in the case of unequal partition, which for the present purpose according to Yachaspati Misra is where the father, giving smaller shares to his sons, takes the largest portion for his own use, he must give equal shares tO' his wives, out of his own property. *^ In the Bengal school, where the father is the absolute owner of all his property, whether ancestral or self-acquir- ed,* he can make a partition in any way, or withhold it at his pleasure. Where he makes an equal partition among his sons, according to the Dayabliaga,^ the Dayakrama Sangraha,* and the Dayatattwa,'^ his sonless wives are each entitled to a share equal to that of a son, or to half of such share, according as they are unprovided or provided with.. stHdhan. You will observe that there is a material point of difference between the Bengal school and the other schools. These latter allow shares to aU the wives, while the former gives them to those only that are sonless.

Lecture IV. reason for it is probably this : that the wives who have

Source page 162

148 LEGAL CONSEQUENCES OF MARRIAGE. Lecture IV. reason for it is probably this : that the wives who have sons would be supported by those sons out of the shares received by them, and it is only the sonless wives who stand in need of support, and ought to be the peculiar objects of their husband's care in this respect. The Bengal school differs from the others in another point also, namely, in maintaining that the share of the wife who has got stridhan, is an exact half of a son's share, and not merely as much as would, when added to such stridhan, make up her prescribed share. Jagannath, however, in one place,^ gives to the word haK (ardha) the general signification assigned to it in the Mitakshara. It should be noticed that the wife has no right to compel partition, and that her right to a share arises only when a partition is made by her husband ; and even then it is maintained by some^ that her share is not to be assigned to her separately, but is to be held by her husband on her account. As a general rule, it may be stated that when an equal partition is made by the father among his sons, under the Bengal school, his sonless wives get each a share which is * Colebrooke's Digest, Bk.

equal to, or half of, that of a son, according as they are lecture IV.

Source page 163

149 equal to, or half of, that of a son, according as they are lecture IV. unprovided or provided with stHdhan ; and in the other schools, all his wives get each a share, which together with her stHdhan (received from her husband's family), if any, is equal to a son's share. It has been held by the High Court of Bengal in the case of Lalljeet Singh v. Raj Coomar Singh^ that under the Mitakshara, the wife being entitled to a share on parti- tion, a suit for partition can not be maintained by the sons against their father, without making the mother a party to it. The extent of the wife's interest in the share allotted to her on partition will be considered hereafter.^ The duty of maintaining the wife and other dependent wife entitled members of the family who are in want, is strictly enjoined nance. by the Hindu law, and even censurable acts, such as receiving presents from a low person, are excused if done with a view to provide maintenance for them.* The maxim that one must be just before he can be allowed to be generous, is beautifully expressed by Manu, thus :— " He who bestows gifts on strangers with a view to worldly fame, while he suffers his family to live in distress, though he has power to support them, touches his lips with honey, but swallows poison : such virtue is counteifeit." (XI, 9.) The wife can enforce her claim for maintenance if it is denied,* and such claim is not affected by her supersession.^ * 20 W. 3 Manu, III, 55—69 ; IV, 251 ; IX, 74, 95. * Dayabhaga, Ch. I, 25 ; Vyavahara Mayukha, XX, 1 ; Colebrooke's Digest, Bk.

Lectube IV. A wife forsaken without fault may, according to Yajna-

Source page 164

150 LEGAL CONSEQUENCES OF MARRIAGE. A wife forsaken without fault may, according to Yajna- valkya, compel her husband to pay her a third part of his wealth, or if poor, to provide maintenance for her.^ From the alternative provisions of this rule, it would seem- that the third part of the deserting husband's estate is mentioned as the ultimate measure of the wife's mainte- nance, and is directed to be given to her in lieu of mainte- nance, ajid also as a sort of punishment for the offending husband. Though according to some opinions,^ an unjustly deserted wife may claim and recover a third of her hus- band's wealth, yet there are opinions to the contrary ;* and considering the perpetual dependence of woman, and the possibility of the husband and the wife being reconciled to each other at any time, the penal provision in Yajna- valkya's text would not, I think, be enforced by our Courts ; and the wife would be allowed maintenance only, though in assessing its amount, the husband's means and conduct would be taken into due consideration. As a rule, the wife is entitled to maintenance from the husband alone ; and so long as he is alive, neither his nor her relations are bound to support her.* Where, however, a husband deserts his wife, and is not heard of for some years, it has been held that though his relations are not under any personal liability to support her, yet if they have property of the husband in their hands, and the proceeds thereof are not accounted for by them, the wife * Colebrooke's Digest, Bk. 2 See 2 Strange, 45,48, 51. * Macnaghten's Precedents of Hindu Law, Ch. II, Case iii. * lyagaru Soobaroyadoo v. lyagaru Sashama, Mad.

is entitled to receive maintenance from those proceeds to Lecture IT.

Source page 165

151 is entitled to receive maintenance from those proceeds to Lecture IT. an extent not exceeding one-third of the amount/ So, where the husband is excluded from inheritance by reason of disqualification, his sonless wives, if chaste, are entitled to maintenance from those who inherit to the exclu- sion of their husband. This right to maintenance is founded on a text of Yajnavalkya,^ which is adopted by the com- mentators ofall the schools.^ No express provision is made for the wives who have sons, because in their case, these sons themselves being the heirs to the exclusion of their father,* there would be no difficulty in their being supported by the heirs. when allowed The wife's right to maintenance and her conjugal duty Maintenance of obedience to her husband, stand in a reciprocal relation to a wife living to each other, and the wife can have no claim to mainte- apart. nance ifshe refuses to live with her husband without just cause.^ In Sitanath Mookerjee v. Sreemutty Haimahutty Dahee,^ in which a wife living apart from her husband on account of unkind treatment claimed maintenance, Sir Richard Garth, C. J., observed : " Now what is the Hindu law upon this subject ? " It is clear that, according to that law, a wife's first duty to her husband is to submit herself obediently to his authority, and to remain under his roof and protection ; and although it^might be^very difficult to deduce from the authorities at * Ramabai r. Trimbak Ganesh Desai, 9 Bom., 283. • II, 142. " Mitakshara, Ch. V, 43. * Yajnavalkya, II, 141 ; Mitakshara, Ch.

Lecture IV. the present day any definite rule as to the causes which

Source page 166

152 LEGAL CONSEQUENCES OF MARRIAGE. Lecture IV. the present day any definite rule as to the causes which would justify a wife in leaving her husband's house, it may safely be affirmed that mere unkindness or neglect short of cruelty would not be a sufficient justification. " That the law of modem times does recognize the right of the wife to leave her husband in certain cases of cruelty is apparent from the provision introduced into the first Code of Criminal Procedure in the year 1861, and repro- duced inthe existing Code in Section 536, which provides that a man may be ordered to maintain his wife who re- fuses tolive with him if the Magistrate be satisfied that the husband is ' living in adultery, or has hahitiially treated his wife with cruelty! But it is further enacted by the same Section, that no wife shall be entitled to receive this allowance from her husband if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by consent. " We are not at all prepared to say that the jurisdiction or powers of the Civil Courts are bound or limited in any degree by this Section of the Criminal Code ; but we do consider that in such a case as the present these provisions may be usefully regarded as a guide to what the Legisla- ture considered to be the correct law upon the subject ; and unless we can see that the husband in this instance has refused to maintain his wife in his house, or has been guilty of acts of cruelty, which would justify her in leaving his protection, she is not entitled to the relief for which she What causes would justify the wife's refusal to live with prays." her husband, I have already to some extent considered, , when treating of restitution of conjugal rights. When any of these justifying causes (which consist of cruelty or ill-

treatment in any aggravated form) exists, the wife is en- Lectube IV.

Source page 167

153 treatment in any aggravated form) exists, the wife is en- Lectube IV. titled to live apart from her husband, and to claim separate maintenance from him. This separate living at the expense of the husband, corresponds to what is called judicial separation in the English law ; and as the Hindu law does not recognize divorce, this is the only remedy that the Hindu wife has against marital injustice and oppression. Where a Hindu husband keeps a Mahomedan mistress, and by such conduct compels his wife, under her religious feelings, to leave the house, and she lives apart and chastely, she is entitled to claim maintenance from him.^ Indeed* Colebrooke and Ellis go further, and maintain that the mere entertaining of a concubine is a justification for the wife's living apart, and would subject the husband to the obligation of maintaining her separately.^ But such a broad rule would be contrary to the precept of Manu,^ and its correctness has since been questioned.* So where a Hindu wife had left her husband's house, and carried on an independent calling, and the husband did not object to the calling, or give her notice to return, it has been held that if she is subsequently desirous of returning to her husband's house, and he declines to main- tain her, she is entitled to maintenance.* Conjugal. infidelity would of course bar a wife's claim whenMaintenance forfeited. for maintenance. Yajnavalkya says : " Let a man keep a disloyal wife deprived of her rights, squalid, maintained on a ball of grain alone, subdued and only suffered to repose on the meanest bed.'" So Narada prescribes ' the » Lalla Gobind Pershad v. R., 476. * Colebrooke's Digest, Bk.

Lecttire rv. lowest bed, the meanest food, the worst habitation

Source page 168

154 LEGAL CONSEQUENCES OF MARRIAGE. Lecttire rv. lowest bed, the meanest food, the worst habitation ' as a punishment for the disloyal wife ; and Manu permits the husband either to forsake her, or to subject her to penance and mortification.! Accordingly it has been held by the Courts of India that an unchaste wife is not entitled to maintenance.* But be it said to the credit of our law, that whilst show- ing the utmost abhorrence towards unchastity, it does not condemn the unchaste wife to die of starvation, or to be forced by absolute necessity to lead a life of shame and misery for one false step. Though it bars her right to maintenance as a source of wealth, it allows her what has been styled starving maintenance, that is, bare food and raiment, as the very texts cited above will show. Though • an opposite rule has, it seems, been sometimes followed,' yet the true humane spirit of the Hindu law has been generally recognized.* Bate of main- The Civil Courts, it has been held, have power to fix teuanee. the rate of maintenance payable by the husband to the wife, in cases where for lawful cause she is residing apart from him, and also power to make an order that mainte- nance at that rate shall be paid in future, subject to any modification that future circumstances may require.* The minimun rate of maintenance is prescribed by the Hindu law with some precision,^ but the rule had reference to a » Colebrooke's Digest, Bk. Ilata Narayanan Nambudiri, 1 Mad., 372 ; 2 Strange 39. ' Ragava Chary v.

MAINTENANCE HOW RECOVERED. 155

Source page 169

155 different state of society, and is not of much practical Lecture IV. value now. At the present day, the rate will have to be determined by the Court after considering the means of the husband and other circumstances in each ease. It was held by the Madras Sadr Court in some cases mainteuaaca.Arrears of that arrears of maintenance could not be recovered; but those decisions have since been dissented from, as there is no authority in the Hindu law to support them.* The only bar to the recovery of such arrears is lapse of iAme. Under the present Limitation Law (Act XV of 1877, Sche- dule II, No. 128), a claim for arrears of maintenance is not barred if brought within twelve yearsv Besides a civil suit, there is another mode, more simple Recovery of , , • 1 1 • 1 •/» • maintenance and less expensive, by wnich a wile may recover mamte- under the Cod« nance from her husband. Criminal Procedure, which corresponds to section 316 of the old Code of 1861, provides that if a person having sufficient means neglects or refuses to maintain his wife, a Magistrate having jurisdiction may, upon due proof thereof, order such person to pay from the date of such order, maintenance at such rate not exceeding fifty rupees a month as such Magistrate may think reasonable.

Lecture IV. on condition of ber living with him, and his wife refuses

Source page 170

156 LEGAL CONSEQUENCES OF MARRIAGE, Lecture IV. on condition of ber living with him, and his wife refuses to live with him, such Magistrate may consider any grounds of refusal stated by such wife ; and may make the order allowed by this section notwithstanding such offer, if he is satisfied that such person is living in adultery, or that he has habitually treated his wife with cruelty. " No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by con- sent."It has been held,' however, that up to the time when the father allows his daughter to go to the house of her husband, and when, by the custom of Hindu society, she would prob- ably go, the husband incurs no liability in respect of her maintenance under this section. A Christian wife of a Christian convert is entitled to claim maintenance under the Code of Criminal Procedure, not- withstanding that her husband renounces Christianity, and reverts to Hinduism and marries a second wife.^ Maintenance of Though the Hindu law does not, like the Roman law,* allow concubinage, yet according to some authorities, a con- cubine ofa Hindu is entitled to maintenance.* But a woman living in adultery cannot claim maintenance from the adulterer.^ Husband and We have sccn abovc, that a Hindu married woman is not wife h<nv far , x • i bound by each incompetent to enter mto contracts. It remains to be seen other's con- - - — tracts. R., Cr., 30. * 4 Mad., Criminal Cases, iii. * Mackenzie's Roman Law, p. I, 48 ; 1 Strange, 71 ; Vyavabara Mayukha, Cb. VIII, 5 ; 1 W. & B., 93 ; Kbemkor v.

how far the husband and the wife are bound by each other's iKcmiE IV.

Source page 171

CONTRACT BY HUSBAND OR WIFE HOW FAR BINDING. 157 how far the husband and the wife are bound by each other's iKcmiE IV. Under the English law, a. feme covert as a rule is incapable of contracting except as her husband's agent ; but her contracts for supplying hei-self with necessaries suitable to her station in life, are binding on her husband/ In the Hindu law, according to Yajnavalkya : " Neither shall a wife or mother be in general compelled to pay a debt contracted by her husband or son, nor a father to pay a debt contracted by his son, unless it were for the behoof of the family ; nor a husband to pay a debt con- tracted byhis wife."' Narada declares : *' A debt contracted by the wife shall by no means bind the husband, unless it were for necessaries at a time of great distress."* And so Katyayana : " A debt which is contracted by a wife or mother for the behoof of the family, when her husband or son is gone to a foreign countiy, after authorizing the loan, must be paid by the husband or son."* Thus you will observe that a Hindu husband is bound by the contracts of his wife, when they are entered into by her with his authority, express or implied, or for the support of his family under necessity. A special rule is laid down by Yajnavalkya for certain cases : " If the wife of a herdsman, a vinter, a dancer, a washerman, or a hunter, contract a debt, the husband shall pay it ; because his livelihood chiefly depends upon the labor of such a wife."^ And there are also texts of Brihaspati and Narada to the same effect. Upon these texts Jagannath has the following commentary :— " Here ' washer ' and the rest are mentioned indetermin- * Stephen's Commentaries, Bk. V, 207. • Ibid, 209. " Ibid, 219. * Ibid, 216.

