1911 Encyclopædia Britannica/Indian Law
INDIAN LAW.—The law in force in British India may be conveniently divided into five heads: (1) The law expressly made for India by the British parliament, or by the sovereign. (2) English law in force in India though not expressly made for India. (3) The law made by persons or bodies having legislative authority in India. (4) Hindu law. (5) Mahommedan law. The first three of these are frequently described as Anglo-Indian law. They are with rare exceptions territorial, i.e. they apply generally, either to the whole of India, or to a given area, and to all persons within those limits. The last two are personal, i.e. they apply only to persons who answer a given description.
1. The Law expressly made for India by the British Parliament or the Sovereign.—There are in existence about 120 acts of parliament containing provisions relating to India. The greater portion of these provisions relate to what may be called constitutional law, such as, the power of the East India company, the transfer of these powers to the crown, the powers of the secretary of state, of the Indian council, of the council of the governor-general, and of the other councils in India, and so forth. The law made by the sovereign consists mainly of charters granted to the four high courts of Bengal, Madras, Bombay and the North-West Provinces. A great many charters were granted to the East India Company, and some of the earlier ones contained very important provisions as to the legislative and judicial authority to be exercised in India, but these provisions are now obsolete.
2. The English Law in force in India though not made expressly for India.—A considerable portion of the law of England, both statute law and common law, was introduced into India by the assumption that when courts of justice were established in India, to be presided over by English judges, it followed that they were to administer English law as it stood at the time of the granting of the charter so far as it was applicable. There has been considerable doubt as to when this assumption ceased, but the date generally assigned for this purpose is 1726. It only applied, however, to courts established before this date under the direct authority of the crown, that is to the charter courts of Calcutta, Madras and Bombay, and at a very early date (21 Geo. III. c. 70) the jurisdiction of these courts was limited, practically, to the inhabitants of the presidency towns and to suitors of European origin residing elsewhere. Moreover, even in the presidency towns, these courts were directed to apply to Hindus and Mahommedans their own laws in regard to all matters of inheritance and succession, family law and matters relating to religion or caste. In the territories outside the presidency towns where courts of justice were established by the East India company, acting under the authority of the emperor of Delhi, the only assumption that could be made as to the law to be administered was that it was the law already in existence. Acting on this assumption the company’s courts administered the Mahommedan criminal law which was the general law of the subjects of the Mogul emperor: the revenue system remained, as did also the existing relations of zemindar and ryot, i.e. of the cultivator and of the persons intermediate between the state and the cultivator. In regard to matters of family law, inheritance and succession, religion and caste the company’s courts were expressly enjoined to apply the Hindu law to the Hindus, and the Mahommedan law to the Mahommedans. Of course it was also the duty of these courts to recognize well-established local usages. Thus practically all the topics of litigation at that time likely to arise were provided for. It was as time went on, when by intercourse with Europeans new ideas, and with them new wants, sprang up in the native populations, that gaps came to be discovered in the law. To such cases the judges had been vaguely told that they were to apply “the rules of equity and good conscience,” which they naturally sought in the English law. The matters in which the notions of English law have most affected India are the power of completely separating the ownership of property from the enjoyment of it by means of trusts, the testamentary power, the creation of life estates, the substitution of one owner of property for another on the happening of some future event, the rules of evidence, criminal law, civil and criminal procedure and the subordination of the executive to the ordinary law. Upon all of these topics the law of India is mainly English. Not that the whole of it rests upon the slender authority above described. Much of it, as will appear presently, was introduced by the Indian legislatures; much of it also, although originally introduced by the courts, has since received legislative sanction.
3. The Law made by Persons or Bodies in India having Legislative Authority.—As a general proposition it would be true to say that wherever a British authority has legislated in India it has been largely influenced by the English law. The legislative authorities in India are very numerous. Those now existing are (1) the governor-general of India in council; (2) the governor of Madras in council; (3) the governor of Bombay in council; (4) the lieutenant-governor of Bengal in council; (5) the lieutenant-governor of the North-Western Provinces in council; (6) the lieutenant-governor of the Punjab in council; (7) the lieutenant-governor of Burma in council; (8) the lieutenant-governor of Eastern Bengal and Assam in council. No legislative enactments of any kind passed in India before 1793 are now in force. In Bengal in the year 1793 forty-eight regulations (as they were then called) were passed in a single day, and it was assumed that all previous legislation in Bengal was thereby superseded. Similar regulations were passed about the same time, and the same assumption was made, in Madras and Bombay. As new territories were acquired by the government of India, the existing regulations were in some cases extended to them, but in other cases this was thought not to be convenient, and for these territories the governor-general in council issued general orders, not in the regular way of legislation but in exercise of his executive power. Hence the distinction between “regulation” and “non-regulation” provinces. Any doubt as to the validity of the orders so made was removed by the Indian Councils Act 1861. The term “regulations” was dropped after the passing of the 3 & 4 Will. IV. c. 85 (1833), and since that time the word “Acts” has been in use. Acts are referred to by the year of their enactment.
Several attempts at extensive legislation in India, intended apparently as a step towards a general codification of the law, have been made. The act of 1833 above mentioned directed the issue of a commission in India which was intended to survey the whole field of law and to suggest such alterations as appeared desirable. Of this commission Lord Macaulay was a member. It never attempted to perform the large task indicated in its appointment, but it produced a draft of the Penal Code (Act XIV. of 1860). It was not, however, until 22 years after Lord Macaulay left India that the Penal Code became law, and in the meantime the draft had been a good deal altered. The Penal Code is, undoubtedly, the most important, as it is also the most successful, effort of Indian legislation. It is to a large extent a reproduction of the English law of crimes. But there are some important differences; for whereas there are in English law no authoritative definitions of such important crimes as murder, manslaughter, assault and theft, and many kindred offences, the Penal Code seeks to define every crime with precision. Moreover, the Penal Code imports into the definition of nearly every crime, and, therefore, into the charge on which the accused is tried, words the purport of which is to describe the state of mind of the accused at the time the alleged act was committed, thereby making it necessary to ascertain at the trial what that state of mind was. This in England is not necessary to anything like the same extent. For example in England, in order to charge a man with manslaughter all that is necessary to allege is that A killed B. But in order to charge a man with culpable homicide it is necessary to state with much particularity what the accused intended, or what he knew to be likely to happen when he did the act; and this condition of mind must be proved at the trial. It is true that this proof is facilitated by certain presumptions, but nevertheless it sometimes presents considerable difficulty. On the other hand, in dealing with offences against property the authors of the Penal Code have cleared away entirely the difficulties which have long beset the English law as to how to deal with a man who, having become possessed of property, dishonestly misappropriates it. English lawyers have tried to squeeze as many of these cases as they can into the crime of larceny. The Penal Code simply makes dishonest misappropriation a crime in itself. (See further Criminal Law.)
In 1853 and again in 1861 commissions were appointed in England to draw up a body of laws for India “in preparing which the English law should be used as a basis,” but the only direct result of these two commissions was the Indian Succession Act (Act X. of 1865). But as Hindus and Mahommedans are excluded from the operation of this act its application is limited. The wills of Hindus are provided for by Act XXI. of 1870. Two important acts, however, were passed in India shortly after the attempt to legislate for India through commissions sitting in England came to an end, namely the Evidence Act (Act I. of 1872) and the Contract Act (Act IX. of 1872). Both these acts have been a good deal criticized. Two other important acts passed somewhat later are the Transfer of Property Act (Act IV. of 1882) and the Trusts Act (Act IV. of 1882). These acts are all substantially reproductions of the English law.
The law relating to land revenue has been the subject of innumerable regulations and acts of the Indian legislature. A description of the revenue systems prevailing in India will be found in the article on India. The law which governs the relation of ryots (i.e. cultivators) to those who for want of a better term we must call landlords has grown to a considerable extent out of the revenue system. The view which was at first taken of this relation was unfortunately affected by English notions of the relation of landlord and tenant, but this view has been considerably modified in favour of the tenant by recent legislation.
Books of Reference on Anglo-Indian Law.—Morley, Analytical Digest (1849); Stokes, Anglo-Indian Codes (1887); Ilbert, Government of India (1906), which contains a very useful Table of Acts of Parliament and Digest of their contents; Strachey, India, its Administration and Progress (1903); Baden-Powell, Land Systems of British India (1892); Wigley, Chronological Tables of Indian Statutes (Calcutta, 1897).
4. Hindu Law.—The Hindu law is in theory of divine origin, and therefore unchangeable by human authority. Ask a Hindu where his law is to be found, and he will reply “In the Shasters.” The Shasters are certain books supposed Sources of Hindu Law. to be divinely inspired, and all of great antiquity. They contemplate a state of society very unlike that of the present day, or that of many centuries back. It follows that these sacred writings, whilst they leave many of the legal requirements of the present day wholly unprovided for, contain many provisions which no Hindu even would now think of enforcing. Consequently, in spite of the theory, the law had to be changed. Legislation, which with us is the most potent as well as the most direct instrument of change, has had scarcely any effect on the Hindu law. Probably it never entered into the head of any Hindu before British rule was set up in India that any human agency could be entrusted with the power of making or changing the law; and although both the Indian legislatures and the British parliament have full power to legislate for Hindus upon all matters without any exception, they have, in fact, hardly ever exercised this power as regards the Hindu law. Custom is a less direct instrument of change than legislation, and operates more slowly and secretly, but its influence is very great. The custom which supplants the sacred law may indeed be as old or older than the sacred law, and its existence may be due to the divinely inspired law having failed to displace it; or the habits and necessities of the people may have engrafted the custom upon the sacred law itself. In either view there has been no difficulty in accepting custom where it varied from the sacred law. Indeed, the sacred books themselves recognize to some extent the operation of custom. Thus we find it said in the Laws of Manu (viii. 4, 1), “the king who knows the sacred law must inquire into the laws of castes, of districts, of gilds and of families, and thus settle the peculiar law of each.” It is to the influence of custom that the divergence between the Hindu law of to-day and that of the Shasters is largely due. Another method by which law is developed, and one more subtle still, is interpretation; and it is one which in skilful hands may be used with considerable effect. Without any dishonesty, people very often find in the language of the law words sufficiently vague and comprehensive to cover the sense which they are looking for. The action of interpretation upon Hindu law differs accordingly as it took place before or after the British occupation. Formerly the only persons whose interpretation was accepted as authoritative were the writers of commentaries. But the Indian courts are very sparing in accepting modern commentaries as authoritative, though nevertheless they carefully record their own interpretations of the law, and these are always treated as authoritative. It follows, from the very nature of the influences thus brought to bear upon law, that not only have the sacred books been departed from, but that different results have been arrived at in different parts of India. The differences have led recent writers to speak of five schools of Hindu law, called respectively the Benares school, the Bengal or Gauriya school, the Bombay school or school of western India, the Dravida school or school of southern India and the Mithila school—the district last named being a very small one to the south of and adjoining Nepal. But it would be a great mistake to suppose that the differences between these so-called schools are comparable to each other in importance. As will appear presently, it would be much more correct to speak of two schools, that of Benares and that of Bengal—the other three being subdivisions of the first.
