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440
INDIAN LAW

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