Lecture IV. ately. In fact, whatever be his class, if the husbaad's

Source page 172

158 LEGAL CONSEQUENCES OF MARRIAGE. In fact, whatever be his class, if the husbaad's livelihood depend chiefly on the labor of his wife, he must discharge a debt contracted by her, whether he be a priest or a washer : but he whose livelihood does not depend on his wife, whether he be a washer or a priest, shall not pay his wife's debt. This is noticed by Misra : he says, ' in other cases also, wherever the wife has the chief management, there is no restriction of class ; the wife alone conducts all affairs, the husband is absolutely ignorant of every trans- action.' Accordingly it i& observed, that in the province of Cdmar'dpa, almost every civil transaction is now conducted by women, " But this is merely a vague description ; for a debt con- tracted bythe wife of a Brdhmana, and so forth, for the support of the family, must also be paid by the chief of that family. From the reason assigned, " because his livelihood chiefly depends on the labour of such a wife," it appears that any other persons of whom the livelihood de- pends on the labour of their wives, must pay the debt contracted by those wives. This is admitted in the MitaJc- shara. Chanddswara also makes the same observation, — * The circumstance of his livelihood depending on the labour of his wife is particularly intended ; not any restriction of class.' "^ The special cases, therefore, come under the general rule, as cases of implied authority.

Upon pretty much the same grounds as the English law. A Lecture TV.

Source page 173

CONTRACT BY HUSBAND OR WIFE HOW FAR BINDING. 159 Upon pretty much the same grounds as the English law. A Lecture TV. person dealing with a wife and seeking to charge her hus- band must shew either that the wife is living with her husband and managing the household affairs — in which case an implied agency to buy necessaries is presumed — or, he must shew the existence of such a state of things as would warrant her in living apart from her husband and claiming support or maintenance — when of course the law woidd give her an implied authority to bind him for neces- saries supplied to her during such separation, in the event of his not providing her with maintenance." Though matters of contract, when not provided for by the Contract Act, are to be governed, not by the Hindu law, but by principles of justice, equity, and good conscience,* yet, as on the point in question, that law is in conformity with jus- tice, equity, and good conscience, it has been generally con- sulted by our Courts in determining the liability of the husband for the acts of the wife.* Where a wife voluntarily separates from her husband without any justifying cause, she, and not her husband, is liable for debts contracted by her (even for necessaries), but her liability has been declared not to be personal, but to be limited to the extent of any stridhan she may have." The reason for this limitation is not however very clearly stated. According to the Vyavahara Maynkha, he who takes the Bombay Act wife of a deceased person, is bound to pay the debts of such * See Deen Doyal Poramanik v. L.R., 1 Cal., 92, and tlie authorities cited there. ' Macnaghten's Precedents of Hindu Law, Ch. R., 1 Bom., 121. • Nathubhai Bhailal v.

Lecture IV. person on failure of those who take his assets.* This rule,

Source page 174

160 LEGAL CONSEQUENCES OF MARRIAGE. Lecture IV. person on failure of those who take his assets.* This rule, which obtained in the Bombay Presidency, and was an evident hardship upon any one marrying a Hindu widow, has been now abrogated by the Bombay Hindu Heirs' Relief Act (Bombay Act VII of 1866, section 4). A Hindu wife is not bound by her husband's acts in rela- tion to her property. He has no power to part with her property without her consent, or to affect her interest in her own property by any document that he may execute.* Husband or When the death of any person is caused by an actionable wife entitled to compensation wrouor, the husbaud or wife of such person is, under Act ActXIII ^ under of 1855. XIII of 1855, one of the parties entitled to compensation for the loss occasioned. Effects of I come now to the effects of marriage on the offspring of marriage on offspring — the parties.

that law in this respect, that it will not allow a person, Lecture IV.

Source page 175

161 that law in this respect, that it will not allow a person, Lecture IV. though legitimate by the law of his domicile, to inherit real property in England, unless he is legitimate by the law of that country, as has been finally settled by the House of Lords in Birtivhistle v. VardilV Blackstone justly praises the law of his own country, as tending to promote good morals and prevent illicit cohabitation, at the same time that it makes due allowance for the frailties of human nature.* The Hindu law of legitimacy is more strict than even the English law. Manu defines the aurasa son or son of the body, thus :— " Him whom a man has begotten on his own wedded wife, let him know to be the first in rank, as the son of his body." (IX, 166.) And to the same effect are the texts of Vasistha, Devala, Baudhayana, Apastamba, and Yajnaval- kya.' According to the Hindu sages, therefore, in order to constitute legitimacy, there must be not only birth but also procreation in lawful wedlock; and some of the leading com- mentators, such as Kulluka, Vijnaneswar, and Nilkantha, confirm this view of their texts.* The Privy Council have however, taken a different view. Sir Barnes Peacock in delivering the judgment of the Judicial Committee in the case of Pedda Amani v. ZeTnindar of Marungapuri,'^ ob- served :" The point of illegitimacy being established by proof that the procreation was before marriage, had never suggested itself to the learned Counsel for the Appellant at the time of the trial, nor does it appear from the authorities 1 7 Clark and Finnelly, 895. » Stephen's Commentaries, Bk. 296, 297, 6th ed. *' Colebrooke's Digest, Bk.

Lecture IV. cited to have been distinctly laid down that, according to

Source page 176

162 LEGAL CONSEQUENCES OF MARRIAGE. Lecture IV. cited to have been distinctly laid down that, according to Hindu law, in order to render a child legitimate, the pro- creation as well as the birth must take place after marriage. That would be a most inconvenient doctrine. If it is the law that law must be administered. Their Lordships, how- ever, donot think that it is the Hindu law. But with every respect that is due to the decision of the highest tribunal for India, I may be permitted to say that the doctrine that procreation in lawful wedlock is necessary to constitute legitimacy, is not only supported by the language of the texts cited above, but is also in accordance with the general spirit of the Hindu law, by which the nuptial rites are primarily meant only for virgins ; while the necessity of marrying girls before puberty, reduces the prac- tical inconvenience of the doctrine within the narrowest possible limits.

a feeling which identifies the honor of a family with that Lectubr IV.

Source page 177

EFFECT OF INTERATARRIAGE ON LEGITIMACY. 163 a feeling which identifies the honor of a family with that Lectubr IV. of its female members, and regards the family as raised or lowered in rank, according as its female members are married in superior or inferior families* The offepring of the former ©r allowable kind of intermarriage were called amdomaja'^ that is, bom in the direct order of the tribes, and were a.V- lowed to inherit their father's property, though in inferior shares ; " and the issue of the prohibited form of intermar- riage were called pratilomaja, that is, bom in the inverse order of the tribes,, and had no claim upon the father except for maintenance.* In the Kali age, inteimaiTiage between different castes is ^ prohibited ;* and. though the authorities are not unanimous as to how far this prohibition extends to intermarriage be*- tween different castes of the Sudra class, in Bengal, as you have already seen, their preponderance is in favor of holding such prohibition to be universal and unqualified.^ Now let us see in the first place how the law of legiti- macy stands, apart from the prohibition against intermar- riage. Baudhayana defines a legitimate son thus : " A son who was begotten by a. man himself on his wedded wife of equal class, let him know to be the legitimate son of his body."^ Kulluka Bhatta in his gloss on the text of Manu' quoted above, says, that the wedded wife means the wedded * Anulomaliterallj means iw t/te direction of the hair, i. e., in a regular course ; and p7'atilo?na means against the hair, i. e.,.contrary to the regular course. V, 171. commentary. * See Udvahatattwa, Inst., Vol. 62 ; Manu, General Note, VI ; Vyavastha Darpana.pp, 14, 15. * See Narain Dhara v. R., 1 Calc, 1^ and tlie cases cited there. * Colebrooke's Digest, Bk.

Lecture IV. wife of equal class. Yajnavalkya defines a legitimate son

Source page 178

164 LEGAL CONSEQUENCES OF MARRIAGE. Yajnavalkya defines a legitimate son to be a son procreated on the lawful wedded wife, and ' the lawful wedded wife'^ (dhatifna patni) is explained in the Mitakshara^ to mean a woman of equal tribe legally espoused, though in another place^ in the same commentary, a son by a wife of an inferior class is also considered legitimate. The Viramitrodaya takes this latter view ; while according to Chandeswar and the Parijata, *a woman of equal class' means a woman of the twice-born class for a twice-born man, and a Sudra woman for a man of the Sudra class.* Balambhatta explains * lawful' in Yajnavalkya's text to imply exclusion of a woman of a superior class, who cannot be legally taken in marriage f so that according to this authority, the offspring of intermamage between dif- ferent castes would not be illegitimate, except where such intermarriage is illegal by reason of the woman belonging to a superior tribe. The son of a twice-born man by a Sudra woman has however a very inferior right to inherit the property of his father.^ The opinion of Balambhatta seems to be the one that accords best with reason ; for legality of marriage and legitimacy of issue ought always to be connected as cause and effect. In the next place, marriage between persons of different castes being now prohibited, it would follow from what has been just said, that the issue of such marriage must be illegitimate. Some writers maintain that though equality of caste is essential to a legal marriage, it is not essential > II, 128. * Ch.

to the legitimacy of the issue/ This, however, is supported Lecture IV.

Source page 179

PRESUMPTION OF LEGITIMACY, 165 to the legitimacy of the issue/ This, however, is supported Lecture IV. neither by reason nor by authority. The definitions of legitimacy examined above, all require a legal maniage as a necessary condition ; and where that is wanting, it is hard to see how the issue can be legitimate. There is one point connected with the present topic which ought not to be passed over altogether. The heritable rights of sons by women of different tribes is treated of at great length in the Mitakshara* and the Dayabhaga ;' and as both these works have been written in the Kali or the present age, it might be inferred that such sons are now so far legi- timate asto be entitled to share the heritage. Such inference, however, would not be well founded. The law is always in favor of presuming man'iage and Presumption of . . . legitimacy. legitimacy, and the Privy Council have held^ that a mariiage ' 1 Strange, 40. * q^ j g^^ ym 3 ch.

Bastard's right The position of illegitimate children in the Hindu law is

Source page 180

166 LEGAL coif SEQUENCES OF MARRIAGE. Lecture IV. de facto being^ established, and the children being recognized by their father as legitimate, it would require the very strongest evidence to show that the law denied to these children their presumable legal status, on the ground of their mother's incapacity to contract a marriage. Bastard's right The position of illegitimate children in the Hindu law is ^ " to inherit. somewhat different from their position in the English law. In the latter system, the bastard is regarded as Sbjilius nullius, a son of nobody; and for purposes ©f inherit- ance, he has no legal relationship with any one in the ascending or the collateral line, and his only relations are his own legitimate descendants.* In the Hindu law the ' illegitimate son of a regenerate man is always excluded from inheritance ; but in the case of a Sudra, the illegitimate son of a particular description, namely, the son born of an unmarried female slave or slave's female slave, inherits his father's property.* This special rule in the case of Sudras, which Sir T. Strange' attributes to the contempt in which they are held by the Hindu law, is deduced by the leading commentators of all the schools from the following texts :— " A son begotten by a man of the servile class on his female slave, or on the femalo slave of his slave, may take a share of the heritage if permitted : thus is the law estab- lished. (Manu, IX, 179.) " Even a son begotten by a Sudra on a female slave may take a share by his father's choice." (Yajnavalkya, II, 133.) ' Stephen's Commentaries, Bk. IV, 29—32 ; Macnaghten's Precedents of Hindu Law, p.

bastard's right to inherit. 167

Source page 181

167 It has been sometimes maintained that the authorities Lecture IV, would support the broad proposition that a Sudra's illegiti- mate son .of every description would inherit to his father ;* and a slight inaccuracy which occurs in Cole- brooke's translation of the Dayabhaga (Chap. Justice Romesh Chunder Mitter, in his elaborate judgment in Narain Dhara v. Rakhal Gain,- has clearly pointed out this error, and de- duced the correct rule given above, after a fuU examination of the authorities on the subject. The meaning of the term female slave (dasi) in the above rule, has been the subject of much contention in our Courts, and the authorities are not unanimous on the sub- j>ect. They seem, however, to favor the view that a "female slave" here means not necessarily a slave bought or taken captive, but includes a continuous concubine, provided that the intercourse is neither adulterous nor incestuous.^ The case of Rahi v. The question how far one illegitimate branch can inherit from another was raised in the case of Myna Bai v.

Lecture IV. adultery with him ; and upon the death of one of these sons,

Source page 182

168 LEGAL CONSEQUENCES OF MARRIAGE. Lecture IV. adultery with him ; and upon the death of one of these sons, the other claimed his estate as his heir. The Privy Council held^ that the parties had been rightly considered to be Hindus, but remitted the case to India for further investi- gation asto collateral heirship under the peculiar circum- stances ofthe case. Thereupon the High Court of Madras^ held that illegitimate sons could inherit the property of their mother and of one another. Maintenance of That a man should be bound to maintain his legitimate children. children is natural and obvious ; and the same texts that enjoin him to support his wife, may be cited also for the present purpose.' It is equally clear that a man is bound to maintain his illegitimate children. If illicit cohabitation is sinful, the denying of support to the innocent offspring of such cohabit- ation would only aggravate the offence.

just seen, and in other cases to maintenance ; nor is Lectube IV.

Source page 183

169 just seen, and in other cases to maintenance ; nor is Lectube IV. have it necessary in this latter class of cases that the mother of the illegitimate child should be a concubine possessing any peculiar status in the family of the father.^ The mainte- nance ofan illegitimate son has been held to be a charge on the estate of his father.' The claim of an illegitimate son for maintenance has been held not liable to be defeated by the fact of his being the issue of adulterous intercourse.* The foregoing rules apply to claims by illegitimate chil- dren for maintenance out of the estate of their father after his death, and are based upon the general principle of the Hindu law, that persons excluded from inheritance by reason of certain disqualifications (of which illegitimacy may be regarded as one) are entitled to maintenance out of the estate they are excluded from.^ The reported deci- sions are all under the law of the schools that follow the Mitakshara ; but there is no reason to suppose that a different rule would be followed under the law of Bengal. During the father's lifetime, children, whether legitimate or illegitimate, are entitled to maintenance from him, only so long as they are young and unable to provide for them- selves. ' Inderun Valungypooly Taver v. C), 41. ' Muttusawmy Jagavira Yettapa v. Venkatasuba Yettia, 2 Mad., 293 ; and the judgment of the Privy Council in the same case in 11 W. Venkateswara Yettia, 5 Mad., 405. * Rahi V. R., 1 Bom., 117 ; Veraramuthi Udayan v.