It will be convenient to give a short description of those of the sacred books which are actually in use in the Indian courts when they desire to ascertain the Hindu law. Of these by far the first in importance, as well as the first in Sacred Books. date, is the one which we call the Laws of Manu. It has been translated by Professor Buhler, and forms vol. xxv. of the “Sacred Books of the East,” edited by Professor Max Müller. If we examine it, we find that only about one-fourth of the book deals with matters which we should call legal, the rest being concerned with topics either purely religious or ceremonial. And of these topics only one, that relating to partition of family property, belongs to that portion of the Hindu law which is administered in the courts, and, as one would expect, what is said on this topic has been largely departed from under the influences above described. Very little is known as to the date of the Laws of Manu. They are probably much older than their present form, which Buhler places somewhere between 200 B.C. and A.D. 200. Of more interest than the exact date is the state of society which they disclose. The tribal and nomadic stage had passed away. Society had so far settled down as to possess a regular form of government under a king. The people were divided into four great castes, representing religion, war, commerce and agriculture and servitude. Justice is spoken of as administered by the king. Provision is made for the recovery of debts and the punishment of offences. There are rules relating to the pasture of cattle, trespass by cattle and the enclosure of cultivated fields. There was evidently considerable wealth in the shape of horses, carriages, clothes, jewelry and money. There is no mention of land in general as the subject of permanent private property, though no doubt the homestead and the pasture land immediately adjoining were permanently owned.
The (so-called) Smriti of Yajnavalkya was, no doubt, a work of considerable importance in its day, and is still sometimes referred to. It shows a somewhat more advanced state of society than the Laws of Manu. The occupier of land has a firmer hold upon it, and there seems to be even a possibility of transferring land by sale. The date of it has not been fixed, but it is thought to be later than the Laws of Manu.
The Smriti of Narada belongs to a still later period, perhaps to the 5th or 6th century of our era. It goes more into detail than the other two books just mentioned.
But far more important for practical purposes than these sacred books are the commentaries. These are not sacred. The most important of them all is that known as the Mitacshara. The author of it was named Vijnaneswara. His work is a commentary on the Smriti of Yajnavalkya, and it is supposed to have been written in the latter half of the 11th century. Only a portion of it is used by the law courts—that portion which relates to the partition of family property. The Mitacshara is an important authority for Hindus all over India, and in the greater part its authority is supreme. But there is one very important exception. In the district which is sometimes called Bengal Proper (from its correspondence with the ancient kingdom of Bengal, of which Gaur was the capital), and may be roughly described as the valley of the Ganges below Bhagalpur, the prevailing authority is a treatise called the Dayabhaga. It is, like the Mitacshara, as its name imports, a treatise on partition. The author of it was Jimutavahana. There does not appear to be any more distinct clue to its date than that this author wrote after the 12th century and before the 16th. The very important points of difference between the two commentaries will be stated hereafter. In western India there is a commentary of authority called the Vyavahara Mayukha. It belongs to the 16th century. Generally its authority is secondary to that of the Mitacshara, but in Gujrat its authority is to some extent preferred. In the south of India the Smriti Chandrika is a work of importance. It belongs to the 13th century. It generally follows the Mitacshara, but is fuller on some points. The Vivada Chintamani is used in the small district of Mithila. It is said to belong to the 15th century.
The joint family is by far the most important institution of Hindu society, and it is only through the joint family that we can form a proper conception of the Hindu law. It is the form in which the patriarchal system has The joint family. survived in India. There is nowhere in Hindu literature, ancient or modern, a description of it as it has existed at any time. In its general features it has always been too universal and too well known to be described. In the Laws of Manu we find very little about it, but what we do find is of great interest. The subject is taken up with reference to a question which in every patriarchal system imperatively requires an answer. What is to be done when a break-up of the family is threatened by the death of the common ancestor? Upon this subject the author of the Laws of Manu says in chap. ix. v. 104: “After the death of the father and the mother, the brothers being assembled, may divide among themselves in equal shares the paternal estate, for they have no power over it while the parents live.” Then in v. 105, “or the eldest son alone may take the whole paternal estate; the others shall live under him just as they lived under the father.” And in v. III, “Either let them thus live together, or apart if each desires to gain spiritual merit, for by their living separate merit increases, hence separation is meritorious.”
We may put aside what is said about the mother which is probably a survival of polyandry, and is now obsolete, and fix our attention upon three important points: (1) Authority is attributed to the father during his life; (2) the same absolute authority is attributed to the eldest son upon the father’s death, if the family remains undivided; (3) the sons are at liberty, are indeed recommended, to divide the property. Now, though there may be doubts as to how far this type of family was at any time the universal one, there cannot be any doubt that in those early times it largely prevailed, and that the modern Hindu joint family is directly derived from it. Moreover, it must be remembered that what is here discussed is not ownership, but managership. If the family remained undivided, the eldest son did not take the family property as owner; he only became the uncontrolled manager of it. So far as there was any notion of ownership of the family property, and it was in those early times quite rudimentary, it was in the nature of what we call corporate ownership. The property belonged not to the individual members of the family collectively, but to the family as a whole; to use a modern illustration, not to the members of a family as partnership property belongs to partners, but as collegiate property belongs to fellows of a college. Probably, however, in early times it never occurred to any one to look very closely into the nature of ownership, for until the question of alienation arises the difference between managership and ownership is not of very great importance; and this question did not arise until much later. When and under what circumstances Hindus first began to consider more carefully the nature of ownership we have no means of ascertaining. But we have very clear evidence that there was at one time a very warm controversy on the subject. Each of the two leading commentaries on Hindu law, the Mitacshara and the Dayabhaga, opens with a very long discussion as to when and how a son becomes entitled to be called an owner of the family property. Two conflicting theories are propounded. One is that the sons are joined with the father in the ownership in his lifetime; the other is that they only become owners when he dies, or relinquishes worldly affairs, which, according to Hindu ideas, like taking monastic vows, produces civil death. The author of the Mitacshara adopts the first of these views; the author of the Dayabhaga adopts the second; and this radical difference led to the great schism in the Hindu law. It follows that, according to the Dayabhaga view, the sons not being owners, the father is sole owner. He is both sole owner and uncontrolled manager. According to the Mitacshara view the father and the sons together are the owners, not as individuals, but as a corporation. But even this is not inconsistent with the father retaining his absolute control as manager. How far he has done so will be considered presently.
Hitherto, for the sake of simplicity, the position of father and son has alone been considered; but now take the case of several brothers living together with sons and grandsons. What is the nature of the ownership in this case, and in whom is it vested? Neither in the Dayabhaga nor in the Mitacshara is this question discussed directly, but each of these commentaries discloses the answer which its author would give to this question. According to the Mitacshara, of however many different branches, and of however many different members, a family may consist, they all form a single unity or corporation to which the family property belongs. Not that this is asserted in so many words; there is probably no Sanskrit word corresponding at all nearly to our word corporation. But this is the only language in which a modern lawyer can describe the situation. The members of the family are not partners; no one can separately dispose of anything, not even an undivided share. It is quite otherwise under the Dayabhaga. The property belongs to the members of the family, not as a corporation, but as joint owners or partners. Each is the owner of his undivided share; but not all the members of the Dayabhaga family have a share in the ownership; the sons whose fathers are alive are entirely excluded: the owners are those members of the family of any age who have no direct living ancestor.
This was the nature of family ownership in its two principal forms, but the possibility that an individual member of the family could have something exclusively his own is clearly recognized in the Laws of Manu. Thus in chap. ix. v. 206, it is said, “Property acquired by learning belongs solely to him to whom it was given, likewise the gift of a friend, a present received in marriage, or with the honey mixture.” And again in v. 208, “What the brother may acquire by his labour without using the patrimony, that acquisition made solely by his own effort he shall not share, unless by his own will, with his brothers”; and these texts, as we shall see presently, are still of practical application. Nowhere has a strict family system prevailed without some analogous measure of relief (see Sir H. Maine, Early History of Institutions, p. 110).
The modern Hindu joint family is a community the members of which are all descended from a common ancestor, and the wives and unmarried daughters of those who are married. Perhaps the wives and daughters might more correctly be said to belong to the family than to be members of it. In its complete form the family is said to be joint in food, worship and estate; and notwithstanding the divergence between the Mitacshara and Dayabhaga systems, the main external features of such a family are the same all over India. Every Hindu family has a common home. This does not mean that there is a single house in which all the members of the family continuously reside, but there is one house where the family gods remain, where the wants of all the members of the family are provided for, where the family worship is conducted, and to which every member of the family is at any time at liberty to resort. This is the real home of a Hindu. Any other residence, however long it may last, is looked upon as temporary. Here also the wives and children remain whilst the men are employed at a distance. With regard to the enjoyment of the family property there is no distinction, except such as the members of the family themselves choose to make. Everything is enjoyable in common. This is the same all over India. It is very necessary to distinguish between ownership and enjoyment. Although the ownership of the family property under the Mitacshara differs very materially (as explained above) from that under the Dayabhaga, the enjoyment in both cases is the same. There is one common fund out of which the wants of the family are supplied. No one is dependent upon his own contribution to the family fund. No one member can say to another, “You have consumed more than your share, and you must make it good.” On the other hand, whatever is earned goes into the common stock. Though separate acquisition is possible, it is exceptional, and there is always a presumption that the earnings of all the members belong to the common fund, so that if any member claims property as self-acquired he must establish his assertion by evidence as to how he acquired it, and that he did so “without using the patrimony.” The accounts of the family are kept by the manager, who is usually the eldest male, and he also generally manages the property. But he is assisted and controlled by the other members of the family. No separate account is kept of what each member contributes or receives. The expenditure on behalf of the various members of the family is scarcely ever equal, but this inequality creates no debt between the members of the family. If any one Is dissatisfied he can protest, and if his protest is not listened to, there is only one remedy—he can demand a partition. The powers of the manager are those of an agent: it is very rare to find them formally expressed, and they must be gathered from the usual course of dealing, either amongst Hindus generally, or in the particular family to which the manager belongs; and it is the custom for all the adult male members of the family to be consulted in matters of serious importance. The alienation of land is always looked upon as a matter of special importance, and, except in cases of urgent necessity, requires the express assent of all the members of the family.
