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.