Lecture IV. In addition to the remedy by civil suit, the same summary

Source page 184

170 LEGAL CONSEQUENCES OF MARRIAGE. In addition to the remedy by civil suit, the same summary mode (Act X of 1872, section 536) is prescribed for children, whether legitimate or illegitimate, as that for the wife, to enable them to recover maintenance from their father. The minority of the father would be no ground for ex- cusing him from the necessity of providing support for his child, whether legitimate or illegitimate ; but before any order for maintenance can be made, the law requires it to be proved that the father has sufficient means.' Under what circumstances a father is bound to maintain his child, it is not very easy to define. By the English law, a father is bound to maintain his children, of whatever age, when in want, and unable through infancy, disease, or accident, to provide for themselves.^ Our Code of Criminal Procedure enacts that children are entitled to maintenance if unable to maintain themselves ; and as the grounds of inability are not specified in the Code, it would follow that inability from any cause, such as infancy, disease, or the like, would entitle a child to maintenance. Nor is the spirit of the Hindu law different from this, as may be seen from the following text of Yajnavalkya :'— " After assigning a sufficient support to infants, to a married daughter residing in the house of her father, to aged persons, pregnant women, persons afflicted with dis- ease, damsels yet unmarried, guests and servants, the hus- band and wife may enjoy the residue." The High Court of Bengal has, however, held that, under the Hindu law, a father is not bound to maintain a * The Queen on the information of Mussamut Narain Koer v. P., 123. • Stephen's Commentaries, Bk.

grown up son, even if he is laboring under a temporary Lecture IV,

Source page 185

171 grown up son, even if he is laboring under a temporary Lecture IV, disorder/ At what age a child should be deemed grown up, does not appear. Ordinarily the claim for maintenance would last till majority is attained, though long before that time many persons begin to earn their own Kvelihood. But it should be remembered that children are entitled to maintenance only when they are in want and unable to maintain themselves. Under the Mitakshara law, which recognizes the joint ownership of the father and the son in ancestral property ,* the son, if unable to enforce partition by reason of such property being in any case impartible, can sue his father for maiutenance ; and this right of the son is not, it seems, affected by the fact of his having attained maturity, or of his not being in want.* Where a son or other member of an undivided Hindu family is competent to sue for partition, a suit for maintenance will not Ke.* The father is the natural guardian of his legitimate Custody of children, and is entitled to the custody of their persons in preference to all others until they attain majority.* But in the case of a female child, the father's right, as you have seen, ceases after her marriage, when she comes under the guar- dianship ofher husband. So long as the father, not being himself a minor, is alive, the law dispenses with the appoint- ment of any guardian of the persons of his minor children.^ * Prem Chand Pepara v. Gunpatsing, 12 Bom., 94. * 12 Bom., 96 note. • Colebrooke'8 Digest, Bk.

LicTURE IV. The mother's right to the guardianship and custody of

Source page 186

172 LEGAL CONSEQUENCES OF MARRIAGE. The mother's right to the guardianship and custody of her children is inferior only to that of the father, though for certain purposes, such as giving a daughter in marriage, and the like, the Hindu law subjects her, to some extent, to the control of her husband's kinsmen.^ In some cases the mother may be entitled to the custody of the children in preference to the father. The nurture of children is, by nature as well as by our law,^ the peculiar duty of the mother ; and so where they are of extremely tender age, and the mother, in consequence of the father's profligacy or misconduct, is compelled to live apart from him, it is as necessary for the children that they should be placed under their mother's care, as it is just to the mother that she should not be deprived of the solace of having the custody of her children. A Hindu father's change of religion would not, however, bar his right to the custody of his infant children, though, if they have attained years of discretion, their wishes in the matter would be consulted by the Court.^ The custody of illegitimate children in other systems of law belongs to the mother.* The rule is based upon obvious grounds of necessity and convenience, and there is no reason why a different rule should be followed in the Hindu law in the absence of any express provision to the contrary. Claims to the custody of minors are to be enforced accord- ing to the provisions of Act IX of 1861. And a person * 1 Strange, 72; Colebrooke's Digest, Bk.

who kidnaps from lawful custody a minor under fourteen Lecture IV.

Source page 187

PATERNAL POWER UNDER THE HINDU LAW. 173 who kidnaps from lawful custody a minor under fourteen Lecture IV. years if a male, or sixteen years if a female, is liable to be punished under section 363 of the Indian Penal Code. Though the custody of children may sometimes belong to Right to f^ive or take a son the mother, the right of giving a son in adoption belongs exclu- in adoption. sively to the father ; and if the mother sometimes does exercise this right, it is only with the permission of her husband.' So also the right of taking a son in adoption in the dattakco form can be exercised by a woman only with the permission of her husband, or, according to the law in some parts of India, with the permission of his kinsmen after his death.* This brings us to the consideration of the paternal Paternal power under the authority under the Hindu law. Much of the power which Hindu law. in advanced and well-organized society is placed in the hands of the State, was, in feebly-organized primitive society, exer- cised bythe head of each family within his own domestic circle ; and accordingly, in ancient law, the authority of the father was almost unbounded. In the Roman law it is called the patria potestas, and originally included the power of life and death.^ The Hindu law, as far as tradition tells us was never so inhuman as that, though traces of the existence of an unlimited power in other respects are still evident. Thus Vasistha, after premising that the son owes his existence to his parents, observes : " Both parents have power, for just reasons, to give, to sell, or to desert him ; but let no man give or accept an only son, since he must remain to raise up a progeny for the obsequies of ancestors."'* But ' Manu, IX, 168 ; Dattaka Mimansa, I, 15 ; Dattaka Chandrika, I, 31. ' The Collector of Madura v, Muttu Ramalinga Satthupathy, 10 W.

Lecture IV. you will observe from this very text, that ancestor-worship

Source page 188

174 LEGAL CONSEQUENCES OF MARRIAGE. Lecture IV. you will observe from this very text, that ancestor-worship and the spiritual necessity of having a son, helped to raise the position of the son in the Hindu law. Other sages also have prohibited the sale or gift of a son.* A text of Manu* says that the son is one of the three persons declared by law to have in general no wealth exclu- sively their own. But the effect of this rule has been more than counteracted by a text of equal authority ,3 which declares the ownership of the father and the son to be equal in ancestral property. This text of Yajnavalkya, which has been elaborately developed in the Mitakshara,* has for a long time been the prevailing rule of Hindu law. This doctrine of equal ownership of the father and the son, which creates restraint on alienation, may not be a very con- venient one in advanced society ; but it has served to soften the rigor of paternal authority under the Hindu law, and it is owing to this perhaps as much as to the goodness of Hindu fathers, that paternal power under that law has not that stern character which it wears in other archaic systems.

in man-iage during minority.* He is also entitled to a Lecture IV.

Source page 189

175 in man-iage during minority.* He is also entitled to a Lecture IV. share in the son's acquisitions." But a great deal of the Hindu father's actual authority is based upon moral injunc- tions ;and nowhere has filial duty been more strictly enjoined Ihan in the Institutes of Manu." I need hardly add that the exercise of paternal authority is not merely allowable as a sort of compensation to the father for his trouble and anxiety in bringing up his children, but is absolutely necessary to protect the interests of these last, against the errors and indiscretion of infancy. Unlike other rights, these rights of the father inure not so much for the benefit of the person possessing them, as for the good of the person over whom they are exercised. In the Hindu law, the son is as much bound to maintain Maintenance of parents. his aged parents, as the father is, to support his infant children.* If the latter duty is necessary to be enforced for the preservation of our race, the former is equally necessary to be enforced for its happiness. The comprehensive character of the Hindu law of maintenance, which extends its pro- tection not merely to the wife, the children, and the parents, but also to a number of other relations, has been sometimes cried down as inevitably tending to foster habits of indo- lence and dependence. But competent judges have justly commended it ; and apart from sentimental considerations, it should be borne in mind that it is this law and the mora- lity bywhich it is supported, that have saved our Grovem- ment the trouble of enforcing that complicated system of poor laws, which is a social necessity in other countries. * Macnaghten's Precedents of Hindu Law, 204. * Dayabhaga. 3 II, 227—235. * Colebrooke's Digest, Bk.

Lecture IV. I pass over that chapter of our law which treats of the

Source page 190

176 LEGAL CONSEQUENCES OF MARRIAGE. I pass over that chapter of our law which treats of the Rules for rules relating to the conduct of women whose husbands are women whose husbands are away, as they are mostly in the nature of mere moral away. injunctions. It will be sufficient here to say that the husband is required to provide support for the wife,, and the wife is required to reside with his or her own relations.' Appointment Notwithstanding the strict rules about chastity and the of a wife, to raise up strong condemnation of unchastity even in thought, the offspring. spiritual necessity for a son has introduced into the Hindu law the anomalous provision of the appointment of a wife to raise up offspring in the event of the husband's incapa- city or death.^ This provision is not peculiar to the Hindu law, but is to be found in other ancient codes, such as the Jewish.3 The son thus produced is called the kshetraja son, or the son of the wife, and is one of the twelve kinds of sons enumerated by the sages ; and in ancient times he was entitled to a share of the heritage.* The practice was strictly guarded by rules, and was never allowed to be made a source of sensual gratification ; and in Manu's time, though permitted, it was greatly discountenanced.* In the present age it is altogether forbidden ;6 and it exists in certain places, such as Orissa, only as a local custom.' * Colebrooke's Digest, Bk. 3 Deuteronomy, XXV, 6—10. * Manu, IX, 168—160, 164, 165, 180. * Manu, IX, 58—68 ; V, 156—166. ^ General Note to Manu. ' Macnaghten's Principles of Hindu Law, p. 102 (3rd ed.) ; note to Mussummaut Sutputtee v.

LECTURE V.

Source page 191

DISSOLUTION OF MARRIAGE— WIDOWHOOD. Duration of the conjugal relation — Divorce — Its diflFcrent forms — Its effects — Divorce when allowable — Grounds of divorce in different systems of law — Divorce in the ordinary sense unknown to the Hindu law — Divorce allowed by custom in some cases — Grounds of such divorce — Distinction between divorce and dissolution of marriage in Hindu law — and between desertion and supersession — Judicial separation — Grounds which justify supersession — Grounds which justify desertion of a wife — Grounds which justify desertion of the husband — Change of religion a ground for desertion —Act XXI of 1866 — Position of the wife who'deserts, or is deserted by, her husband — Posi- tion of the woman whose marriage is void ab initio — Widowhood — Duties of the widow — Sati — Origin of the practice — Supposed Vaidik authority for it — Duties of a widow surviving her husband — Rights of the widow — Mainte^ nance— Amount of maintenance — Widow's maintenance how far a charge on her husband's estate — Heir not liable for widow's contracts for necessary supplies — Widow entitled to maintenance though not living in her husband's house — Widow how far entitled to maintenance from relations other than her husband's heirs — Right to maintenance not saleable — Maintenance forfeited for uncliastity — Suits for maintenance — Widow entitled to reside in the family dwelling-house — She is entitled to a share on partition — Widow entitled to inherit in certain cases — But she takes a qualified estate — Succession of several widows — Perpetual widowhood — Act XV of 1856. Having considered between what parties and in what modes marriage may be contracted, and what rights and duties arise out of it, I come now to consider how, if at all, the contract may be dissolved. I may here premise a few general observations before entering into the details of the Hindu law on the subject. the Mahomedan law, which sanctions tempo- Duration of Exceptinor r o ^ the conjugal no other polished system of law per- relation. rary marriages, mits parties to settle for themselves the duration of their conjugal relation. The duration is fixed for them by law, and is in most civilized countries the period of their joint lives. Our system goes further, and maintains that, as regards the woman, even the death of her husband does not dissolve the marriage-tie.

a contract between the parties to a marriage to the effect

Source page 192

178 DISSOLUTION OF MARRIAGE — WIDOWHOOD. a contract between the parties to a marriage to the effect Lecture V. that their marriage would become dissolved on the happen- ing of any specified contingency, has been declared to be void, as being opposed to the policy of that law.^ The reasons for making marriage a life-long union are obvious. Man may contract a temporary marriage for the gratification of a transient passion ; but to the woman the pleasures of matrimony are soon foUow^ed by the cares of maternity ; and if she is not able to reckon with certainty upon the help and co-operation of her husband, her con- dition, as well as that of her infant child, would be really miserable. Thus ordinary foresight would show that marriage for life is the best form of marriage. But as the best interests of society are here involved, lest that foresight be ever blinded by the impulse of passion, the law interposes in most countries, and declares marriage to be a union for life. Divorce— Its But though this may be a very wholesome rule in general, different forms. j«i •• i-iji ,• ^,i exceptional cases may arise in which the continuance oi the union would be a source of lasting misery to either or both of the parties. To meet these contingencies, divorce in some form or other is prescribed by most systems of law- The different forms of divorce may be classed under either of two heads, — first, dissolution of marriage; and second, separation of the husband and wife in bed and board, their marriage-tie still subsisting.

owing to some circumstance affecting the validity of the mar- Lecture V.

Source page 193

179 owing to some circumstance affecting the validity of the mar- Lecture V. riage, or owing to disagreement of a lasting nature between the parties, it is thought improper that they should continue as husband and wife ; while the latter is the remedy in cases in which, owing to some present cause of disagreement, such as ill-treatment or the like, it becomes necessaiy that the parties should live separate, though there may be hope of future reconciliation between them. The former mode has been called divorce d vinculo matrvmonii, or divorce simply, or dissolution of marriage; and the latter has been styled divorce d mensa et thoro, or judicial separation. In the former case, the effect of divorce is to dissolve the its effects, marriage-tie completely, and to leave the parties free to marry again ; and when the ground of the divorce is the invalidity of the marriage, its effect is to declare the mar- riage void ab initio, and, except for some purposes in certain cases, to bastardize the issue of such marriage. In the latter case, the effect is to permit the husband and the wife to live separately, and to prevent either party from enforc- ing restitution of conjugal rights against the other ; though, if they both agree, there would be no bar to their living tofjether a<xain as man and wife. The grounds upon which a marriage may be declared Divorce when .,7..., , , ,. ,. allowable. void ao tmtio, depend upon the rules relatmg to the quali- fications ofparties to marriage, and the formalities required for contracting it, in each particular system. If, on the one hand, to deny divorce universally would -involve a grievous wrong to individuals in some cases, on the other hand, to allow it freely would be equally grievous iu its consequences to society ;

Lecture V. for it needs hardly to be pointed out that it is upon the indis-

Source page 194

180 DISSOLUTION OF MARRIAGE — WIDOWHOOD. Lecture V. for it needs hardly to be pointed out that it is upon the indis- solubility ofmarriage that the integrity of the family, the proper rearing of the next generation, and the cultivation of domestic virtues depend. The grounds which are usually insisted upon as justifying divorce, may be classified under two heads, — namely, consent of both parties, and misconduct of either or of both. At first sight, the former ground seems to be so natural and so little open to objection, that one is apt to wonder why it has not been universally adopted, and why, on the contrary, collusion between the parties should form a ground for rejecting an application for divorce.* The pro- priety ofallowing divorce upon consent of both parties has been discussed at some length by Jeremy Bentham in his Principles of the Civil Code,^ and his opinion is decidedly in its favor. It would carry me much beyond the scope of the present lecture to examine the question in detail. The admissibility of the grounds of the latter class rests upon a very different con- sideration.

of the wronged party, and the mis- Lecture V.