If any member of a Hindu family who is one of the co-owners wishes for a partition, he can demand one, there never having been any compulsion on the members of a Hindu family to live in common. Of course in a Dayabhaga Partition. family there can only be a partition as between brothers, or the descendants of brothers; between a father and his sons there can be no partition, the sons not being owners. The father may, if he chooses to do so, distribute the property amongst his sons, and he sometimes does so; but this is a distribution of his own property, and not a partition. The father can distribute the property as he pleases. But the absolute power of the father in this respect has only been recently established. It used to be thought that, if the father made a distribution, he must give to each of his sons an equal share. It is now settled that the father is absolute. Under the Mitacshara, the ownership being vested in the father and sons, there can be a partition between father and sons, and the sons can always insist that, if a partition is made, their rights shall be respected. Whether, under the Mitacshara law, the sons have the right to demand a partition in opposition to their father has been much disputed. It is now generally considered that the sons have such a right.
In modern times if a partition takes place everything belonging to the family in common must be divided, even the idols. If there is only one idol, then each member of the family will be entitled to a “turn of worship,” as it is called. It is, however, open to the members of the family to make any special arrangements either for retaining any portion of the property as joint, or as to the mode of carrying out of the partition, provided they can all agree to it. It is remarkable that in the Laws of Manu no such complete partition as can now be required is prescribed. A list of articles is given of considerable importance of which no partition could be claimed. In chap. ix. v. 219, it is said, “A dress, a vehicle, ornaments, cooked food, water and female slaves, property destined for pious uses and sacrifices, and a pasture ground” are all declared to be indivisible. Land and the right of way to the family house were also at one time indivisible. These things, therefore, must have been used in common after partition had taken place, which looks as if the family were not entirely broken up; and it is possible that they inhabited several houses within the same enclosure, as is sometimes seen at the present day. It is not always easy to subdivide property amongst the sharers, especially where they are numerous; and cases occur where a better division could be made by selling the whole or a portion of the property, and dividing the proceeds. This could always be done with the consent of all the sharers; and now by Act IV. of 1893 of the governor-general in council it can be done with the consent of a moiety in value of the sharers.
Rulers in India are apt to look upon their territories as private property, but there is no instance on record of the succession to the throne being considered as partible. On the contrary, in the families which now represent the small mediatized princes, the family property is frequently, by a special custom, considered to be impartible. The property descends to the eldest male, the younger members of the family getting allowances, generally in the form of temporary assignments of portions of the family property.
Of course only the family property can be divided, and if any of the members make a claim on the ground of self-acquisition to exclude anything from partition, this claim must be considered; and if it is upheld, that portion of the property must be excluded from partition. These claims sometimes give rise to a good deal of litigation, and are not always easy to determine. It must be borne in mind, however, that self-acquired property becomes family property as soon as it has once descended. Thus if a man by a separate trade earns Rs.10,000, and dies leaving two sons and the son of a third son, these persons form a joint family, and the Rs.10,000 is family property. So also family property which has been partitioned remains family property still. Thus if A, a bachelor, gets on partition a piece of land and afterwards marries and has sons, under the Mitacshara law the father and sons form a joint family as soon as the sons are born, and to this family the land belongs.
When we come to deal with the question of what shares are taken on partition, it is convenient to follow the example of the Hindu commentators, and to treat the subject of inheritance in conjunction with it. The relative Inheritance. importance of these two subjects has not always been perceived, particularly by the early English writers on Hindu law. H. T. Colebrooke, the learned and accomplished translator of the Mitacshara and the Dayabhaga, published the two treatises together in one volume which he called The Law of Inheritance. But these treatises, although they deal incidentally with inheritance, are both described by their authors as treatises on partition only; and this, no doubt, is because the subject of inheritance, apart from partition, is of comparatively small importance. Inheritance is the transfer of ownership which occurs at and in consequence of a death. It follows from this that in a Mitacshara joint family there is no inheritance. The death of a member of the family makes no change in the ownership; not any more than the death, of a fellow in the ownership of a college, or of a shareholder in the ownership of a railway company. In a Dayabhaga family there is a case of inheritance whenever a member dies. The share of that member descends to his heir. But here, again, no perceptible change in the affairs of the family is occasioned thereby. The enjoyment of the family property is no more affected thereby than by a death in a Mitacshara family. It is only when a partition takes place that the devolution of the shares by inheritance has to be traced. Inheritance, therefore, apart from partition, has not to be considered when we are dealing with family property under either system.
Let us now consider partition in a Mitacshara family. Of course the only persons who can claim a share are the members of the family. These, as has been said, are the male descendants of a common ancestor through males, their wives and daughters. But the females are entirely excluded from any share on a partition, and we have to consider the males only. The rule for ascertaining the share to which each member of the family is entitled can be best explained by the following diagram, which represents the male members of a Mitacshara family of whom A is the common ancestor:—
The whole family may be considered as forming one group, which may conveniently be called the group A; and it is evident on inspection that the family may be subdivided into a number of smaller groups each similarly organized, each group consisting of a man and his own male descendants. Thus besides the group A we have the group B, consisting of B and his descendants; the group C, consisting of C and his descendants; and so on. A group may die out altogether, as if U and W were to die childless, E and M being already dead. The rule of partition proceeds upon the supposition—not an unnatural one—that a family, when it breaks up, separates always into groups, and that the shares are moulded accordingly. For example, suppose that when the partition is made the surviving members of the family are N, O, S, T, X, Y, Z; then to find the shares we must go back to the common ancestor and reconstruct the pedigree. There were at first four groups, but at some time, it is immaterial when, by the death of E and all his descendants the groups have been reduced to three; hence the first step is to divide the property into three equal parts, assigning one to each group. The group B was originally represented by three smaller groups, but now by only two, the groups F and G, and to each of these we assign 1 of 1, or 1. And, of the 1 assigned to the group F, N will get 1 and O will get 1. The other 1 is divided between the groups P and Q, each group getting 1. Then in the group P, X and Y will each get 1, while Z, as the sole representative of the group Q, will get 1. It may be noted in passing that this principle of division survives in the succession per stirpes, of which we find so many examples in other systems of law which had their origin in the patriarchal system. By a similar process we should find that S and T each got 1 of the property, they being the sole representatives of the groups C and D respectively. For the sake of simplicity we have taken a case where no example occurs of a father and son being both alive at the time of partition. But suppose P to be alive in addition to the persons mentioned above; then the group P gets 1, and that group consists of three persons, P, X and Y. There is no precise rule as to how the partition was to be made in such a case in the older Hindu law, and it is rarely that a partition takes place between father and sons, but if there should be one it is always assumed that the shares are equal, i.e. in the case under consideration each would take 1.
Turning now to a Dayabhaga family, we find that the property is vested, not in the family as a whole, but in certain individual members of it—that is to say, in those male members of the family who have no ancestor alive. And inasmuch as the undivided share of each member is his own, it follows that at his death inheritance will operate and it goes to his heirs. In order, therefore, to find what share each member takes on partition under the Dayabhaga, we must inquire into the history of the family and ascertain what share has become vested in each member of the family by the ordinary rules of inheritance. The rules of inheritance, as laid down in the Dayabhaga, are not very dissimilar to those which we find in other parts of the world. Everywhere we find that a man’s property is taken by his nearest relatives, but there are differences in the way in which proximity is reckoned. Everywhere also there is a preference given to males and the relatives through males over females and the relatives through females, but there are differences in the extent to which this preference is carried. The relatives of a man through males are called his agnates; the relatives of a man through females are called his cognates. In the Hindu law as at present administered there is no primogeniture, and a decided preference of males over females and of agnates over cognates. With regard to the question of proximity, the Dayabhaga lawyers deal with the matter in a very curious way. All Hindus, as is well known, offer some sort of sacrifice to their deceased relatives, and the person by whom the sacrifice is to be offered as well as the nature of the offering are very carefully prescribed. These sacrifices are said to confer a “spiritual benefit” upon the deceased, and this spiritual benefit is greater or less according to the nature of the offering and the person who offers it. Now the Dayabhaga lawyers say that the person whose offering confers the greatest spiritual benefit is entitled to succeed as heir. This being the theory, we must see what rules govern in India the offering of sacrifices to the dead.
