Encyclopaedia Britannica, 11th Edition, "Independence, Declaration of" to "Indo-European Languages" / Volume 14, Slice 4

by Various

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.