Source page 195

GROUNDS OF DIVORCE IN DIFFERENT SYSTEMS OF LAW. 181 of the wronged party, and the mis- Lecture V. only at the instance conduct for which it should be granted, ought to be such that no one would be likely to permit it to be imputed to him merely for the purpose of obtaining divorce. It is upon grounds of the latter class, — that is, misconduct of the parties, — that divorce is allowed in most civilized countries. The Roman law allowed divorce by the mutual consent Grounds of divorce in of parties, or at the choice of either of them if the other different system of law. was guilty of conjugal infidelity. i The Mahomedan law goes further, and permits divorce, not only by the consent of both parties, but also at the mere will and pleasure of the husband." The Code Napoleon allows divorce by mutual consent in a certain limited class of cases under very stringent restrictions. It also authorizes divorce on the ground of adultery by the wife, or by the husband if he keeps his concubine in the common dwelling-house ; or of ill-treat- ment ;or of condemnation of either party to an infamous punishment.^ By the law of Scotland, either spouse can divorce the other on the ground of adulteiy or wilful deser- tion."* Bythe English law and the Indian Divorce Act (IV of 1869) for Christians, divorce can be obtained by the hus- band on the ground of adultery by the wife ; and by the wife on the ground of adultery by the husband, coupled with certain aggravating circumstances, such as incest, cruel- ty, or the like.^ The Indian Act also allows the wife to obtain a divorce on the ground of her husband's change of religion and subsequent marriage with another woman. * Sandars's Justinian, Lib. X, 12, note. ' Hedaya, Grady's edition, pp.

182 DISSOLUTION OF MARRIAGE — WIDOWHOOD.

Source page 196

182 DISSOLUTION OF MARRIAGE — WIDOWHOOD. You will observe that, while conjugal infidelity in the wife is always a ground of divorce in all these systems, the same offence in the husband would not, according to some of them, authorize divorce, unless it be coupled with some aggravating circumstance. Morally the offence is the same by whichever party it is committed ; but from a social point of view, the consequences of infidelity in the wife are far more seriously embarrassing to the matrimonial union than those of infidelity in the husband ; and this seems to be the only ground of justification for this unequal legislation. Divorce in the The provisions of the Hindu law on this important sub- ordinary sense . By that law, marriage tiie Hindu law. i • t i i i • IS regarded as a sacrament and an indissoluble union ; and accordingly Manu declares,^ — " Neither by sale nor desertion, can a wife be released from her husband ; " and in another place he says, — " * Let mutual fidelity continue till death ; ' this in few words may be considered as the supreme law between husband and wife." - So far our law deals equally with both parties. IV, quoted in Vidyasagara s Marriage of Hindu Widows, p.

like the practice of raising up issue by a kinsman on an Lecture V.

Source page 197

DIVORCE UNKNOWN IN HINDU LAW, 183 like the practice of raising up issue by a kinsman on an Lecture V. appointed wife, relate to a primitive stage of Hindu society in which rapid multiplication of the race was deemed an important object, or they merely show the existence of some difference of opinion among the Hindu sages on a point on which absolute luianimity of opinion can hardly be expected. The prevailing sentiment of Hindu society has for a long time been repugnant to the second marriage of a woman. Manu says, " The holy nuptial texts are applied solely to virgins,* and nowhere on earth to girls who have lost their virginity ; since those women are in general excluded from legal cere- monies." ^And in another place he declares, " Nor is a second husband allowed in any part of this code to a virtuous woman." ^ Indeed a twice-mamed woman (puTiarhhu) and a disloyal wife (swairini) are considered as belonging to classes not very far removed from one another. Thus Narada says :* " Others are women who had a different husband before (parajpui^d) ; they are declared to be of seven kinds, in order as enumerated : among these, the twice married woman is of three descriptions, and the disloyal wife of four sorts." Their husbands are, according to Manu, 'to be avoided with great care ;'* their children, says Harita, 'should not be admitted to social meetings ;'** neither they, nor their daugh- ters, are to be taken in marriage ;^ and their sons, called the paunarbhava, though formerly allowed to inherit in default of legitimate sons, as coming under one of the twelve * The word in the original is Kanya, which has been explained to mean ' a girl not deflowered, nor given in marriage.' See Colebrooke'a Digest, Bk. 3 V, 162. " XII, 46—54. » III, 166. « Colebrooke's Digest, Bk.

Lecture V. descriptions of sons/ are in the present age declared unlit

Source page 198

184 DISSOLUTION OF MARRIAGE — WIDOWHOOD. Lecture V. descriptions of sons/ are in the present age declared unlit to have any share of the heritage.^ Thus, while the practice of polygamy renders dissolution of marriage unnecessary for the husband, the prohibition of the second marriage of a woman renders divorce useless for the wife. Accordingly, as a rule, divorce in the ordi- nary sense of the word has been unknown in Hindu society. Strange says,^ that the right of divorce in the Hin- du law is marital only ; but this is not correct. If by divorce is meant dissolution of marriage, it is not obtainable even by the husband, for, according to Manu (IX, 46), a wife can never be released from her husband ; and if by the right of divorce is meant the right of either spouse to desert or to live separate from the other, such right, as you wiU presently see, belongs, under certain circumstances, to the wife as well as to the husband. Divorce allow- But though not allowed by the general Hindu law, ed by custom in some cases, divorcc and remarriage of a divorced wife are in some cases permitted by custom.''' Such custom, however, prevails only among the inferior classes, especially in the Bombay Presi- dency ;*and disputes concerning this subject are generally settled by punchayets or caste assemblies.

the former granting the latter a char chitti, or letter of re- such divorce,

Source page 199

GROUNDS OF DIVORCE, 185 The ground upon which such divorce is most commonly Lecture V. granted, is the mutual consent of the husband and the wife, ^ ^ ^ Grounds of the former granting the latter a char chitti, or letter of re- such divorce, lease.i Other grounds are mentioned by Steele" as justifying divorce among the inferior castes in Bombay, and these grounds are, impotence of the husband, continual quarrel, habitual ill-treatment, and any irregularity rendering the marriage ah initio null and void. Our Courts have accord- ingly held that with some castes divorce i& allowable in case- of ill-treatment.^ But the prevailing practice has been not to recognize the^ validity of any divorce obtained without the consent of the- husband.* In Reg. v. Karsan Goja,^' which is the leading- ease on the point, the prisoner Karsan Goja had married: and cohabited with one Rupa, a married woman, who* had repudiated her former husband without his consent.. Thereupon Karsan was tried for adulter}^, and Rupa for mar- rying again in her husband's lifetime, and their defence was^, that by the custom of their caste, a woman might, without the consent of her husband, leave him and contract a validv marriage, called natra, with another man. They were botK convicted, and the High Court of Bombay, in upholding the- convictions, observed : " We are of opinion that such a caste- custom as that set up, even if it be proved to exist, is invalid, as being entirely opposed to the spirit of the Hindu law ; and we hold that a marriage entered into in accord- • Steele, p. 16&, 169, ' See Kaseeram Kriparam v.

ance with such a custom is void." The same principle has

Source page 200

186 DISSOLUTION OF MAERIAGE — WIDOWHOOD. Lectdee V, ance with such a custom is void." The same principle has been followed in several subsequent cases.^ Distinction be- Though the Hindu law does not allow divorce, it is not tween divorce and dissolution so unreasonable as to compel married parties to live to- of marriage in Hindu law, gether as man and wife under all possible circumstances. In certain cases, as you have seen already, either spouse is permitted to resist the claim of the other for restitution of conjugal rights. This separation, called in Hindu law deser- tion (tyag), differs from divorce as ordinarily understood, in this, — that however grave or permanent the cause of the desertion, and however solemnly and irrevocably it may take place, it can never have the effect of dissolving the marriage tie completely, so long as both parties remain Hindus.* and between Supersession of one wife by another, which is not un- desertion and gupersessiou. frequently a motive for divorce in monogamic societies, differa from desertion under the Hindu law in this, — that the superseded wife does not lose her claim for restitu- tion of conjugal rights, nor indeed any of her rights as wife. Yajnavalkya declares : " But a superseded wife must be maintained, else a great offence is committed."^ And Vij- naneswar commenting on this text observes: " Though super- seded by another wife, she must be treated with courtesy, and receive gifts and respect as before, &c."* Where a wife is deserted for any cause not affecting Judicial sepa- ration. her caste, or the validity of her marriage, and the deser- tion is in consequence not irrevocable in its nature, such * Kbemkor v. Umia Sbankar, 10 Bom., 381 ; RaM v.

what is called judicial separation in Lecture V.

Source page 201

GROUNDS JUSTIFYING DESERTION OF A WIFE. 187 what is called judicial separation in Lecture V. desertion resembles other systems. Polygamy being generally permitted, any enquiry into ^[""""^.'^ ^jj justify supersession, would be mere supersession. the grounds which matter of curiosity. Manu has the following rules on the subject : "A wife who drinks any spirituous liquors, who acta immorally, who shows hatred to her lord, who is incurably diseased, who is mischievous, who wastes his property, may at all times be superseded by another wife. " A barren wife may be superseded by another in the eighth year ; she whose children are all dead, in the tenth ; she who brings forth only daughters, in the eleventh ; she, who speaks unkindly, without delay. " But she who, though afflicted with illness, is beloved and virtuous, must never be disgraced, though she may be superseded by another wife with her own consent." ' You will here observe that by permitting the immedi- ate supersession of a wife who speaks unkindly, Manu has practically permitted supersession in all cases. The consideration of the grounds which justify desertion is of much greater importance in practice. I have to some extent already touched upon them when considering the subject of restitution of conjugal rights.

Lecture V. A man may also forsake a wife who treats him with

Source page 202

188 DISSOLUTION OF MARRIAGE — WIDOWHOOD. A man may also forsake a wife who treats him with aversion/ or who is disobedient and self-willed,^ or who commits any sin in the first degree ^ (such as killing a Brahman, drinking forbidden liquor, stealing gold, &;c.'*) In this last case, under the old Hindu law, the delinquent used to be formally degraded and excommunicated, and thence- forth, till expiation, to be regarded as civilly dead.* Hindu society is become more tolerant now, and this practice of formal excommunication is falling into disuse ; and indeed, upon a literal construction of Act XXI of 1850, section 1, which provides that loss of caste or excommunication shall no longer occasion any forfeiture of rights, it might seem as if a degraded or excommunicated wife was not any longer liable to be deprived of her conjugal rights. But this Act must receive a more limited construction in order to be reconciled with reason and justice. Arzoon Sahoo,^ though a person who is excommunicated is not on that account to be deprived of his or her rights, yet such person must not be empowered to deprive others of their right to the freedom of conscience, . and the liberty of withholding communion with interdicted persons. There is one other class of grounds which ought to be noticed, and which not only justify but necessitate deser- tion of the wife. If the wife is related within the pro- hibited degrees, or if she belongs to the same gotra, she is required to be forsaken as soon as the fact is discovered, and the husband is required to perform penance.'^ * Manu, IX, 77. * Yajnavalkya, III, 227 ; Manu, XI, 55. ' Colebrooke's Digest.

It remains now to see on what grounds a husband may Lectubb V.

Source page 203

GROUNDS JUSTIFYING DESERTION OF HUSBAND. 189 It remains now to see on what grounds a husband may Lectubb V. be deseiiied. As a rule, " though unobservant of approved usages, or enamoured of another woman, or devoid of good which justify qualities, yet a husband must be constantly revered as a iiudbaud. god by a virtuous wife." Such is the law laid down by the highest authority.^ But the same authority has also said : " But she who is averse from a mad husband, or a deadly sinner, or an eunuch, or one without manly strength, or one afflicted with such maladies as punish crimes, must neither be deserted nor stripped of her property."^ This text, however, does not, as Macnaghten' thinks, autho- rize desertion of the husband under the circumstances mentioned. For what Manu excuses here is aversion, which according to Kalluka and Jagannath* means want of dili- gent attention, not absolute desertion. There are passages in the writings of the sages which are more directly in point. Thus Devala says : "A husband may be forsaken by his wife, if he be an abandoned sinner, or an heretical mendicant, or impotent, or degraded, or afflicted with phthisis, or if he have been long absent in a foreign country ; " and he goes even further and ordains, that in these cases the wife may take another husband for the sake of obtaining progeny, not through female independence.^ And Parasara and Narada (in the texts referred to above") by allowing a woman to take a second husband if the first be impotent, or degraded, or retired from the world, or long absent, d fortiori, permit desertion of the husband in such cases. » Manu, V, 154. ' Manu, IX, 79. ■ Principles of Hindu Law, p, 62. * Colebrooke's Digest, Bk, IV, 57, commentary. * Ibid, Bk.