The most important offering is that of the pinda, or rice cake, and the persons who are entitled to make this offering to the deceased are called his sapindas. The offering next in importance is that of the lepa, or fragments of the cake, the crumbs as we might call them, and the persons who make this offering are called sakulyas. The offering of least importance is the simple libation of water, and persons connected by this offering are called samonadacas. But who are sapindas, sakulyas and samonadacas respectively, and of each class whose offering is most efficacious? Practically we shall find that this question is solved by rules of consanguinity not unlike those which we meet with elsewhere. First of all come the sons; their offering is most efficacious, so that they are the nearest heirs and all take equally. Then come the sons’ sons; then the sons’ sons’ sons. Here we break off. The line of inheritance is not continued beyond the great-grandsons. There are other cases in which, as we shall see, there is a similar break when we get three degrees away from the propositus: nor is this peculiarity confined to the Hindu law. We find traces of a similar break in the Roman and in the Teutonic law. After the great-grandson comes the widow. It is difficult to establish her claim on the ground of spiritual benefit, and it rests upon authority rather than principle. The opinions of ancient writers on the subject are very conflicting. They are set forth at great length in the Dayabhaga, with a conclusion in favour of the widow. Probably the intrusion of the widow is connected with the fact that she could in early times by cohabitation with a brother, and in later times by adoption, procure an heir to her sonless husband. Next to the widow come the daughters and then the daughters’ sons. Their position, again, may be referred to the notion which prevailed in early times, that a Hindu who had no son of his own might take one of his daughters’ sons and make him his own. Then comes the father, then the mother, then the brothers, then the brothers’ sons, and then the brothers’ sons’ sons. The sisters are excluded, but their sons succeed after the brothers’ sons’ sons; then come the brothers’ daughters’ sons. Then, leaving this generation, we go a step backward, and proceed to exhaust the previous generation in precisely the same way. It is only necessary to enumerate these in their order: father’s father, father’s mother, father’s brothers, father’s brothers’ sons, father’s brothers’ sons’ sons, father’s sisters’ sons, father’s brothers’ daughters’ sons. Then going another step backwards we get father’s father’s father, father’s father’s mother, father’s father’s brothers, father’s father’s brothers’ sons, father’s father’s sisters’ sons, father’s father’s brothers’ daughters’ sons.
So far the line of succession is confined either strictly to male agnates, or to persons who may restore the broken line of male agnate relationship. But at this point, under the Dayabhaga, instead of exhausting the male agnates still further, as we might expect, we turn now to the cognates, i.e. the relatives of the deceased through the mother. It is said that these are also in some way sapindas. They are generally called bandhus. There is some difficulty in finding out the order in which they succeed, and since it is rare that an heir has to be sought outside the father’s family, the question has not been much discussed. The question would have to be decided by the religious doctrine of spiritual benefit, and it is not improbable that Hindus who are accustomed to keep up sacrifices which confer the benefit would be able to say whose sacrifice was most efficacious. When all the sapindas both on the father’s and mother’s side are exhausted, we then go to the sakulyas, and practically these are found by continuing the enumeration of agnates upon the same principle as that already indicated through three generations lower and three generations higher. On failure of the sakulyas we should have to fall back upon the samonadacas, but probably all that can be said with certainty is that the sakulyas and samonadacas between them exhaust entirely the male agnates of the deceased. Where there are several persons whose offerings are equally efficacious, i.e. who stand in the same relationship to the deceased, they all take: the male descendants per stirpes, and the other relatives of the deceased per capita.
These, then, are the rules which govern the ascertainment of the shares of the members of a family on a partition. Neither in a Mitacshara family nor in a Dayabhaga family have they any effect so long as the family remains joint: it is partition, and partition only, which brings them into play, and it is to this event rather than death that Hindu lawyers attach the greatest importance. Nevertheless all property in India is not joint property. Under the Mitacshara as well as under the Dayabhaga separate property may be acquired, and then, of course, we have true inheritance, for which the law must provide. So far as regards the Dayabhaga, the rules which govern the inheritance of separate property are (as we should expect) precisely the same as those which govern the inheritance of a share, and it is therefore unnecessary to restate them. But it remains to lay down the rules of inheritance for separate property under the Mitacshara law. They are not based by Mitacshara writers upon any religious principle, as under the Dayabhaga, yet the result is not widely different. First come the sons, then the sons’ sons, and then the sons’ sons’ sons. Then the widow, whose right has been disputed, but was long ago established; then the daughters, and then the daughters’ sons. After these come the parents, and it is peculiar that of these the mother comes before the father, then the father’s sons and then the father’s sons’ sons. Then we go back to the preceding generation, and follow the same order—the father’s mother, the father’s father, the father’s father’s sons, the father’s father’s sons’ sons. After this we go back another generation, and again follow the same order—father’s father’s mother, father’s father’s father, father’s father’s brother, father’s father’s brother’s son. From this point the statements of Hindu lawyers as to the order of succession are very scanty and vague. One thing is certain, that under the Mitacshara law no cognates (relations through females) are admitted until all the agnates (relations through males) are exhausted.
So far we have considered intestate succession only, and the power of testamentary disposition is unknown to the true Hindu law. It was introduced by the decisions of the British courts of justice. By a will is meant a declaration Wills. by a man of his wishes as to the disposition of his property after his death, taking no effect during his life. A will is therefore by its very nature revocable. The general question whether a Hindu could dispose of his property by will arose in Bengal when Hindus began to attempt to dispose of their property after their death according to the English method. At that time there was a doubt whether the father was so completely absolute that he could dispose of his property to the exclusion of his sons, even in his lifetime. As soon as it was settled that he could do so, it was assumed that he could also make a will. It seems never to have been asked why it was that up to this time no Hindu had ever made a will, or to question the radically false assumption that the power of alienation inter vivos and the power of testamentary alienation necessarily go together. A long series of decisions confirmed by the legislature has, however, established that a Hindu in modern times can dispose of any property of which he is the sole owner. In other words, a Hindu can dispose by will of his self-acquired property, and under the Dayabhaga a Hindu can dispose by will of his share in family property. But the courts which created the testamentary power have also limited it to disposition in favour of persons living at the time of the testator’s decease, thus avoiding many of the fanciful dispositions of property to which testators in all countries are so prone. But, curiously enough, this restriction, salutary as it is, has also been based on the notion that a testamentary disposition is a gift from the testator to the object of his bounty.
In almost all countries at an early stage of civilization some legal provision exists by which debtors can be compelled by their creditors to pay their debts, and by which, if they fail to do so, their property can be seized Debts. and applied to this purpose. But the extent to which this can be done varies very considerably. So long as the family system exists in its primitive vigour it acts as a protection to the family property against the extravagance of a single member, and we often find that even when the family system has almost, or completely disappeared, there is an unwillingness to deprive the future representatives of the family of their land and houses. Doubts, too, have arisen as to whether the same right which a creditor has against his living debtor can be exercised after the debtor’s death against those who have succeeded to his property. In India these two considerations have been deeply affected by a principle enunciated by Hindu lawyers (traces of which we find in many Eastern countries), that a man who dies in debt suffers cruel tortures in a future state, and that it is the imperative duty of his own immediate dependants to deliver him from these tortures by discharging his liabilities. Whether this should be looked upon as a legal, or only as a purely religious duty, might be questionable: the courts have seized upon it as a basis for laying down in the broadest manner the just rule that those who take the benefit of succession must take the burdens also. The subject is one which has caused a great deal of litigation in India, and whilst some points have been clearly settled, others are still being slowly worked out. As the matter stands at present, it may be safely said that all separate property is liable for the debts of the owner, both in his lifetime and after his death in the hands of his heirs. The same may be said of the share in the family property of the member of a Dayabhaga family, of which share he is the owner. So also the family property under both the Dayabhaga and Mitacshara is liable as a whole for the debts incurred on behalf of the family as a whole. As regards the question of the liability of the family property for the separate debts of the members of a Mitacshara family, the courts have held that the sons must pay their father’s debts. Of course illegality would be an answer to the claims of the creditors against the heirs, just as it would be an answer to the claim against the original debtor; but there is some authority for saying that a debt contracted for an immoral though not an illegal purpose would not be enforced against the heir. According to modern decisions also, if judgment and execution on a separate debt are obtained against the member of a Mitacshara family, the share which would fall to him upon a partition may by process of law be set apart and sold for the benefit of the creditor.
The doctrine of what is called maintenance plays an important part in the Hindu law, and, as we shall see, it modifies considerably the rigour of the Hindu law in excluding from the Maintenance. succession females or persons suffering from mental or bodily infirmity. The right of maintenance under the Hindu law is the right which certain persons have to be maintained out of property which is not their own. The persons who in certain circumstances have this right are sons, widows, parents and unmarried daughters and sisters. The claim of the widow arises at the death of her husband; of a child at the death of its parent, and so forth. The claim is not for a bare subsistence only, but to such a provision as is suitable to the claimant having regard to his or her position in life. Of course the sons are generally heirs, and an heir can have no claim to maintenance; but a son excluded by any mental or bodily defect would have a right to maintenance. The girls are generally married in infancy, and after marriage they have no claim to maintenance from their own family. The most frequent claim is by the widow; and it is a very important one, because she can sometimes, through the assertion of this claim, put herself almost in the position of an heir. If a Hindu under the Dayabhaga dies leaving sons and a widow, the widow is entitled to maintenance, and whilst the family remains joint she can claim to be suitably maintained, in the family if she remains in her husband’s house, or out of it if she goes elsewhere. But if a partition takes place she is entitled to have a share equal to that of the sons set aside for her use. She can even, if she thinks that the sons do not treat her properly, apply to the court to compel the sons to give her a separate share. This, of course, gives her a very strong position. Whether in a Mitacshara joint family the widow enjoying maintenance can in any case claim a share on partition is doubtful.
In some respects, and as regards some kinds of property, the ownership of women under the Hindu law differs from that of men. These differences depend on the source from which the property is derived. If a woman has Women’s property. inherited property from a male, or as a gift by her husband, or has obtained it as a share on partition, she does not own it in the same way as a man would do; she obtains only a kind of restricted ownership. She has the full enjoyment and management of it, but she cannot sell it, or give it away, or dispose of it by will; and at her death it goes not to her heirs but to the heirs of the person from whom she obtained it; her ownership simply comes to an end. If she obtained it by inheritance from a male, it will go on her death to the heirs of that male; if as a share on partition it will be divided amongst the other sharers; if as a gift from her husband, to the heirs of the husband. As regards property otherwise obtained she is in the same position as any other owner, but the rules of inheritance applicable to it are somewhat peculiar. It would be a mistake to look upon the restricted ownership of a woman as what the English lawyers call a life estate. There is no such thing as a remainder or reversion. The whole estate is vested in her. If we endeavoured to describe the position of affairs at her death in the technical language of the English law of real property, it would be more correct to say that there was a shifting use. The restriction of alienation is sometimes removed where there is a danger that the property might otherwise be lost, as for example when the property is likely to be sold for non-payment of government revenue, in which case a portion may, if necessary, be sold by the woman so as to save the remainder. So also a woman who has no other means of maintaining herself, or of providing for the performance of religious duties which are incumbent upon her, may sell so much of the property as will produce the necessary funds. It would be difficult for a purchaser to know whether he would be safe in purchasing from a widow selling under necessity, and more difficult still to preserve evidence of the necessity in case the necessity were disputed. Of course the woman herself could not dispute the validity of the sales, but those who take after her might do so. Consequently it is not unusual to obtain the concurrence of the person who at the time of the purchase is entitled to succeed if the widow were dead, and it has been held that if this person concurs in the sale, no one else can dispute it on the ground that it was unnecessary.
