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441
INDIAN LAW

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