Lecture V. The periods of absence which would justify desertion in

Source page 204

190 DISSOLUTION OF MARRIAGE— WIDOWHOOD. The periods of absence which would justify desertion in different cases are also laid down by Devala/ being eight, six, four, and (presumably) two years, for the sacerdotal, mili- tary, commercial, and servile classes respectively, or half the period in each case where the wife has borne no child. I may here observe that, by the English law^ and by Act IV of 1869 (section 22), desertion for two years is made a ground for judicial separation. According to Manu and Vasistha, however, an absent husband is not to be deserted by the wife ; but she is to follow after she has waited for some time.^ The remarriage of the wife, which is allowed by Devala, Parasara, and Narada, being generally held to be prohibited in the present age, the rules authorizing the desertion of her husband have become obsolete for want of sufficient lawful inducement for such desertion ; and the only grounds which, according to the opinion of modem writers,* and the pre- vailing sentiments and practice of Hindu society, justify desertion of the husband, are his degradation and loss of caste.*The above rule calls for some explanation. You may ask, what offences lead to degradation or loss of caste. It is true that these offences are enumerated by Manu^ and Yajnavalkya'^ with sufficient minuteness ; but many of them would hardly be considered as offences in the present altered state of Hindu society.

quote the following texts of Manu, which enumerate some Lecture V,

Source page 205

GROUNDS JUSTIFYING DESERTION OF HUSBAND. 191 quote the following texts of Manu, which enumerate some Lecture V, of the graver offences :— " Killing a Brahman, drinking forbidden liquor, stealing gold from a priest, adultery with the wife of a father, natural or spiritual, and associating with such as commit those offences, wise legislators must declare to be crimes in the highest degree." (XI, 55.) " False boasting of high tribe, malignant information before the king, of a criminal who must suffer death, or falsely accusing a spiritual preceptor, are crimes in the second degi'ee, and nearly equal to killing a Brahman." (XI, 56.) " Carnal commerce with sisters by the same mother, with little girls, with women of the lowest mixed class, or with the wives of a friend, or of a son, the wise must consider as nearly equal to a violation of the paternal bed." (XI, 59.) Most of these offences are expiable by penance, and after expiation, a sinner is allowed to mix in society, and he would therefore, it seems, be entitled to claim restitution of conjugal rights.^ But the gravest offences, such as violation of the paternal bed, and the like, can be expiated only by death.* It is difficult to say, however, which of these offences require expiation at the present day to prevent degradation or loss of caste. So long as a man, however vicious or abandoned he may be, is not formally excommunicated, he would, it seems, be entitled to claim the conjugal society of his wife. And even after formal excommunication, he would not necessarily forfeit his marital rights. For, as the propriety of every excommuni- cation isopen to be questioned before a Court of Justice, > Manu, XI, 190. « Manu, XI, 100-104. ■ Gopal Gurain v. B., 299 ; see also Sudaram Patro v.

Qiange of reii- Change of reliffion in either spouse would

Source page 206

192 DISSOLUTION OF MARRIAGE — WIDOWHOOD. Lecture V. the mere fact of degradation from caste would not disen- title a man to claim restitution of conjugal rights, unless such degradation be for a cause which the Courts would as legitimate. ' accept Among other causes which justify desertion of the hus- band bythe wife, may be mentioned cruelty of the husband, and his laboring under loathsome and contagious disease.^ These have already been considered in the preceding lecture. Qiange of reii- Change of reliffion in either spouse would gion a ground o o r jiustify j deser- for desertion, ^ion by other, and Act XXI of 1850, as I have already ex- plained, would not interfere with such desertion.^ In such cases, the convert partner is regarded in Hindu law as civilly dead.* In the converse case, which is extremely rare, of a Hindu convert to Christianity or other faith, re- turning back to Hinduism on performance of the necessary expiation, it has been held that the Hindu law would alto- gether ignore the marriage of the party, contracted while a convert, and would authorize his marriage with a Hindu wife.* This decision, we are told by Sir Henry Maine^ in his speech on the Indian Divorce Bill, has been the cause of the insertion of the provision in Act IV of 1869 (sec- tion 10) to the effect that a Christian wife may obtain divorce from her husband by reason of his change of religion and subsequent marriage with another woman. Act Xxr oi Act XXI of 1866 has made some important provisions for 18G6. . . dissolution of marriage when either spouse becomes a * See Yamuna Bai v. R., 1 Bom., 164 } Bai Prem Kuvar v. Rokeya Beebee, 1 Norton's Leading Cases on Hindu Law, 12. * 3 Mad. (Criminal Cases), App., vii. * See Supplement to the Gazette of India for March 6, 1869, p.

convert to Christianity. It authorizes the convert to sue his Lecture V.

Source page 207

It authorizes the convert to sue his Lecture V. or her non-converted partner for conjugal society, and it gives the latter the option of agreeing or refusing to cohabit with the former ; and in case of his or her refusal on the ground of change of religion, it directs the Court to declare the mari'iage dissolved. The position of the wife who lawfully deserts her husband. Position c.f the wife who de- or is lawfully deserted by him, is in some respects rather sens or is de-serted byher anomalous. So long a^ both parties remain Hindus, deser- husband. tion does not dissolve their marriage.^ In the case of desertion of the husband by the wife, she must remain under the care of her grown-up sons, if any, or under the care of other kinsmen ; for her state is one of perpetual tutelage.^ As a rule, she is entitled to mainte- nance from her husband. Where degradation of the hus- band isthe cause of desertion, the Hindu law, which ex- cludes the degraded husband from inheritance, imposes upon the person taking his share of the patrimony the obKgation of maintaining his wdfe if chaste f and now as by Act XXI of 1850 degradation or loss of caste no longer occasions any forfeiture of rights or property, it would follow that the wife is entitled to maintenance from her degraded husband, though she may not live with him. Ahraham* would release the convert from the trammels of the Hindu law; and his rights and duties would have mainly to be determined by * Manu, IX, 46. « Manu, IX, 3. ' Mitakshara, Ch.

Lectube V. the law of the sect to which he becomes a convert ; and

Source page 208

194 DISSOLUTION OF MARRIAGE — WIDOWHOOD. Lectube V. the law of the sect to which he becomes a convert ; and such law in some cases, as where the conversion is to Maho- medanism, would declare the former marriage dissolved.^ Nevertheless, the adoption of a new religion ought not to have the effect of sweeping away all existing obligations. Considering that, by Act XXI of 1850, the Hindu convert is no longer to be deprived of his rights or property by reason of change of faith, and considering the feelings and the helpless condition of the Hindu wife, and the prohibition against her remarriage, it would be a matter of extreme hardship if she is to be deprived of her right to claim maintenance from her husband, whom, owing to her religious feelings, she may be obliged to forsake. The question is not one of Hindu law, but involves important general principles. The decision of the Madras High Court reported in 4 Mad. You have seen that the convert husband may, under Act XXI of 1866, sue the Hindu wife for conjugal society, and in the event of her persistent and voluntary refusal to cohabit with him on the ground of his change of faith, a decree may be passed declaring their marriage dissolved.

prior mairiage had been dissolved by death, and the issue Lecture V.

Source page 209

195 prior mairiage had been dissolved by death, and the issue Lecture V. of any such remarriage shall be legitimate, any Native law to the contrary notwithstanding. Provided always that no minister of religion shall be compelled to solemnize the marriage of any person whose former marriage may have been dissolved under this Act, or shall be liable to any suit or penalty for refusing to solemnize the marriage of any such person." (Section 19.) This, you will observe, is the only case in which a Hindu wife can obtain a complete divorce, being permitted not only to forsake her husband, but also to contract a valid and legal remarriage. But as such marriage cannot possess the sacramental character of the nuptial rite in the eye of the Hindu, and as the reproach of being a twice-married woman would still attach to the wife, this permission of re- marriage isseldom if ever availed of. A wife deserted by her husband is still entitled to some maintenance, even when the cause of desertion is her infidelity to the marriage-bed. But in this last-mentioned case, her maintenance is limited to what has been called a starving Tnaintenance, being mere food and raiment,^ and is allowed only when she ceases to live in adultery. If she is deserted by reason of her degradation, she is directed to dwell in a hut near the family house.^ W^en her change of religion is the cause of desertion, she would no longer be bound by the rules of the Hindu law, and her legal position is to be determined by the law of the sect to which she becomes a convert.' If she * See Colebrooke's Digest, Bk.

Lecture V. embraces Christianity, the provisions of Act XXI of 1866

Source page 210

196 DISSOLUTION OF MARRIAGE — WIDOWHOOD. Lecture V. embraces Christianity, the provisions of Act XXI of 1866 would enable her to marry again, after obtaining a decree for dissolution of her former marriage. Position of the The position of the woman whose marriage is void ah woman whose ^ void ab initio.marriage is initio, sccms to be siugularly unfortunate under the Hindu law. The causes which render a marriage void ab initio are, first, difierence of caste in the contracting parties ; and second, identity of gotva, or relationship within the prohi- bited degrees. In the former case, according to some authorities, if the error is discovered before garhhadhan, the girl is to perform expiation, and may be married again ; but after garhhadhan, she is no longer eligible for remar- riage, and if of a lower caste, she is liable to be repudiated by her husband, though she is entitled to be maintained, and her issue would be considered illegitimate.^ In the latter case, on the error being discovered, the husband is directed to perform penance and repudiate the wife ; but he is required to support her.^ Her remarriage, however, is nowhere allowed, even though the repudiation take place before consummation. The doctrine of the Hindu law is, that a girl is blemished by the mere ceremony of marriage, and if married again, the reproach of being a twice-married woman (punarhhii) would attach to her, even if she be a vwgo intacta.^ This is hardly just.

against the spirit of our law, would be to allow remarriage Lecturk Y.

Source page 211

POSITION OF THE WOMAN WHOSE MARRIAGE IS VOID. 197 against the spirit of our law, would be to allow remarriage Lecturk Y. in such cases, where the wife is repudiated before consumma- tion. For here the girl is free from blemish by intercourse ; and as for the blemish by reason of the nuptial ceremony, such ceremony being performed under a mistake of fact, may, by a principle not altogether unknown to the Hindu law,^ be regarded in law as not performed at all. Such a rule seems also to receive some support from the decision of the High Court of Bengal in Anjona Bossee v. Proladh Chunder Ghose,' in which the Officiating Chief Justice Norman, in delivering the judgment of the Court upon the question, whether a suit for declaration of the nullity of a Hindu marriage would lie, observed :— " If the marriage is in fact no marriage, unless she can * obtain a declaration from a Court of Justice that the mar- riage isnull and void, unless she can obtain the protection which such Court can give her, she may be obliged to live with the defendant in a state of concubinage, or at least she will be prevented from marrying any one else. The rights which a decree in this suit may protect — with which the defendant may be restrained from interfering — the preservation of the personal purity of the infant plain- tiff and her right and power to contract a valid marriage — are amongst the highest rights which a human being can possess ; and it would be a matter deeply to be lamented if the Court had no power to protect and defend them. " Happily, however, in practice the strictness with which relationship and other particulars are enquired into before * In the somewhat analogous case of a thing given by mistake, Narada declares that it must be considered as not given.

Lecture V. making the nuptial contract, reduces the evil here com-

Source page 212

198 DISSOLUTION OF MARRIAGE — WIDOWHOOD. Lecture V. making the nuptial contract, reduces the evil here com- plained ofwithin the narrowest possible limits. Connected with divorce or desertion, which is separation of the married pair by voluntary act, is widowhood or the state of separation by death ; and it therefore deserves in this place a passing notice. The position of the Hindu widow is in many respects so unique in jurisprudence, and the law relating to her rights and status is of such wide extent and vast practical importance, that you can hardly expect anything like an adequate treatment of the subject in a single lecture. All I can do here will only be to give you a rough outline of that law. The institution of widowhood with all its hardships and disadvantages, is a result of that unequal legislation for the two sexes, which characterizes all archaic systems.

consummation, his brother shall take in marriage according Lecture V.

Source page 213

199 consummation, his brother shall take in marriage according Lecture V. to this rule, &c. " ^ But the practice had already become repugnant to the prevailing moral sentiments of the people in Manu's time, and accordingly it is very much discoun- tenanced inhis code." With the moral progress of society, it was felt to be unjust to compel a woman to accept a second husband appointed by law ; and perpetual widowhood under proper guardianship became the normal condition of the Hindu wife after her husband's death. Under the Hindu law as it stood before the year 1829, Duties of the a woman, on the death of her husband, might either immolate herself on his funeral pile, or lead a Kfe of perpetual widow- hood. Thanks to the British rule, this inhuman practice of self-immolation of the widow, commonly called the practice of Sati, was abolished by Bengal Regulation XYII of that year, which declares the practice to be illegal and punish- able bythe Criminal Courts. The rite was called sahaniarana or anumarana accord- ing as the wife died on the same funeral pile with her husband, or on a different pile, as in the event of her hus- band dying abroad. It is extolled by some of the sages as the highest virtuous act for a woman, and minute rules are laid down for regulating the practice ia different cases.' But as the interest attaching to the subject is purely his- torical now, I spare myself the not very grateful task of dwelling at length upon these rules. It is some relief to notice that mothers of infant children and pregnant women were prohibited to observe this rite. » IX, 69. • IX, 65—68. ' See Raghunandana's Suddhitattwa, and Colebrooke's Digest, Bk.

Lectube V. Regarding the origin of this practice, strange views have

Source page 214

200 DISSOLUTION OF MARRIAGE — WIDOWHOOD. Regarding the origin of this practice, strange views have been sometimes entertained. Thus Diodorus Siculus^ sup- Origin of the •ill ••,T-i • , in-i practice. poses it to have originated with a view to check the wicked practice of poisoning husbands. This, however, is a most unfounded conjecture. The truth is, that this practice was not peculiar to India,^ though India is perhaps the only country in which it co-existed with a high degree of na- tional progress. And it seems to have originated in those vague notions of a future state which are cut rent among pri- mitive races, and which perhaps led them to imagine that the dead ought to carry with them to the next world not only their goods and chattels (which are often buried with them), but also their wives and slaves.^ Supposed The Aryan Hindus are supposed to have borrowed the Vaidik autho- rity for it. sati rite from the aboriginal Tamulians.

portant of these was to raise up issue for her deceased Lkoturb V.

Source page 215

DUTIES OP A WIDOW SURVIVING HER HUSBAND. 201 portant of these was to raise up issue for her deceased Lkoturb V. husband. But in Manu's time the practice was becoming obsolete, and it is condemned in the institutes of that sage as *fit only for cattle.'^ And in the present age it is absolutely prohibited.* The duties of a faithful widow have been thus described by Manu :— "A faithful wife who wishes to attain in heaven the mansion of her husband, must do nothing unkind to him, be he living or dead. "Let her emaciate her body, by living voluntarily on pure flowers, roots, and fruit; but let her not, when her lord is deceased, even pronounce the name of another man. "Let her continue till death forgiving all injuries, per- forming harsh duties, avoiding every sensual pleasure, and cheerfully practising the incomparable rules of virtue, which have been followed by such women as were devoted to one only husband." (w. 156 — 158.) So Vishnu: "After the death of her husband a wife must practise austerities or ascend the pile after him."* There are numerous texts prescribing the number of meals a day that the widow may take, the nature of the bed she is to sleep upon, and other particulars relating to her conduct.* In short, she is to lead a life of pious austerity for the spii*it- ual welfare, not of herself alone, but also of her husband ; for, says Brihaspati, " A wife is considered as half the body of her husband, equally sharing the fruit of pure and impure acts." * Strict as the rules regulating her conduct are, and severe as is the self-denial they impose upon her, they are still * IX, 66. • Colebrooke's Digest, IV, 133. > General Note to Manu. * Ibid, 134—145. » Colebrooke's Digest, IV, 132.