The subject of marriage is dealt with at considerable length in the Laws of Manu, and it is clear that, as originally conceived, marriage under the Hindu law consisted in nothing more than the mere possession of the woman, however Husband and wife. obtained, by the man with the intention of making her his wife. Eight kinds of marriage are enumerated, and to each kind is assigned a separate name. The first four kinds are merely different forms of gift of the girl by her father to the husband. The other four kinds are—obtaining possession of a girl by purchase, fraud, ravishment or consent of the girl herself. But the simple gift of the girl by her father without any bargain or recompense was even then considered the most reputable form of marriage, and it is now the only one in common use amongst orthodox Hindus. The sale of the daughter was even in those early times stigmatized as disgraceful, but it was valid; and even now, if there were an actual transfer of the girl by the father, it is scarcely probable that the courts would inquire whether any inducement was given for the transfer. The transaction takes place entirely between the father of the girl and the future husband; the girl has nothing to do but to obey. If the girl has no father, then it will be the duty of her nearest male relatives to dispose of her in marriage. If, however, the girl is not married when she attains puberty (which is very rare), then she may choose a husband for herself. The father cannot dispose of his son in marriage as he can of his daughter, nor is anything said about his consent in the matter; though in the case of a very young boy there can be no doubt that the consent of one or both parents is obtained. The marriage of very young boys is very common, and is certainly valid.
The ceremonies which precede and accompany a marriage are very numerous. By far the most important is that which consists in the bridegroom taking the bride’s hand and walking seven steps. Amongst Hindus generally the performance of this ceremony following upon a betrothal would be treated as conclusive evidence of a marriage, whilst the omission of it would, amongst orthodox Hindus, be almost conclusive that no marriage had yet taken place. But still any particular customs of the tribe or caste to which the parties belonged would always be considered, and it cannot be said that the completion or non-completion of this ceremony is universally conclusive as to the existence of a marriage. There may be communities of Hindus which require something more than this; there are certainly some which require something less, and others which require something altogether different. There are lower castes in some parts of India calling themselves Hindus in which the only ceremony accompanying a marriage is giving a feast to which the members of the two families are invited.
The marriage of Hindus is complete without consummation; and as girls are almost invariably married before the age of puberty, and sometimes long before, consummation is generally deferred, it may be, for several years. But all this time the parties are husband and wife, and if the husband dies the child becomes a widow. The condition of these child widows in India is certainly not an enviable one, for practically they can never hope to marry again. Whether the second marriage would be lawful was a disputed point in Hindu law until an act of the Indian Legislature (Act XV. of 1860) declared in favour of the opinion that the widow might remarry. But the social prejudice against remarriage is still very strong, and such a marriage rarely takes place. If the widow has inherited any property from her husband, she loses it by contracting a second marriage. There is no legal restraint upon the number of wives that a Hindu may marry, but polygamy is not practised so largely as is sometimes supposed.
Members of the three higher castes are forbidden to marry a woman of the same gotra as themselves. Literally a gotra means a cattle-yard, and the prohibition is considered to exclude marriage between all those who are descended from the same male ancestor through an uninterrupted line of males. This rule is said not to apply to Sudras. But there is another rule which applies to all Hindus, and prohibits the marriage of a man with a girl descended from his paternal or maternal ancestors within the sixth degree. The working out of the rule is a little peculiar, but the result is to give a rather wide rule of exclusion of both agnates and cognates. There is, however, this important exception to these rules of exclusion—that if a fit match cannot otherwise be procured, a man may marry a girl within the fifth degree on the father’s side and the third on the mother’s. Practically this reduces the limit of exclusion to that last stated, because no one but the parties themselves with whom the choice rested could say whether or no any other suitable wife was available to the husband.
A Hindu must also marry within his caste: a Brahmin must marry a Brahmin, a Rajput must marry a Rajput, and a Sudra must marry a Sudra. Whether there are any other representatives of the four original castes is very doubtful, and even the claim of the Rajputs to represent the military caste is disputed. Still the rule of prohibition is so far clear. But there are innumerable subdivisions of Hindus which are also called castes, and as a matter of fact these minor castes do not intermarry. How far such marriages would be lawful it is difficult to say. The matter is entirely one of custom. The ancient Hindu law furnishes no guide on the subject, because under the ancient law the intermarriages of persons of different castes, even the highest, though they were considered undesirable, were recognized as legal. Modern Hindus seem disposed to deny the validity of marriages between persons of different castes in either sense of the term.
Divorce, in the sense of a rupture of the marriage tie, is not known to the true Hindu law. But unchastity deprives a wife of all her rights except to a bare maintenance, and this without any legal proof. She cannot succeed her husband as his heir, and of course she cannot remarry. A little confusion has been caused by the fact that a Hindu husband sometimes goes through a private ceremony which is erroneously called a divorce. But this is only done in order more effectually to bar an unchaste wife from succeeding to his property. Some very low castes are, however, said to allow a husband to divorce his wife, and even to allow the divorced wife to marry again. The single case in which a Hindu marriage can be dissolved by a court of law is by a proceeding under Act XXI. of 1860, which was passed to meet the difficulties which arise when one of the parties to a Hindu marriage becomes a Christian. In this case, if the convert after deliberation during a prescribed time refuses to cohabit any longer with the other party, the court may declare the marriage tie to be dissolved, and a woman whose marriage has been thus dissolved is declared capable of marrying again.
An interesting chapter in the history of the modern development of Hindu law is that of the practice of what we call Suttee, though, properly speaking, the native term (Sati) denotes, not a practice, but a person, i.e. a faithful Suttee. wife. The practice in question is that of the widow burning herself with her husband when his body is burned after his death. This, according to Hindu ideas, is a laudable act of devotion on the part of the widow, and when Great Britain first began to administer the law in India it was not uncommon. The newcomers had not as yet taken upon themselves the responsibility of altering the law, but of course British officers did what they could to discourage the practice, and especially to prevent any pressure being put upon the widow to perform the sacrifice. They could also take advantage of any circumstance which would render the case an improper one for the performance of the sacrifice, as, for example, that compulsion had been put upon the widow, or that the burning did not take place with the body of the husband. But if the proceedings were according to Hindu notions regular, it was contrary to the principles on which the governor-general then acted to interfere, and British officers had frequently to stand by, and, by not interfering, to give a sort of sanction to the sacrifice. When later the servants of the East India company began to assume a more direct responsibility for the government of the country, many suggestions were made for legislative interference. But, acting on the salutary principle that it was unwise to interfere in any way with the religion of the people, the government abstained from doing so. In the meantime a considerable body of opinion against the practice had grown up amongst Hindus themselves, and at length the government thought it safe to interfere. By Regulation XVII. of 1829 widow-burning was declared to be a criminal offence. The measure produced no serious opposition. There was hardly a single prosecution under this Regulation; and from this time the practice of widow-burning has entirely disappeared from that part of India which is under British rule.
There are certain peculiarities in the relation of father and son in India which have given rise to the suggestion that there is no relationship between sonship and marriage, and that the notion of sonship in India is founded Father and son. entirely on that of ownership—ownership of the mother and a consequent ownership of the child. But the arguments by which this view is supported do not appear to be sufficient. The rights of a father over his son, and of a husband over his wife are, it is true, so far like the rights of ownership that both are in the nature of rights in rem—that is, they are available against any person who infringes them; but it is contrary to established usage to speak of rights over a free person as rights of ownership, and no one is prepared to say that the wife or child are slaves of the father. There is no reason for abandoning in India the ordinary view, that sonship depends on marital cohabitation between the father and mother. There are undoubtedly in certain special and exceptional cases methods of acquiring sons otherwise than by marital cohabitation. But these contrivances can only be resorted to when there is no son by marriage, and the fiction which, as we shall see, is resorted to to conceal the true nature of these contrivances, would be entirely meaningless, as would most of the rules which regulate them, if sonship in general was based entirely on ownership. There were at one time more contrivances than there are now for supplying the want of male issue by marriage. At one time a son could be begotten for a man who was dead by cohabitation of his widow with a member of his family or perhaps even with a stranger. This is generally looked upon as a survival of polyandry. But this practice, though alluded to in the Laws of Manu as still subsisting, is now entirely obsolete. So there was a custom at one time by which a father could appoint a daughter to raise up male issue for him. The head of the family could also, if he had no son born in wedlock, accept as his own any child born in his house whose mother was not known or not married. So he could accept as his own the son of his wife born before marriage, or the son of his concubine. In the last three cases he may have been, and probably was, himself the father. But none of these contrivances for procuring a son is now in use. The only contrivance now employed for procuring a son, in the absence of one born in wedlock, is by taking into the family the son of another man who is willing to part with him. This is called adoption. There are two kinds of adopted sons: one called dattaka and the other kritrima. The former is in use all over India; the latter only in Mithila. The following rules apply to the dattaka born of adoption: A man can only adopt who is without issue capable of inheriting his property, of performing the funeral ceremonies for himself, and of making the necessary offerings to his ancestors. A woman cannot adopt. But by the authority of her husband, and acting on his behalf, she may select a son and receive him into the family. A man can adopt a son without his wife’s assent; nevertheless, the son when adopted becomes the son of both parents.