Lecture V. observed in the main, notwithstanding the sweeping changes

Source page 216

202 DISSOLUTION OF MARRIAGE — WIDOWHOOD. Lecture V. observed in the main, notwithstanding the sweeping changes that have revolutionized Hindu society, and notwithstand- ing the fact that remarriage is now declared legal for her. But if the Hindu law imposes such austere duties upon the widow, it also allows her important rights. widow,Rights of the In the first place she is always entitled to maintenance Maintenance. from the person who inherits her husband's estate.^ This is an important right of the widow, and our Courts have always been anxious to secure it to her in the best possible manner. The ordinary mode of enforcing it is to bring a suit for establishing the right to maintenance and for obtain- ing arrears of maintenance such as may be due; and then to recover all future arrears by a suit each time that an arrear falls due. But she has not been always left to this trouble- some and circuitous mode of enforcing her right. In the case of Sree Mootee Mundoodaree Dahee v.

(a childless widow) a suitable maintenance, and it wavS LbctubkV,

Source page 217

203 (a childless widow) a suitable maintenance, and it wavS LbctubkV, ordered that in tfie first hintaiice such sum be set apart for the purpose.* " From these decisions," says Sir Francis Macnaghten, " it clearly appears that the widow entitled to maintenance is not to be left at the mercy of him whose duty it is to maintain her, but that she may compel him to do her justice, — and although the obligation imposed upon him be indefinite, that a Court of Equity will define it, by adverting to circumstances, and aid her in the enforcement of such advantages as the possessor of her husband's wealth is boimd in conscience to confer." And he further observes, that a widow entitled to maintenance may restrain the representatives of her husband from wasting or making away with his estate, or at least compel them under such circumstances to give security for due payment of a suitable maintenance.^ ^ maintenaace. The minimum rate of maintenance for the widow is speci- Amount of fied in the Hindu law with sufficient precision.* But as the rules on the subject refer to a state of society very different from the present, they are not now followed, and the Courts have always exercised their discretion in determining the amount of maintenance in each case.* The amount is not merely to be so much as is just sufficient for the widow's support, but is to include some allowance for. the performance of charities and the discharge of religious obligations, and is to be assessed with reference to the value of her husband's estate ; and in fixing the amount, the value of her stridhan * Macnaghten's Considerations on Hindu Law, p. 62, 63. « See Smriti Chandrika, Ch. 89 ; Macnaghten's Precedents of Hindu Law, pp. Ill and 112 note. ♦ See Mussummaut Bheeloo v. Phool Chund, 3 Sel Rep. (new ed.), 298 ; Rajiee Parvata Vardani Nachear v.

Lecture V. is, according to some authorities, to be taken into account.^

Source page 218

204 DISSOLUTION OF MARRIAGE — WIDOWHOOD. Lecture V. is, according to some authorities, to be taken into account.^ But it has been held that it is not necessary that she " should be maintained in the same state as her husband would maintain her." ^ teiianceWidow's howmain- As a rule, the widow's maintenance is a charge on her ■, -, -i, tit far a charge on husband s estate. It has been held that her claim cannot lier husband's -, t n t ^ -i i i tj 'm estate. be defeated by her husband s will, merely by implication.' Where the estate, which is chargeable with the maintenance of a widow, comes into the hands of several heirs, the widow has been held entitled to sue any one of them for her mainte- nance, on the ground that it is a charge upon the whole estate and therefore upon every part thereof * In such cases, if any one of the heirs is made to pay the whole amount of maintenance, his remedy would be to sue the other heirs for contribution. So long as the estate which is chargeable, remains in the hands of successive heirs, the ■ widow's claim continues to be a charge on it. Where, how- ever, itpasses into the hands of persons by some title other than inheritance, it has been a matter of some contention as to whether the charge still subsists. If the purchaser of an estate take it with notice of a widow's claim for mainte- nance, itis a settled rule that it continues liable for such claim.^ The question how far it would be necessary for the widow in such cases to try -in the first place to recover her maintenance from the heir-at-law before she would be enti- tled tofollow the estate in the hands of the purchaser, has * 1 strange, 171 ; 2 Strange, 305. ^ Kalee Persaud Sing v, Kupoor Koowaree, 4 W.

been answered by Mr. Justice Romesh Chunder Mitter in Lecture V.

Source page 219

MAINTENANCE OF WIDOW, 205 been answered by Mr. Justice Romesh Chunder Mitter in Lecture V. the case of Baboo Goluck Chunder Bose v. Ranee Ohilla Dayee^ thus: — " As regards the second question that has been argued before us, it seems to me that it is not a correct proposition of Hindoo law to say, that, in all cases, a Hindoo widow is not entitled to follow properties from which she is entitled to obtain her maintenance in the hands of the purchaser, un- less she at first attempts to recover her maintenance from the heir-at-law. It may be that, in certain cases, where the defence is that sufficient property is still in the hands of the heir-at-law from which the maintenance can be recovered the person entitled to maintenance might not be allowed to recover it from the purchaser of a small portion of the family property without first attempting to recover it from the properties in the possession of the heir-at-law. But in this case there was no such defence, and, in either of the Courts below, the objection in this form was not raised. And we do not think that we ought to allow it to be raised here for the first time in special appeal." Where the estate is acquired by a bond fide purchaser for value without notice, the case rests upon different grounds.

Lecture V. others, imposes a restriction upon the heir's power of aliena-

Source page 220

206 DISSOLUTION OF MARRIAGE — WIDOWHOOD. Lecture V. others, imposes a restriction upon the heir's power of aliena- tion. Moreover, there is the decision of the Privy Council in the case of Mussumat Golab Koonwar v. The Collector of Benares,^ in which the widow was held entitled to mainte- nance out of her husband's estate, after it had been forfeited to Government by reason of her sons being implicated in an insurrection. Shona Malee Fat Mahadai,'^ in which, upon a review of the authorities on both sides, the conclusion has been arrived at, that the widow's lien for maintenance does not follow her husband's estate in the hands of a bond fide purchaser with- out notice. As observed in that case, the text of Katyayana quoted above is far too vague to support the widow's con- tention ;and, indeed, it may well be doubted whether the text applies to any case other than that of a gift of the whole of a man's estate ; for in the case of sale it might be said that the consideration received by the heir would take the place of the property sold, and might be held answerable for the widow's maintenance.

the Government, as might be expected, did not think it fit to Lecture V.

Source page 221

207 the Government, as might be expected, did not think it fit to Lecture V. raise any objection to the widow's claim for maintenance, and the decision of the Privy Council was, it would seem, based in a great measure upon the absence of such objection. The strongest argument in favor of the widow's claim is this, that as her maintenance is a charge on the estate, and as upon the well-known principle recognized by the Privy Council in the case of Varden Seth Sam v. Luckpathy Royjee Lallah,^ one who owns property subject to a charge can, in general, convey no title higher or more free than his own, it lies always on the purchaser to make out a case to defeat the widow's claim. Justice Jackson, the holder of a lien on specific property is in a difierent position from a person possessed of a right which constitutes a charge upon the general estate of a deceased person. The inconvenience, moreover, of allowing the widow's claim in such cases would be considerable. For the estate might vest in a number of co-heirs, and different portions of the estate might be purchased from them by different parties, some buying with, and * 9 Moore's I.

Lecture V. some without, notice of the widow's claim ; and in the event

Source page 222

Lecture V. some without, notice of the widow's claim ; and in the event of the widow choosing to make one of the purchasers without notice liable for her claim, against whom is such pur- chaser toproceed for contribution, and how is the Court to apportion the liability for the same ? To allow the widow to enforce her claim against a purchaser in such cases would thus lead to evident inconvenience. Savitribai,^ that the widow's main- tenance "is a charge upon the whole estate and therefore upon every part thereof," has been qualified and explained by him in the case of Nistarini Dasi v. Makhunlall Butt,' where, speaking of the Bombay case, he says; "The question there was as to whether one brother could be sued alone, and it was held that he could.'* Nor will the adverse rule seriously aifect the interests of the widow ; for, in addition to other remedies, such as taking security from the heir, to which, according to Sir Francis Macnaghten, she is entitled, she can always protect her- self by giving due notice of her claim. Upon reason and authority, therefore, the rule laid down in Adhiranee Narain Coomary's case appears to be unexceptionable. the widow is entitled to maintenance from the Heir not liable Though her husband's estate, her contracts for contTactTfor person inheriting nec^e^ssary sup- j^gggggg^j-y supplies would not be binding on such person. Minakshi AnfiTYial,^ which was a suit for money advanced to the first defendant, a widow, for her necessary maintenance, and in which the second defendant, the heir in possession of the first defend- » 4 Bom., A.

ant's husband s estate, was sought to be made liable, the Lecture V.

Source page 223

209 ant's husband s estate, was sought to be made liable, the Lecture V. Court observed — " Now, clearly as a matter of contract, there is no liability on the part of the second defendant, nor was there on the part of her husband. The first defendant had full capacity to contract, and she alone executed the bond ; and granting that the plaintiff made the advances under the bond fide belief that, as widow, the first defendant had a continuing right to maintenance out of the estate in the hands of her adopted son and his widow, the second defendant, we think there is no principle or rule of Hindu law which recognizes any authority in a widow, entitled only to maintenance, to make contracts for necessary supplies binding upon the heir in possession of the family property and liable to main- tain her." The question whether a wddow in order to be entitled Widow entitled to maintenance is bound to reside with her husband s though not .-,,,.,, living in her house. relatives, has been sometimes raised ; but the point has been husband's settled by decisions of the Privy Council, and the rule now is, that should a widow without unchaste purposes quit her husband's family house, and live with her parents or other relatives, she would still be entitled to maintenance. Ranee Raj Kower^ is the latest important case on the point. In that case the earlier decisions have been examined, and the Privy Council in their judgment observe : " It therefore appears that a Hindu widow is not bound to reside with the relatives of her hus- band ;that the relatives of her husband have no right to compel her to live with them ; and that she does not forfeit her right to property or maintenance merely on account of * 20 \V.

210 DISSOLUTION OF MARRIAGE — WIDOWHOOD.

Source page 224

210 DISSOLUTION OF MARRIAGE — WIDOWHOOD. Lecture V. her going and residing with her family, or leaving her hus- band's residence from any other cause than unchaste or improper purposes." Widow how far We have hitherto been considerino: the claim of a widow entitled to ^ ^ ° maintenance for maintenance againsto the personj. inheritingo her husband's from relations other than her estate. The Question next arises how far she is entitled to husband's heirs. be maintained by the heir when her husband leaves no property, and how far she can claim maintenance from other relatives. The Hindu sages emphatically enjoin upon every person the duty of maintaining the dependent members of his family. The following are a few of the many texts on the subject :^— Manu :— " The ample support of those who are entitled to maintenance is rewarded with bliss in heaven ; but hell is the portion of that man whose family is afflicted with pain by his neglect : therefore let him maintain his family with the utmost care. " Narada :— " Even they who are bom, or yet unborn, and they who exist in the womb, require funds for subsistence ; the deprivation of the means of subsistence is reprehended." Brihaspati :— " A man may give what remains after the food and clothing of his family : the giver of more luho leaves his family naked and unfed, may taste honey at first, but shall afterwards find it poison." Following the spirit of the Hindu law, the High Court of Bombay has held that a Hindu widow, if destitute of means, is entitled to maintenance from her husband's relatives, although she may have shared her husband's estate, and may have supported herself for a long period by trading f that the fact of her husband having been divided from the ^ Colebrooke's Digest, Bk. IV, 11, 12, and 18. • Bai Lakshmi v.

family would not affect her right to maintenance ;' and Lecture V.

Source page 225

211 family would not affect her right to maintenance ;' and Lecture V. that such right is not limited to obtaining food and clothing by living in the family house, but that the Court may at its discretion award her a separate maintenance.' But the High Court of Bengal has laid down a different rule. Khettur Monee Dossee* the following question was referred for the decision of a Full Bench, — namely, whether a Hindu widow refusing to live in the house of her father-in-law, can maintain a suit against him for a pecuniary allowance by way of mainte- nance. Sir Barnes Peacock, whose decision was affirmed on appeal, in delivering judgment, observed : " Two questions seem to arise out of the point submitted for the opinion of the Full Bench, viz., — -first, whether the widow of a Hindoo refusing to live in the house of her father-in-law can sue him for a pecuniary allowance by way of maintenance, if she leave his house without reason- able cause ; and secondly, is she entitled to maintenance if she leave on account of ill-usage or other reasonable cause ? " In the case cited from the 2nd volume of the Weekly Reporter, page 134, it was held that a daughter-in-law has a right to maintenance from her father-in-law, so long as she is chaste, whether she continues to live with him or not, and Mr. Justice Kemp is still of that opinion. " It appears to me, however, that, according to the law as administered in Lower Bengal, a daughter-in-law has not in either case a legal ground of action to recover maintenance against her father-in-law. * Chandrabhagabai v. Kashinath Vithal, 2 Bom., 323. • Timmappa Bhat r.

Lecture V. " The rights of a wife or of a widow, and those of a son's

Source page 226

212 DISSOLUTION OF MARRIAGE — WIDOWHOOt). Lecture V. " The rights of a wife or of a widow, and those of a son's widow, to maintenance, appear to me to be governed by very different principles. A son's widow has not the same legal rights against her father-in-law as a wife has against her husband, or as a widow has against the heirs of her husband who take his estate by inheritance. The father is not heir to his son in preference to the son's widow. " A son's widow has no right in her father-in-law's estate, and, upon partition of such estate, she is not, like a daughter, entitled to a share, even though the estate was ancestral. " The rule laid down in Ruggomonee Dassee versus Shib Chunder Mullick, Hyde's Reports for 1864, page 103, viz., that the maintenance of a son's widow is a mere moral duty on the part of her father-in-law, and that the case is distinguishable from those in which an heir takes pro- perty subject to the obligation of maintaining persons who are excluded from inheritance, or those whom the deceased proprietor was morally bound to maintain, appears to me to be correct. " The obligation of an heir to provide out of the estate which descends to him maintenance for certain persons whom the ancestor was legally or morally bound to main- tain, isa legal as well as a moral obligation, for the estate is inherited subject to the obligation of providing such main- tenance. Ason who takes his father's estate by inherit- ance is bound to provide maintenance for his father's widow. The obligation is a charge upon the estate, which continues as long as the widow remains chaste, whether she continue to live in the family of the heirs or not." As the Judges who composed the Full Bench were equally divided in opinion, an appeal was preferred under section 15 of the Letters Patent of the High Court, and the case

finally came on for hearing before another Full Bench of Lectube Y.

Source page 227

213 finally came on for hearing before another Full Bench of Lectube Y. seven Judges/ who unanimously affirmed the judgment of the Chief Justice, mainly on two among other grounds, namely, ^rs^, because the rules of the Hindu law on the point (such as the texts of Manu, Narada, and Brihaspati already quoted) are mere moral injunctions, as appears from their being enforced only by moral sanctions, while other rules that are meant to be rules of law are declared enforceable by fine and other temporal sanctions ; and secondly, because it would be most imreasonale and inconvenient to allow the claim of the widow in such cases. Upon the question whether a son's widow is entitled to be supported by her father-in-law if she resides in his house, Mr. Justice Norman observed : " If she resides in the house of her father-in-law and is an infant, and for that or other reasons is unable to maintain herself, there may be, and probably is — ^both according to Hindoo law and according to natural law, equity, and good conscience, — a legal obliga- tion on the part of the father-in-law, who has taken upon himself the care of her person and the charge of entertain- ing her as a member of his family, and on whose protection she is dependent, to provide her with food and the actual necessaries of life."^ Mr. But as the question was not raised before the Court, the other Judges expressed no opinion upon it ; so that it still remains an open question. Considering the constitution of Hindu society, considering the extremely helpless condition of the Hindu widow, and considering that the obligation of the father-in-law or other near rela- tion to give her food and raiment if she resides in his » See 10 W.

Lecture V. house, is not only enjoined by precept, but

Source page 228

214 DISSOLUTION OF MARRIAGE — WIDOWHOOD. Lecture V. house, is not only enjoined by precept, but is also confirmed by invariable usage, it is hoped, that should this question ever arise, it will be decided in favour of the widow. In the judgment of Sir Barnes Peacock, you will observe that an important general rule has been laid down regard- ing a person's liability to provide maintenance for others. That rule is this, that the heir of a person taking his estate is legally bound to maintain all those whom the late proprie- tor was either legally or morally bound to maintain; for the heir takes the estate of the ancestor for his spiritual benefit. Thus, in this instance, what was a mere moral obligation in the ancestor becomes transformed into a legal obligation in his heir. Arrears of maintenace already due have however been held to be liable to attach- ment in execution of decree.^ Maintenance A widow forfeits her right to maintenance by reason of forfftited for unchastity, uuchastity.* But this rule of forfeiture has been held not ^ L L.

Suits for maintenance have been held to be cosrnizable by Suits for main-

Source page 229

WIDOW ENTITLED TO LIVE IN FAMILY HOUSE. 215 to extend to a claim for starving maintenance, — that is, bare Lecture V. food and raiment/ " '' tenance. Suits for maintenance have been held to be cosrnizable by Suits for main- Courts of Small Causes;^ and the decree in such a suit may- provide for future maintenance, which may be recovered by process of execution.'^ But a Small Cause Court has no jurisdiction to determine the right to maintenance where that is denied.* A Hindu widow is entitled to live in her husband's dwell- Widow entitled . to reside in the ing-house, and his heir or the purchaser from such heir has family dweii- .1 . . ing-house. no right to turn her out without providing for her some other suitable dwelling. This rule has been laid down by the High Court of Bengal in the case of Mungala Dabee v. Dinonath Bose^ Sir Barnes Peacock in his judgment in that case observed: "I have very great doubt myself whether a son, whether natural bom or adopted, is entitled to turn his father's widow and the other females of the family who are entitled to maintenance out of the dwelling selected by the father for his own residence, and in which he left the females of his family at the time of his death. No one who is at all acquainted wdth the usages and customs of Hindoos, can doubt that it would be highly injurious to the reputa- tion of the females of a family to be turned out of the residence, at least until some other proper place has been provided for them.

Lecture V, ' except his whole estate and his dwelling-house, what

Source page 230

216 DISSOLUTION OF MARRIAGE — WIDOWHOOD. Lecture V, ' except his whole estate and his dwelling-house, what remains after the food and clothing of his family, a man may give away, whatever it be, whether fixed or moveable ; otherwise it may not be given.' 2 Colebrooke's Digest, page 133. " The meaning of that passage is, that he must not give away his whole estate without providing food and clothing for his family, and that he must reserve ' one house, without which he himself or his family might want a dwelling.'" The question was raised whether this text of Katyayana was a mere moral precept or a rule of law ; and the Chief Justice, after some discussion, came to the conclusion that it was of the latter description. This decision has been followed in a recent case^ by the High Court of Allahabad. She is entitled The widow is also entitled to a share on partition. Her ■•■ to a share on partition. right is based upon the following texts :— . " Of heirs dividing after the death of the father, let the mother also take an equal share." (Yajnavalkya.)** " On the death of the father, the mother (janani) has a claim to an equal share with her own sons ; his mothers (matarah) take the same share ; and the unmarried daughters each a fourth of a share." (Brihaspati.)' " Mothers take shares proportionate to the shares of sons, and so do unmarried daughters." (Vishnu.)* From the foregoing text of Yajnavalkya, Yijnaneswara deduces the rule that when the heirs separate after the demise of the father, the mother takes a share equal to that of a son.' He does not explain whether the term mother ' Gauri v. R., 1 All., 262. « II, 123. ' Colebrooke's Digest, Bk.

— that is, whether, when the sons Lecturh V.

Source page 231

WIDOW ENTITLKD TO A SHARE OX PARTITION. 217 — that is, whether, when the sons Lecturh V. includes a stepmother, to a partition after their father's death, all his widows, come whether having sons or not, become entitled to shares. But the leading authorities of the cognate schools, the Vivada Chintamani,* the Vyavahara Mayukha,^ and the Smriti Chandrika,'' all maintain that the word ' mother ' includes a stepmother, so that, according to them, when the sons come to a partition, the farther's widows, whether sonless or hav- ing sons, are each entitled to a share equal to that of a son. The Bengal school, however, differs from the others. From this interpretation an important rule has been deduced, — namely, that the mother is entitled to a share only when her sons separate from one another, and that she is not entitled to any share when they separate from their half-brothers, if they continue joint among them- selves.^ To illustrate this rule by an example : suppose that a man has three sons, A, B, and G, by his wife X ; and four sons, D, E, F,[G, by another wife F. According to the Benares and the cognate schools, on partition, the property would be divid- ed into nine equal parts, and the nine persons, — namely, the seven sons and the two widows, — would each take one part. * Prossonna Coomar Tagore's translation, p.

Lecture V. But, according to the Bengal school, when the three

Source page 232

218 DISSOLUTION OF MARRIAGE — WIDOWHOOD, Lecture V. But, according to the Bengal school, when the three bro- thers A,B, and t7 separate from their half-brothers D, E, F, and G, the property would be divided into seven equal parts, and the two groups of uterine brothers would respectively take three and four of these parts, — that is, three-sevenths and four-sevenths of the whole ; and X and F would take nothing. And when the sons of X separate from one another, they divide their three-sevenths of the whole estate into four equal parts, and each of them takes one part, — ^that is, three- twenty-eighths of the whole, and their mother X takes an equal share. And so, when the sons of F come to a parti- tion, they divide their four-sevenths of the whole estate into five equal parts, and each of them gets one part, or four- thirty-fifths of the whole estate, and their mother gets an equal share. Where the mother has received any stridkan from her husband's family, her share on partition is reduced to as much as is equal to half of a son's share, according to some authorities;* and according to others,^ to as much as would, together with her stridJmn^ make her share equal to that of a son. When a man dies leaving no son — (the term son here includes a grandson and also a great grandson)* his widow, according to some of the sages, such as Yajna- > Dayabhaga, Ch.

widow's successiox. 219

Source page 233

219 vaklya, Brihaspati, Vishnu, and Brihat Manu, is his next heir. But there are also texts opposed to the widow's claim, such as those of Narada, Devala, Sankha, Likhita, Paithinasi, and Yama/ The true reason for this conflict of authority on a question of such evident practical importance as the succession of the widow to her husband's estate, it is not very easy to ascertain. Possibly, the adverse texts relate to a time when the patriarchal family system was in full force, and are relics of an archaic system of jurisprudence ; while the other texts have reference to a state of society comparatively more modem. This conflict of authorities, that in course of time have come to be regarded as equally entitled to respect, has been a source of no ordinary em- barrassment tomodern commentators ; and it has compelled • them to enter into long and intricate and often unsatis- factory processes of reasoning in order to reconcile these authorities. The Mitakshara, which is the oldest of modern com- mentaries, inreconciling these conflicting authorities, eflects a sort of compromise between archaic views and the more advanced notions of its own time. It holds that the texts adverse to the widow's claim apply to joint families, and deduces the rule that the widow, being chaste, takes the whole estate of a man, who being separated from his co-heirs, and not subsequently reunited with them, dies leaving no male issue.- But if he dies before separation or after reunion, his undivided or reunited kinsmen, and not his widow, become his heirs.

Lecture V. tion has been added by the Privy Council in the Shivagunga

Source page 234

220 DISSOLUTION OF MARRIAGE — WIDOWHOOD. Lecture V. tion has been added by the Privy Council in the Shivagunga case,i in which it has been held that if an undivided co- parcener has any separate property of his own, his widow shall be his heir so far as such property is concerned, though his undivided kinsmen would succeed to his joint property. At the present day, the rule laid down in the Mitakshara, with the qualification introduced by the Privy Council, is the law governing all the schools except the Bengal.^ But Jimutavahana, the founder of the Bengal school, who evidently entertains more advanced views on jurisprudence, as may be seen from his maintaining the doctrine of factum valet and the distinction between legal and moral injunc- tions/ does not accept Vijnaneswara's rule. He maintains the widow's right of succession in all cases, whether her husband was separated or unseparated from, or reunited or unreunited with, his coparceners. His rule being different from that laid down in the authoritative work of Yijnanes- wara, he feels the necessity of adducing a reason for it, and one that would be acceptable to his countrymen; and accord- ingly he avails himself of the doctrine of spiritual benefit which is sanctioned by Manu, and after an elaborate dis- cussion showing the bearing of that doctrine upon his present purpose,* concludes thus : — " Since by these and other passages it is declared that the wife rescues her husband from hell ; and since a woman doing improper acts through indigence causes her husband to fall (to a region of horror), for they share the fruits of virtue and of vice; * Kattama Nauchear v. C), 31. '^ See Vyavahara Mayukha, Ch.

the wealth devolving on her is for the benefit of I^ecture V.

Source page 235

221 the wealth devolving on her is for the benefit of I^ecture V. therefore the former owner ; and the wife's succession is consequently proper."* You will observe that this application of the doctrine of spiritual benefit, though perhaps not wholly uninfluenced by sacerdotal considerations, was meant by the founder of the Bengal school to serve one good purpose at least, — namely, the recognition and advancement of the pro- prietary rights of women. I do not mean to say anything in commendation of the Brahmanical lawyers, or their favorite doctrine. But I may say that the opinion which has been generally entertained, that sacerdotal influence has been invariably hostile to the rights of the Hindu female, is in the present instance not wholly correct.^ Here I may call your attention to the fact that, in treating of the widow's succession, Hindu lawyers draw a distinction between o^patni, or wife lawfully wedded in one of the approv- ed forms of marriage, and a woman espoused but not holding the rank of patni ; and commentators explain away some of the texts apparently adverse to the widow's claim by showing that they relate to women espoused and not to the patni.^ It is pointed out in the Smriti Chandrika,* upon the authority of Panini,^ that the term patni, anoma- lously derived from pati (husband), means the wife who can be associated with her husband in the performance of reli- gious sacrifices. ' See Ch. I, 44. * See Maine's Early History of Institutions, pp. 325 — 336 ; Maine's Village Communities, pp.

Lecture V. The extent of interest which a widow has in the estate

Source page 236

222 DISSOLUTION OF MARRIAGE — WIDOWHOOD. The extent of interest which a widow has in the estate from her husband was at one time a subject But she takes i^^^^rited esute'*^^'^ of some contention ; but the question has now been settled by decisions of the highest authority. I shall have to consider this subject again under the head of stri- dhan, and I need not dwell upon it at any length here. It will be sufficient for my present purpose to say that it has been held generally that the widow takes a special and qualified estate with a limited power of alienation, she being competent to alienate it only under certain circumstances and for certain purposes. Cavaly Vencata Narainapah, in which it was further observed :— " Their Lordships are of opinion that the restric- tions on a Hindu widow's power of alienation are insepara- ble from her estate, and that their existence does not depend on that of heirs capable of taking on her death. It follows that if, for want of heirs, the right to the property, so far as it has not been lawfully disposed of by her, passes to the Crown, the Crown must have the same power which an heir would have of protecting its interests by impeaching any unauthorized alienation by the widow."^ There is distinct authority in the Dayabhaga,* the Smriti Chandrika,^ and also in the Vivada Chintamani* (so far as immoveable property is concerned), for the position that the widow's interest is a limited one.

Benares school, the widow's estate in her husband's property Lfx-ture V,

Source page 237

WIDOW TAKES A QUALIFIED ESTATE, 223 i Benares school, the widow's estate in her husband's property Lfx-ture V, was absolute ; but the Privy Council observed : " The result of the authorities seems to be that although, according to the law of the Western schools, the widow may have a power of disposing of moveable property inherited from her husband, which she has not under the law of Bengal, she is, by the one law as by the other, restricted from aliening any immoveable property which she has so inherited ; and that, on her death, the immoveable property and the moveable, if she has not otherwise disposed of it, pass to the next heir of her husband." The question whether the widow has the power of alienating moveable property, which was left undecided in this case, was raised in the case of Bhugwandeen Doobey v. Myna Baee,*^ but the Judicial Committee answered it in the negative, ob- serving :" The reasons for the restrictions which the Hindoo law imposes on the widow's dominion over her inheritance from her husband, whether founded on her natural depend- ence on others, her duty to lead an ascetic life, or on the impolicy of allowing the wealth of one family to pass to another, are as applicable to personal property invested so as to yield an income, as they are to land. The more ancient texts importing the restriction are general. It lies on those who assert that moveable property is not subject to the restriction to establish that exception to the generality of the rule. The diversity of opinion amongst the Benares Pandits is sufficient to show that the supposed distinction between moveable and immoveable property is anything but well established in that school." This is the law of the Benares school. But, according to the Hindu law as it obtains in the Presidency of Bombay, the widow has been held to possess » 9 W.