Hindus consider it a grievous misfortune that the line of male descent should be broken. The due performance of the sacrificial offerings to the dead is thereby interrupted. Probably this explains the great latitude given in some parts of India to the widow to adopt a son on behalf of her husband in case he has died sonless. There is a text which says, “Nor let a woman give or accept a son unless with the assent of her lord.” But the lawyers of western India do not consider that any express permission to adopt is necessary, and take it for granted that she always has that permission. In Southern India, also, the widow may adopt without express permission, but the sapindas must give their sanction to make the adoption valid. Elsewhere the words have received their natural interpretation, namely, that the husband must in some way indicate his intention that his widow should have authority to adopt. The only person to whom an authority to adopt can be given is the wife or widow; and no widow can be compelled to exercise her power to adopt if she does not wish to do so. The father has absolute power to give away his son in adoption even without the consent of his wife. But her consent is generally asked and obtained before the son is given. After the father’s death the widow may give a son in adoption. The rule which in former times rendered it necessary that the nearest male sapinda should be adopted is obsolete, and the adoption of a stranger is valid, although nearer relatives otherwise suitable are in existence. A man may adopt any child whose mother he could have married if she had been single; if he could not have done so, then he cannot adopt her child. The reason given in the text is that the adopted son must bear the resemblance of a son. This recalls the dictum of the Roman law—adoptio naturam imitatur. The adopted son and the adopting father must be of the same caste. The period fixed for adoption by the three higher castes is before the ceremony of upandyana, or investiture of the child with the thread which these castes always wear over the left shoulder. For Sudras, who have no thread, the period is prior to the marriage of the child. There has been much difference of opinion as to whether an only son can be given and received in adoption. It is now settled that the texts which discountenance this adoption do not constitute a prohibition which the law will enforce.
There is sometimes a difficulty in ascertaining whether or no an adoption has actually taken place. There must be a final giving and receiving of the child in adoption, and for Sudras nothing more is required. For the twice-born classes it is not finally settled whether any religious ceremony is actually necessary in order to render the adoption valid. But some religious ceremony in almost all cases accompanies the adoption, so that the absence of any such ceremony will always raise a suspicion that the adoption, though it may have been contemplated and some steps taken towards it, had not been finally completed. If an adoption were in itself invalid, no acquiescence and no lapse of time could make it valid—just as an invalid marriage could not be similarly validated. But acquiescence by the family would be strong evidence of the validity of an adoption, and the rules of limitation by barring any suit in which the question could be raised might render the adoption practically unassailable.
The kritrima adoption is altogether different; although the adopted son performs the ceremonies for his adopting father’s family, and has a right to succeed, he is nevertheless not cut off from his own family. A person of any age may be adopted, and he must be old enough to be able to consent to the adoption, as without this consent it cannot take place. In this form a female can adopt, and no ceremonies are required.
Authorities.—Hindu Law: J. D. Mayne, Hindu Law (London, 1892); Colebrooke’s Treatises on the Hindu Law of Inheritance (Calcutta, 1810); Stokes’s Hindu Law Books (Madras, 1865); West and Buhler, A Digest of the Hindu Law of Inheritance (Bombay, 1878); Jogendra Nath Bhattacharya, A Commentary on Hindu Law (Calcutta, 1894); Rajkumar Sarvadhikari, Principles of the Hindu Law of Inheritance (Calcutta, 1882); Gooroodass Banerjee, The Hindu Law of Marriage and Stridhana (Calcutta, 1896); Jogendra Chundar, Principles of Hindu Law (Calcutta, 1906).
5. Mahommedan Law.—The Mahommedan law is always spoken of by Mahommedans as a sacred law, and as contained in the Koran. But the Koran itself could not have supplied the wants even of the comparatively rude tribes to whom it was first addressed. Still less has it proved sufficient to satisfy the requirements of successive generations. No doubt the great veneration which Mahommedans have for the Koran has caused them to be less progressive than members of other religious creeds. But in human affairs some change is inevitable, and the law of the Koran, like other sacred laws, has had to undergo the supplementary and transforming influence of custom and interpretation, though not of legislation. This direct method of changing the law by human agency, natural and simple as it appears to us, is scarcely acknowledged by Orientals even in the present day, except in the rare instances in which it has been forced upon them by Western authority. But besides custom and interpretation, another influence of a special kind has been brought to bear upon Mahommedan law. Besides those utterances which the Prophet himself announced as the inspired message of God, whatever he was supposed to have said and whatever he was supposed to have done have been relied upon as furnishing a rule for guidance. This tradition (sunna) is only to be accepted if it can be traced up to a narrator at first hand, though it would be rash to say that the chain of evidence is always very strong. Mahommedans also, in support of a legal rule for which there is no direct authority, resort to the argument from analogy (kiyas). The principle involved in a rule for which authority can be quoted is extended so as to cover other analogous cases. There have also been accepted amongst Mahommedans, as authoritative, certain opinions on points of law delivered by those who were actual companions of the Prophet; these opinions are spoken of collectively under the name of ijma. Some of these methods of extending and modifying the law have produced changes which it would be very difficult to reconcile with a strict adherence to the language of the Koran (see the Introduction to the Corps de Droit Ottoman, by George Young; Oxford, 1905). The Mahommedans of India generally are Sunnites of the Hanafite school. The two principal authorities on Mahommedan law to which recourse is had by the courts in India are the Hedaya and the Futwa Alumgiri. The Hedaya was translated into English by Mr Hamilton. The Futwa Alumgiri was compiled under the orders of the emperor Aurungzib Alumgir. It is a collection of the opinions of learned Mahommedans on points of law. It has not been translated, but it forms the basis of the Digest of Mahommedan Law compiled by Neil Baillie. The Mahommedan law, like the Hindu law, is a personal law. It is essentially so in its nature. Persons of any other religion are to a large extent outside its pale. And in India, in civil matters, its application has been expressly limited to Mahommedans. At one time endeavour was made to administer the Mahommedan criminal law as the general territorial law of India, but it had constantly to be amended, and it was at length abolished and the penal code substituted. To be a Mahommedan, and so to claim to be governed by the Mahommedan law, it is necessary to profess the Mahommedan faith.
All that we find on the subject of intestate succession in the Koran are certain directions as to the shares which certain members of the family are to take in the estate of their deceased relative. So far as they go, these are Intestate succession. rules of distribution—that is to say, they depend, not on consanguinity only, but on certain equitable considerations, by which rules founded on consanguinity are modified. But these latter rules, though nowhere laid down in the Koran, still play a large part in Mahommedan law. There can be no doubt that they represent the pre-existing Arabian custom, which it was not the intention of the Prophet to displace, but only to modify. The claimants under these rules take whatever is left after the specific shares assigned by the Koran to individual members of the family have been satisfied; if in any case there are no such shares, they take the whole. The Arabic term for this class of heirs is asabah, which literally means persons connected by a ligament. The term used by English writers is “residuaries,” but this description of them has the disadvantage that it entirely loses sight of the connexion on which the claim to succeed is based. They would be more correctly described as the “agnates” of the deceased, but the term “residuaries” is too firmly established to be displaced. Those persons who take a share of the property, under the specific rules laid down in the Koran, we call “sharers,” and this word has acquired a technical meaning; it is not used to describe those who can claim a portion of the estate in any other way. It is hardly likely that females, or relatives through females, had any claim to the succession under any Arabian custom, nor, except so far as they are made sharers, are they recognized by the Koran as having a title to succeed. The proper description of this class of persons is zavi-ul-arham, i.e. “uterine kindred,” and they have, in default of other heirs, established a claim to succeed. English writers have erroneously called them “distant kindred,” but distance has nothing to do with the matter.
There is no right of primogeniture under Mahommedan law; there is a general preference of males over females, and if males and females take together as residuaries by an express provision of the Koran, each male takes as much as two females. Females are also expressly forbidden by the Koran to take more than two-thirds of the property; but in the application of these two rules the shares of the mother and the wife are not included. No person can claim to take any portion of the property who traces his relationship to the deceased through a living person, but this rule does not apply to brothers and sisters whose mother is alive. If several persons all stand in the same degree of relationship to the deceased, they take equally, per caput and not per stirpem.
It will now be convenient to state the rules for finding which of the agnates take as residuaries of the deceased. These are, in ordinary circumstances, the male agnates only, and the rule in question depends upon a classification of the male agnates which is common in other parts of the world. Every family consisting of several generations of male agnates may be broken up into groups, each of which has a separate common ancestor of its own. Thus, suppose A to be the person from whom the descent is to be traced. A belongs to a large group of persons, all of whom are males descended from a common ancestor D. But A and his or her own male descendants form a smaller group, which we may call the group A. This is the first class of male agnates of A. Then suppose A to be the son or daughter of B, excluding those who are descendants of A, and as such included in the first class, the remaining male descendants of B will form the second class of male agnates of A. In like manner we get a third class of male agnates of A who are descendants of C, excluding those who are descendants of A or B; and a fourth class of male agnates of A who are descendants of D, excluding those who are descendants of A, B, or C. This classification can obviously be carried through as many generations as we please. Mahommedan lawyers adopt this classification with only one difference. Between the first and second classes they interpose a class consisting entirely of the direct male ancestors, which they call the “root,” so that the male descendants of A (the person whose heirs are in question) would be the first class of residuaries. B, C, D, &c., would be the second class of residuaries; the male descendants of B, other than the descendants of A, would be the third class of residuaries; the male descendants of C, other than the descendants of B and A, would be the fourth class of residuaries, and so on. In order to find the residuaries who are to succeed, we have only to take the classes in their order, and of the highest class which is represented to select the nearest to the deceased. If there are several who are equidistant, they will take equally per caput.
The sharers are, of course, those to whom a share is assigned by the Koran. They are (1) the father, (2) lineal male ancestors, whom Mahommedans call the “true grandfathers,” (3) uterine half-brothers, i.e. the half-brothers by the mother, (4) daughters, (5) daughters of a son, or other direct male descendant, whom we call daughters of a son how low and soever, (6) the mother, (7) true grandmothers, i.e. female ancestors into whose line no male except a lineal male ancestor enters, (8) full sisters, (9) consanguine half-sisters, i.e. half-sisters by the father, (10) uterine half-sisters, (11) the husband, (12) the wives. The right to a share and the amount of it depends upon the state of the family. Under Mahommedan law not only, as elsewhere, the nearer relative excludes the more remote, but there are special rules of total or partial exclusion arising out of the equitable considerations upon which all rules of distribution are based.
These rules are best shown by taking the case of each member of the family in turn, and at the same time it will be useful to explain the general position of each member. First, the sons. They take no share, but they are first in the first class of residuaries, and their position is a very strong one; they exclude entirely sisters and daughters from a share, and they reduce considerably the shares of the husband, the widows, and the mother. The position of the other male descendants is very similar to that of the sons. They are not sharers; they are residuaries of the first class, and will take as such if the intermediate persons are dead. They reduce the shares of some of the sharers, but not to the same extent as the sons. The father is a residuary of the second class, and the first in that class. But he is also a sharer, and as such is entitled to a share of one-sixth. He can take in both capacities. The father’s father is also a residuary of the second class, and he is a sharer, entitled to a share of one-sixth, but of course he cannot take either as sharer or residuary if the father is alive. The position of any true grandfather is analogous. An only daughter takes as sharer one-half of the property, two or more daughters take one-third between them. But sons exclude daughters from a share, and they would get nothing. Naturally this was considered unjust, and a remedy has been found by making the daughters what are called “residuaries in right of their brothers,” each daughter taking half of what a son takes. The mother gets a share of one-sixth when there is a child of the deceased, or a child of any son how low and soever; also when there are two or more brothers or sisters. In any other case her share is one-third. If, however, the wife, or the husband (as the case may be), and the father are alive, the share of the mother is only one-third of what remains after deducting the share of the husband or the wife. The brother is never a sharer. He is a residuary of the third class, and he excludes some sharers. The daughters of a son how low and soever get a share of two-thirds between them if there are several; if there is only one she gets one-half. But the daughters of a son are excluded by any direct male descendant who is nearer to the deceased than themselves, or at the same distance from him. If, however, they are excluded by a person who is at the same distance from the deceased as themselves, Mahommedan lawyers again say that they come in as residuaries in right of that person, each female as usual taking half as much as each male. Of course the daughters of a son may also be excluded by the daughters having exhausted the two-thirds allotted to females. A single sister takes a share of one-half; several sisters take two-thirds between them. Sisters are excluded from a share by any residuary of the first class, and their own brothers also exclude them, but in the latter case they take as residuaries in right of their brothers, each sister taking half what a brother takes. So, again, the sisters may be excluded from a share by the daughters or daughters of sons having exhausted the two-thirds allotted to females, and the residue would go to the nearest male agnate—that is, the uncle or the nephew of the deceased, or some more distant relative. To prevent this Mahommedan lawyers say that in this case the sisters are residuaries, basing their assertion upon a somewhat vague tradition. The share of the husband in the property of the wife is one-fourth if there are surviving children, one-half if there are none. The share of the widow in the property of her deceased husband is one-eighth if there are surviving children, one-fourth if there are not. The nearest true grandmother takes a share of one-sixth. If there are several equidistant, they take one-sixth between them. The uterine half-brothers take a share of one-third when there is only one, but they are excluded by any direct descendant and by any direct male ascendant. Uterine half-sisters are in the same position as uterine half-brothers. Consanguine half-brothers are residuaries of the same class as brothers, but only take in default of full brothers. Consanguine half-sisters take a share of two-thirds, or if there is only one she takes a share of one-half. But if there is a full sister also, the full sister takes one-half, and the consanguine sisters one-sixth between them. The consanguine half-sisters, like the full sisters, are excluded from a share by the children and the father of the deceased, and also by full brothers and consanguine brothers; but in the last case they come in again as residuaries, taking half what a brother takes.
The sharers must of course, unless excluded, be all satisfied before anything is taken by the residuaries. But the sharers may not only exhaust the property; there may not be enough to satisfy all the claimants. Thus, if a man died leaving a wife, a mother and two daughters, the shares are one-fourth, one-sixth and two-thirds, and the sum of the shares being greater than unity, they cannot all be satisfied. The difficulty is met by decreasing the shares rateably, in other words, by increasing the common denominator of the fractions so as to produce unity; hence the process is called the “increase.” The converse case arises when the shares of the sharers do not exhaust the property, but there are no residuaries to take what remains. It has been doubted whether the residue does not fall to the government as bona vacantia. But it is now settled that the surplus is to be divided rateably amongst the sharers in proportion to their shares. The process is called the “return.” The husband and the wife are excluded from the benefit of the return. If there are no sharers, the whole estate will go to the residuaries. If there are neither sharers nor residuaries, it will go to the (so-called) distant kindred. Their claim is strong on equitable grounds, as some of them are very near relations; such, for example, as a daughter’s children or a sister’s children. Nevertheless their claim has been doubted, and it must be admitted that there is no very clear ground upon which It can be based. They are not mentioned as sharers in the Koran, and it is not very clear how, as cognates, they could have been recognized by any ancient Arabian custom. However, their claim is now well established, and, in default of both sharers and residuaries, they succeed on a plan somewhat resembling that on which male agnates are classified as residuaries. If all the claimants fail the property goes to the government, but there is one peculiar case. Supposing a man dies leaving a widow, or a woman dies leaving a husband, and no other relative. There is then a residue and no one whatever to take it, as the husband and wife are excluded from the return. Strictly speaking, it would fall to the government as bona vacantia, but the claim is never made, and would now be considered as obsolete, the husband or wife being allowed to take the property.
Under Mahommedan law there are certain grounds upon which a person who would otherwise succeed as heir to a deceased person would be disqualified. These grounds are—(1) that the claimant slew the deceased by an act which, under Mahommedan law, would entail expiation or retaliation, and this would include homicide by misadventure; (2) that the claimant is a slave; (3) that he is an infidel, i.e. not of the Mahommedan faith. The second impediment cannot now have any application in India; the third has been removed by Act 21 of 1850. There is a rule of Mahommedan law that if two persons die in circumstances which render it impossible to determine which died first, as, for example, if both went down in the same ship, for the purposes of succession it is to be assumed that both died simultaneously.
Mahommedan lawyers appear always to have recognized the validity of wills, and they are said to be recognized by a passage in the Koran. But the power of testamentary disposition is restricted within very narrow limits. Testamentary succession. It only extends to one-third of the property after the payment of debts and funeral expenses. There is no hint of this restriction in the Koran, and it rests upon tradition. If the one-third has been exceeded the legacies must be reduced rateably. The heirs, however, by assenting to the legacies, may render them valid even though they exceed the prescribed amount. There is no restriction as to the form of making a will; it may be either oral or written. A legacy cannot be given to an heir. Mahommedan law contains some very simple and wise provisions for preventing the reckless and often unjust dispositions of property which persons are apt to make upon the approach of death. A man who is “sick,” that is, who is suffering from illness which ends in death, can only give away one-third of his property; and if he has also made a will containing legacies, the gifts and the legacies must be added together in the computation of the disposable one-third. So long as slaves had a money value, the value of the slaves liberated by a man on his deathbed was also included, which reminds us of the Lex Furia Caninia of the Roman law. Another transaction by which the restriction on the testamentary power might be eluded is that called mohabat. By this is meant a transaction in the form of a sale, but which, from the inadequacy of the price named, is obviously intended as a gift. If such a transaction is entered into during “sickness,” the loss to the estate would have to be reckoned in computing the disposable one-third. But the mohabat transaction takes precedence of legacies. Another obvious mode of eluding the restriction on the testamentary power is the acknowledgment by a man on his deathbed of a fictitious debt; and it would seem that such acknowledgments ought to have been put under restriction. But Mahommedans, like other Orientals, have a useful, though possibly a superstitious, dread of leaving the debts of a deceased person unpaid, and it is this, no doubt, which has prevented their questioning the deathbed acknowledgment of a debt, even though there is every reason to believe it to be fictitious. All that has been done is to prescribe that debts of health should be paid before debts of sickness, and that debts cannot be acknowledged by a sick man in favour of an heir.
When a Mahommedan dies, the funeral expenses and the creditors must first be paid; then the legatees, then the claims of the sharers, and, lastly, those of the residuaries; or, if there are neither sharers nor residuaries, those Administration. of the (so-called) distant kindred. The administration of the estate need present no difficulties if there are no disputes, and if there is some one empowered to take possession of the property, to get in the debts, to satisfy the creditors, and distribute the assets amongst the various claimants; and such a person may be appointed by a Mahommedan in his will, who will perform these duties. He is called a wasi, and he is in a position very similar to an executor under English law. But if there is no wasi, even if there are no disputes, there may be a good deal of trouble. It would have been in accordance with the spirit of Mahommedan law, and with general principles of equity, if an officer of the courts established under British rule had been regularly empowered to take possession of the property, and to take such measures as were necessary to ensure all the claimants being satisfied in their proper order. But this view of their powers has not been taken by the courts in India; recently, however, they have been enabled by legislation to grant the power of administering the estate to a single person.