Lrcture v. absolute right over moveable property inherited from her

Source page 238

224* DISSOLUTION OF MARRIAGE — WIDOWHOOD, Lrcture v. absolute right over moveable property inherited from her husband/ Though generally incompetent to alienate the property inherited from her husband, the wddow may yet effect a vaild alienation with the consent of all her husband's kindred who are likely to be interested in disputing the transaction.^ Succession of When there are several widows, the eldest or the first, several wi- dows, according to Sir Thomas Strange,^ succeeds to the estate, and the others are entitled to maintenance ; but according to Macnaghten,* they all jointly inherit their husband's estate. Justice Kemp in one case * observed, that it was a moot point whether, under the Mitakshara, the elder widow inherits the whole estate, the younger receiving maintenance, or whether the rights of the two widows are equal. Considering that by the term patni is meant the wife who has the right to be associated with her husband in his religious rites,^ and considering that accord- ing to Yajnavalkya, Vishnu, Katyayana, and Daksha,' that right belongs only to the eldest wife, Sir T. Strange's opinon is not altogether without authority ; but the balance of authority is decidedly in favor of the opposite view. In the Mitakshara there is a passage which seems to have been inadvertently omitted by Colebrooke in his transla- tion, but which ought to come betw^een verses 5 and 6 of '■ Pranjivandas Tulsidas v. Devkuvarbai, 1 Bom,, 130. * See Rajlukhee Debia v.

Section I of Chapter II of his translation, and which runs Lecture V.

Source page 239

225 Section I of Chapter II of his translation, and which runs Lecture V. thus :— " The singular number is intended to indicate (identity of) class. Hence if there be many (wives) of the same and different classes, they take the estate after dividing it accord- ing to their due shares." This is clear authority in favor of their joint right. The author of the Subodhini supports the view that there may be more patnis than one.* The Vyavahara Mayukha^ and the Smriti Chandrikas also expressly provide that if there be several widows they inherit jointly. The Dayabhaga and the Dayatattwa are not very explicit on this point, though Jagannatha thinks that, according to Jimutavahana, the eldest widow alone succeeds.* But, as has been pointed out,* the seniority of which Jimutavahana^ and Raghunandana' speak, is evidently seniority in point of class, and not seniority among several wives of the same class. The authority of reported decisions' is almost uniformly in favor of the rule that when there are several widows they all succeed to their husband's estate jointly. One of the latest cases on the point is that of Oajapathi Nilamani V.

Lecture V. A widow, in order to be entitled to succeed to the estate of

Source page 240

226 DISSOLUTION OF MARRIAGE — WIDOWHOOD. A widow, in order to be entitled to succeed to the estate of her husband, must be chaste at the time when the succession Effect of UQ- chaatity. opens. This is clearly laid down by all the commentators,' and has never been questioned. But the question whether subsequent unchastity in a widow would divest her of the estate already vested in her, has not been altogether free from doubt. It was recently raised before the High Court of Bengal, in the case of Kerry Kolitanee v. Monee Ram Kolita,^ which was heard before a Full Bench con- sisting ofall the Judges, and in which it has been held by the majority of the Court that a widow, who has once inherited the estate of her husband, is not liable to forfeit it for subsequent unchastity.

LECTURE VI.

Source page 241

CERTAIN CUSTOMARY AND STATUTORY FORMS OF MARRIAGE. Scope of the present Lecture — Conditions requisite for validity of custom — It must be ancient — continuous — and certain — It must not be immoral, nor opposed to the general spirit of the law — Burden of proof where custom is pleaded — Forms of marriage according to family usages — Custom in the Tipperah Raj— Custom among Uriya Chiefs— Forms of marriage according to local, tribal, and caste customs — Customs of Bengal — Tribes of Assam — The Koch— The Santals— Tribes of Chota Nagpore— Customs of the North- West and the Punjab — Customs of the Bombay Presidency — Parties to mar- riage— Betrothment — Divorce — Remarriage — Customs of Southern India — Prohibited degrees — Different forms of marriage — Malabar law — Canarese law — Divorce and remarriage — Forms of marriage according to sectarian customs — Vaishnavas — Gosavis — Buddhists — Jainas — Sikhs — Brahmos — Ke- raarriage of widows — Act XV of 1856 — liemarks on its provisions — Act III of 1872. We have hitherto been considering the Hindu law of Scope of the marriage strictly so called, — that is, the law as laid down by ture.present Lec- ^ the sages and the commentators. But that is not the whole of the law on the subject. There are Hindu tribes, Hindu families, and Hindu sects, which, from differences in habits, sentiments, and doctrine, and from other causes, are found to observe practices in relation to marriage widely dif- ferent from those enjoined by the Hindu sasti^as ; and, from the position assigned to custom as a source of law in Hindu jurisprudence,! these practices are regarded as legal, and the rules regulating them form an important supple- ment tothe Hindu law. The British Indian Legislature, too, has legalized certain descriptions of marriage, with a view to meet the growing wants of Hindu society.

Lecture VI. forms of marriage, and, secondly, the forms that have been

Source page 242

228 CUSTOMARY AND STATUTORY FORMS OF MARRIAGE. Lecture VI. forms of marriage, and, secondly, the forms that have been declared legal by statute law. Conditions An account of the customary forms of Hindu marriage requisite for validity of custom. may be prefaced with a few words explanatory of the condi- tions necessary for the validity of custom in Hindu law. Under the English law, a custom in order to be valid must be ancient, invariable, reasonable, and certain. Similar qualifications apply more or less to custom under the Hindu law. It must be The most important of these qualifications is, that a custom ancient, must be ancient in order that it may have the force of law. " Immemorial custom," says Manu,* " is transcendent law, approved in the scripture, and in the codes of divine legislators." So the text of the Vamana Purana, quoted by Vachaspati and Raghunandana, declares : " A man should not neglect the approved customs of districts, the equitable rules of his family, or the particular laws of his race.

laws having become vested Lecture VI.

Source page 243

CUSTOM MUST BE ANCIENT AND CONTINUOUS. 229 laws having become vested Lecture VI. these dates, the power of making in the British Legislature, no change can be effected in the Hindu law by any other agency. The correctness of this rule, however, is in some cases open to question. Hindu law, though it has now lost its vitality considerably, is, nevertheless a growing system, susceptible of change from within ; and it may well be urged that the legislature, when it declares that the Hindu law shall be the rule of decision in certain cases, refers to the living Hindu law at the time, and not to the obsolete Hindu law of any definite epoch. We may, at any rate, fairly say, that, in the Hindu law, not only is it unnecessary to trace back the existence of a custom to any definite date, but even the indefinite condition of being ancient may, in favor of some classes of customs, have to be dispensed with. Thus, suppose that a new Hindu sect comes into existence, and, from religious scruples, adopts a form of marriage somewhat different from the orthodox form ; it would be going too far to hold that these marriages are void, and thus to bastardize a whole commu- nity, simply because the sect and its practices are of recent origin.

Lecture VI. Certainty is another condition necessary for the validity of

Source page 244

230 CUSTOMARY AND STATUTORY FORMS OF MARRIAGE. Certainty is another condition necessary for the validity of custom ; and a custom that is fluctuating and uncertain is no and certain. . , n i custom at all. It must not Another condition for the validity of custom, which be immoral, t • , n t • • tx* i nor opposed forms the suDject 01 some discussion m Jlmdu junspru- spirit of ^th? dence, is, that it must not be immoral, nor opposed to the *^* general spirit of the Hindu law. Jagannatha has some pertinent, though somewhat quaintly expressed, observa- tions onthis point : " The use of law," says he, " is only to prevent the introduction of multiform practices at the will of men of the present generation. But where no positive ordinance is found, there is nothing inconsistent with any known law, and in that case approved usage alone must regulate proceedings!'^ The truth is, that custom, from its very nature, must be inconsistent with the general rule of law, if there is any rule on the subject ; and, therefore, the condition under notice ought to be regarded as sufficiently complied with, if there is, as Mr. Justice West expresses it, a general congruity with the Vedic system.* The fulfilment of this condition has been always insisted upon by the Courts.

agreement to dissolve Lecture VI.

Source page 245

231 CUSTOM agreement to dissolve Lecture VI. Court of Bengal has held, that an High happening of a certain contingency is a marriage on the to the policy of the law ;* and the void as being opposed High Court of Bombay refused to recognize a custom by which a wife could obtain divorce and marry again without the consent of her husband, on the ground of its being an immoral custom, and its being entirely opposed to the spirit of the Hindu law.* But here an important distinction ought to be observed. Conformity with the general spirit of the Hindu law is to be insisted upon as a necessary condition, only in those cases where the custom pleaded is one obtaining among people who are Hindus properly so called, and who follow that law in the main. But this condition is not applicable to the customs of people such as the Nairs and the Maravars of Southern India, who observe practices widely different from those of real Hindus, and who can be called Hindus only because of the indefinite character of Hinduism. To make the validity of their customs depend upon conformity with the general spirit of the ffindu law, would be to abro- gate those customs altogether, and either to leave these people without law, or to force upon them the Hindu law of the sages and the commentators. The truth is, that the bodies of customs governing these tribes and classes are not in the nature of exceptions to the general Hindu law, for that law has never been the rule with them ; but they are distinct bodies of law in themselves, co-ordinate with that larger body which has been reduced to writing, and is known as the Hindu law properly so called. * Seetaram v.

Lecture VI, Custom being usually in the nature of an exception to the

Source page 246

232 CUSTOMARY AND STATUTORY FORMS OF MARRIAGE. Lecture VI, Custom being usually in the nature of an exception to the general law, the rule is, that a party who pleads a custom Burden of proof where as obtaining in any particular community or family of custom is pleaded. Hindus, in derogation of the ordinary Hindu law, must prove its existence by evidence ; that, in the absence of such evidence, the general law shall prevail/ Generally speaking, the correctness of this rule is undeniable. But the application of this rule to some cases may call for a word of explanation. Thus, in the case of Lalla Mahabeer Pershad v. Where a custom does not govern a tribe or a community, but is peculiar only to a single family, the above rule is more strictly enforced than ever.

law for itself; and in some cases* they have gone even so Lecture VI

Source page 247

FORMS OF MARRIAGE ACCORDING TO FAMILY USAGES. 233 law for itself; and in some cases* they have gone even so Lecture VI far as to deny the validity of family customs in derogation of the general law, except as regards Rajas and Chiefs. I may observe that, in the absence of evidence to the con- trary, itis a presumption of Hindu law that a family, migrating from one province to another, retains its old customs f and this presumption is founded upon the fact that, notwithstanding any change of domicil, the Hindus, as a rule, tenaciously cling to their old usages. It is perhaps partly owing to this fact, that in one and the same loca- lity difterent customs may be observed to prevail in differ- ent families, while in places widely distant from one another, the same customs may be found to exist. A custom may be either peculiar to a single family, or it may be common to a group of families, the common bond of union being residence in a particular locality, or unity of tribe or caste, or unity of creed. So that, the customary forms of marriage in Hindu law may, for convenience of treat- ment, be divided into the following classes : those according to family customs ; those according to local, tribal, or caste customs ; and those according to sectarian customs.

Lecture VI Courts. The question has been raised in connection with

Source page 248

234 CUSTOMARY AND STATUTOliY FORMS OF MARRIAGE. The question has been raised in connection with the subject of inheritance ; and though in the case of great families, such as those of Rajas and Chiefs, the authori- ties are unanimous in upholding the validity of well- established ancient kuldchdr, or family custom,^ there ap- pears tobe some difference of opinion about the validity of custom prevailing in a petty family. Thus, the High Court of Bombay, on one occasion, observed, that " it would be a dangerous doctrine that any petty family is at liberty to make a law for itself, and thus to set aside the general law of the country ;"^ and the same view was adopt- ed both in Madras and in Bombay in subsequent cases.' But in a recent case,* Mr. Justice West, after a full examina- tion of the authorities on the subject, has come to the con- clusion that a family custom of proved antiquity, is entitled to be recognized by the Courts, irrespective of the position and rank of the family ; and this rule is, no doubt, in accord- ance with the texts of Hindu law, which make no distinc- tion between great and petty families. The truth is, that a petty family is not likely to be able to trace its customs very far back, and that a family must be of some position and eminence, in order to be able to establish the antiquity of its customs ; so that practically, in the majority of cases, kuldchdr, such as should have the force of law, can be estab- lished only in regard to great families. Forms of marriage differ in their minor details according * See Rajah.

usages of different families. These points of differ- Lkcture VI.

Source page 249

These points of differ- Lkcture VI. to the ence it would be useless to enumerate, were it indeed possible to do so. Even the usages of great families, involv- ing important points of departure from the general Hindu law, however valuable as a collection of facts, is hardly entitled to detailed enumertion in a course of lectures like the present. Such usages, when contested, shall have to be proved by evidence. I shall notice here only a few of the customs relating to marriage in great families, which have recognized. - • • been judicially In. the Tipperah Raj family, in addition to the orthodox Tr*e™h"R*^'^ forai of marriage, there is another form called the santigri- hita, which is sanctioned by custom, and which is celebrated by the worship of the goddess Tripura, and the takino- of santi (benediction) water.^ This form is sometimes identified with the gandharha form. A woman married by the Raja in this inferior form is called a Kachua Ranee, and is styled simply a Devi, while women married by him in the proper form are designated Maharanees and Mahadevis. Justice Morris, in his judgment in the Tipperah Raj case, observes :— ^ " It is manifest that the people of Tipperah, from the Rajah downwards, are very primitive, and that, in their manners and customs, they by no means follow the strict tenets of the Hindu religion.

Custom nnioiig The marriage customs of the Uriya Rajahs and Chiefs,

Source page 250

286 CUSTOMARY AND STATUTORY FORMS OF MARRIAGE. The defendant, a younger son of the late Rajah, resisted the claim on the ground that the plaintiff's mother was a begurhhati wife of the late Raj ah, — ^that is, one in whose hands the Rajah would not take cooked rice, owing to the inferiority of her father's family ; and that, by a custom of the family, the son by such a wife was not entitled to the estate. The High Court of Bengal considered the custom not proved, and held that there ^was no distinction between legitimate children born of mothers belonging to the same great caste of Kshatriyas. It would appear from this case that it is customary with the Rajahs in the Jungle Mehals to marry women belonging to inferior grades of the Kshatriya caste, who are styled Ranees and regarded as lawful wives in every respect. Custom nnioiig The marriage customs of the Uriya Rajahs and Chiefs, Uriya Chiefs. are given in the compilation known as the Pachis Sawal, or twenty-five questions, put by the Superintendent of the Tributary Mehals in 1814 to the leading Rajahs in the Tributaiy Mehals, with their answers to the same. The following is the substance of these customary rules :— The Rajahs may have a plurality of wives, there being sometimes as many as seven, the first being styled the Pat Ranee, or Bara Pat Maha Daee, and the others simply Ranees.'' > W.