There is scarcely any part of Europe or Asia where the creation of fictitious relationships is altogether unknown. In many cases the object of the creation is simply to obtain an heir. This is the object of adoption amongst modern Fictitious relationships. Hindus, and it is this, no doubt, which has led some persons to speak of Hindu adoption as a rudimentary will. But adoption, as such, has never obtained a footing in Mahommedan law. The fictitious relationships which that law recognizes are based upon a different idea. There was in early times a widespread notion that every man must belong to some family either as a freeman or a slave. The family to which a slave belongs is always that of his owner, and that of a freeman is generally indicated by his birth. But a liberated slave has no family, at least no recognized family; and as he cannot stand alone, it was necessary to attach him to some family. Now, just as in Roman law the freedman became a member of his master’s family under the relationship of patronus and cliens, so in Mahommedan law a liberated slave becomes a member of the master’s family under the relationship called mawalat. The object, of course, was to make the master’s family liable for the consequences of the wrongful acts of the freed slave. As a compensation for the liability undertaken by the master’s family, in default of residuaries of the slave’s own blood (who can only be his own direct descendants), the master’s family are entitled to succeed as what are called “residuaries for special cause.” Of course the relationship of master and slave cannot now be created, and it is scarcely probable that any case of inheritance could arise in which it came into question. The relationship of mawalat may, under Mahommedan law, also be created in a case where a freeman is converted to Islam. From a Mahommedan point of view he then stands alone, and would be required to attach himself to some Mahommedan family. The form of the transaction exactly indicates the nature of it. The party wishing to attach himself says to the person ready to receive him, “Thou art my kinsman, and shalt be my successor after my death, paying for me any fine or ransom to which I may be liable.” In this case also the family of the person who receives the convert is entitled, in default of other residuaries, to succeed to him as “residuaries for special cause.” But this transaction can have no meaning under English law, which does not recognize the joint responsibility of the family, and it is therefore also obsolete. In the case of mawalat the rights of the persons concerned are not reciprocal. The person received gains no right of inheritance in the family into which he enters, and incurs no responsibility for their acts. An important part may still be played in Mahommedan law by the creation of relationships by acknowledgment. Any such relationship may be created, provided that the parentage of the person acknowledged is unknown; a person of known parentage cannot be acknowledged. The age, sex and condition of the person acknowledged must also be such that the relationship is not an impossible one; for, as was said in the Roman law, fictio naturam imitatur. The relationship thus constituted is, in the ease of a father, mother, child, or wife, complete, and must be treated for all purposes as having a real existence. But in any other case the acknowledgment, although good as between the parties thereto, has no effect upon the rights of other parties. The acknowledgment which we have just been considering contemplates the possibility at any rate, and in most cases the certainty, that the relationship is entirely fictitious, and has no connexion with any rule of evidence in whatever sense the term is understood. But there is a rule of Mahommedan law that, in cases where the paternity of a child is in dispute, the acknowledgment of the child by the father is conclusive. Whether this would now be maintained in face of the Evidence Act 1870, which deals with cases of conclusive evidence, and expressly repeals all previously existing rules of evidence, may be doubtful.
Marriage is a transaction based upon consent between a man and a woman, or between persons entitled to represent them. The result of the transaction is that certain family relationships involving legal rights and duties Marriage. are created by the law, and these are not wholly under the control of the parties. But as to some of them, to some extent they may be regulated by agreement, and it is customary amongst Mahommedans at the time of a marriage to come to such an agreement. The only condition necessary to the constituting of a valid marriage between persons of full age is the consent of the parties. It is, however, the practice to conclude the transaction in the presence of two males, or one male and two female witnesses; and the omission of this formality would always throw a doubt upon the intention of the parties finally to conclude a marriage. It is even said that the absence of such witnesses would justify a judge in annulling the marriage. Minors of either sex may be given in marriage by their guardian, and the transaction will be irrevocable if the guardian be the father or any direct male ascendant. In any other case the marriage may be repudiated when the minor arrives at the age of puberty, but the repudiation is not effectual until confirmed by a judge of the civil court. A marriage may be conducted through agents. A woman can have only one husband; a man can have four wives; if he married a fifth the marriage would be annulled by a judge on the application of the woman. Mahommedans have a table of prohibited degrees within which parties cannot marry not very dissimilar to that in force in Great Britain. Nor can a man be married at the same time to two women nearly related to each other, as to two sisters. It is also considered that if a woman take a child to nurse she contracts a sort of maternity towards it, and that if a boy and girl are nursed by the same woman they become brother and sister, and, in a general way, it is said “that whatever is prohibited in consanguinity is prohibited in fosterage”; but it is doubtful whether the law goes so far. The widow, or a divorced woman, is not allowed to marry again during her iddut. This is a period of chastity which a woman is bound to observe in order to avoid confusion of issue. If she is pregnant it lasts until the child is born; if not, then in case of divorce it lasts through three periods of menstruation; if she is a widow it lasts for four months and ten days. A Mahommedan man cannot marry an idolatress, but Jews and Christians are not thereby excluded, because, although infidels, they are not idolatresses. A woman is forbidden by Mahommedan law to marry any one who is not a Mahommedan; but if the marriage took place in conformity with the Act of 1872 it might be valid, if it amounted to a repudiation by the woman of her Mahommedanism. It is important to remember, when considering the validity of a Mahommedan marriage, that a distinction is drawn between marriages which are simply void (batil) and those which can only be annulled by judicial decision (farid), for such a decision has no retrospective effect, so that the children already born are legitimate; and if no step is taken to obtain such a decision during the existence of the marriage, it cannot be questioned afterwards. What marriages are absolutely void, and what are only capable of being declared void, is not very clearly settled, but the evident leaning of Mahommedan law is against absolute invalidity, and there is strong authority for the opinion that no marriages are absolutely void except a marriage by a woman who has a husband living and such as are declared to be incestuous.
A Mahommedan has the absolute right to divorce his wife whenever he pleases without assigning any reason whatever for doing so. There are, however, very strong social reasons which have considerable influence in restraining Divorce. the arbitrary exercise of the power. The power to divorce remains notwithstanding any formal promise by the husband not to exercise it, and it is even said that a divorce pronounced in a state of intoxication, or by a slip of the tongue, or under coercion, is valid. The divorce can, however, be revoked by the husband, but not after it has been three times pronounced, or after the iddut has been passed by the woman. Nor can the husband remarry his divorced wife unless she has been again married, and has been again divorced or become a widow, and the intermediate marriage must have been consummated. The power to divorce a wife may be entrusted by the husband to an agent acting on his behalf, and this contrivance is sometimes made use of to enable a woman’s friends to rid her of her husband if he ill-treats her. The husband may even empower the wife to divorce herself. If the husband or the wife should happen to die whilst the divorce is still revocable, he or she will inherit; and even a triple repudiation pronounced during “sickness,” that is death-sickness, will not deprive the woman of her inheritance if the iddut has not been passed. Of course there is nothing to prevent the husband and the wife from agreeing to a divorce, and to the terms on which it is to take place, and such an arrangement is very common. The treatment of the wife by the husband is not a ground upon which the marriage can be dissolved, but the impotence of the husband is a ground of dissolution. The courts in India consider that they have the power under Mahommedan law to grant a decree for the restitution of conjugal rights.
Dower in Mahommedan law is in the nature of a gift from the husband to the wife on the marriage, like the donatio propter nuptias of the Roman law, or the morgengabe of Teutonic nations. It may be either “prompt,” that Dower. is, payable at once, or the payment of it may be deferred, or it may be partly the one and partly the other. The amount of the dower and the time of payment ought to be settled by agreement before the marriage takes place; if this is not done there is some trouble in ascertaining the rights of the parties. It seems clear that a woman is entitled as a matter of right to what is called a “proper dower” if the dower is payable at once the woman may, before consummation, refuse herself to her husband unless it is paid; whether she can do so after consummation is doubtful. If the husband capriciously repudiates the wife before consummation, or the wife before consummation repudiates the husband for his misconduct, then half the dower agreed on must be paid. If it is her misconduct which has caused the repudiation, she is not entitled to anything. Deferred dower becomes payable on the dissolution of the marriage either by death or by divorce. Probably a judge, when called upon to dissolve or annul a marriage, could make reasonable stipulations as to the dower. The dower is the wife’s own property, and, as the wife is entirely independent of the husband in regard to her property, she can sue him or his representatives for the dower like any other creditor. Mahommedans generally before marriage enter into a formal contract which regulates not only the dower, but various other matters under the control of the parties, such as the visits the wife is to pay or receive, the amount of liberty which she is to have and so forth.
The right of pre-emption under Mahommedan law is the right of a third person, in certain circumstances, to step in and take the place of a buyer, at the same price and on the same conditions as the buyer has purchased. Pre-emption. It applies only to the purchase of real property, and it can only be exercised upon one of the three following grounds: (1) That the claimant is owner of property contiguous to that sold; (2) that he is a co-sharer in the property of which a share is being sold; (3) that he is a participator in some right over the property, such, for example, as a right of way over it. The claimant must announce his claim as soon as he hears of the sale, and he must follow up this announcement by a further claim in the presence of witnesses and of the seller, or, if possession has been transferred, of the buyer.
Mahommedan law, so far as it is administered by the courts of British India for Sunnites of the Hanafite school—that is, for the great bulk of Mahommedans—has attained a fair degree of precision, owing to the care bestowed on their decisions by the judges of those courts, and the assistance derived from Mahommedan lawyers. But much difficulty is experienced as soon as we come to deal with Mahommedans of any other description. No doubt in India any clearly-established custom prevalent amongst a well-defined body of persons would be recognized, or any rule of law founded upon texts which they accepted as authoritative. But it is not always easy to determine when these conditions have been satisfied. And to allow Mahommedans to set up a standard of rights and duties different from that of the bulk of their correligionists without this proof would lead not only to confusion but injustice. There is the further difficulty that Mahommedan law, as applied to any Mahommedans except those of the Hanafite school, has as yet been comparatively little studied by modern lawyers, so that Shiah System. very little that is certain can be said about it. There is, however, a considerable body of Shiites in India whose legal system undoubtedly differs in some material particulars from that of the Sunnites. The Mahommedans of Oudh are generally Shiites, and Shiah families, mostly of Persian descent, are to be found in other parts of India. The following points seem clear. A marriage which the parties agree shall last for a fixed time, even for a few hours only, is a valid marriage, and at the expiration of the time agreed on the marriage ceases to exist. The relatives of the deceased, whether male or female, and whether tracing their connexion through males or females, may be sharers or residuaries. Both as sharers and residuaries the children can claim to take the place of their parents in the succession upon the principle of what we call representation. If there are parents or descendants of the deceased, and the sharers do not exhaust the property, the surplus is distributed amongst the sharers of that class in proportion to their shares. If the property is not sufficient to pay in full the shares of all the sharers, the shares do not abate rateably; e.g. as between daughters and the parents, or the husband, or the wife of the deceased the whole deduction is made from the daughters’ share.
Authorities.—(Mahommedan Law), Neil Baillie, Digest of Mahommedan Law (London, 1865); Sir R. K. Wilson, Introduction to the Study of Mahommedan Law (London, 1894); Digest of Anglo-Mahommedan Law (London, 1895); Charles Hamilton, The Hedaya translated (London, 1791); Syed Ameer Ali, Lectures on Mahommedan Law (2 vols., Calcutta, 1891, 1894); Mahomed Yusoof, Tagore Law Lectures (Calcutta 1895); Alfred v. Kremer, Culturgeschichte des Orients (2 vols., Vienna, 1875).
- (W. Ma.)