The Hindu Law.
For every person in the world whose rule of civil conduct is based upon the English system of jurisprudence there are two others to whom Hindu law is both binding by political authority and the rule of conscience.
The student of law and world politics will note with interest two impressive facts concerning Hindu jurisprudence in India. The first is that until the accession of British rule in that country the Hindu law was not law in the sense in which the term is understood by lawyers. The second fact is that the acknowledged jurisconsults and commentators upon the Hindu law of to-day are not Hindus, but British and Anglo-Indian jurists.
Prof. Golapchandra Sarkar, in his admirable treatise, says: “The administration of the Hindu law by the English judges shows forth in clear light the administrative capacity, the indomitable energy, the scrupulous care and the strong common sense of the English nation.”
In treating of the marriage and divorce laws of over two hundred and twenty-five millions of human beings who are Hindus by race and religion, the first question to be answered is: What is Hindu law? Hindu law is the whole body of rules regulating the life of a Hindu in relation to his civil conduct and the performance of his religious duties grouped together under the general name ofDharma Sastra, or religious ordinances.
The ultimate source of this wonderful system is the Veda, but the Hindu also accepts an immemorial custom as transcendant law, contendingthat such acceptance is approved in the sacred scripture and in the codes of divine legislators.
In the Mahabharat we read: “Reasoning is not reliable; the Vedas differ from one another; and there is no sage whose doctrine can be safely accepted; the true rule of law is not easy to be known; the ways of venerable persons are, therefore, the best to follow.”
The Hindus have for centuries been governed by their own laws, which they regard not as the edicts of a political sovereign, nor as the enactments of a human legislature, but as the immutable commands of the Supreme Being of the universe. With such reverence have these laws been regarded that no Hindu king of whom we have any historical record ever dared to repeal, alter or modify one of them. For the past century such progress as Hindu law has made is due entirely to the action of the British courts in India.
As we called attention to in the chapter on Mohammedan law, there are four distinct systems of jurisprudence in India, all in full operation and effect. Two of these systems, the English law created by the British Parliament and Anglo-Indian law created by the legislative councils, are territorial in jurisdiction, while the others, namely, the Hindu law and the Mohammedan law, are purely personal. That is to say, the Hindu and Mohammedan systems of law apply respectively to Hindus and Mohammedans, and to no one else.
At the beginning of British rule in India the government of the East India Company gave the native inhabitants of the country the privilege of being governed by their own laws in matters relating to marriage, inheritance and religious usages.
In the regulations promulgated by Warren Hastings in 1772, and since in the various civilacts and charters establishing the law courts, the rule is expressed that in cases relating to marriage, inheritance, succession and religious usages the Hindu law shall apply to the Hindus.
The Privy Council decided in the leading case of Abraham v. Abraham that under the regulations and acts a Hindu is a man by both birth and religion a Hindu.
In the case of Raj Bahadur v. Bishen Dayal, Mr. Justice Straight said: “If we are correct in our view that the status of a Hindu or Mohammedan under the first paragraph of Section 24, Act VI., of 1871, to have the Hindu law made the ‘rule of decision,’ depends upon his being an orthodox believer in the Hindu or Mohammedan religion, the mere circumstance that he may call himself or be termed by others a Hindu or Mohammedan, as the case may be, is not enough.”
Caste.—The idea of caste or class distinction so completely permeates every religious and secular institution of India that one cannot understand Hindu law without having in mind the principal features of this social system.
The Vedas, upon which the whole structure of Hindu religion and ethics professes to be based, give no countenance to the present regulations of caste.
The Sanscrit word for caste isverna, meaning colour, and this leads us to the true origin of caste distinctions. Theverna, or colour, of the light-complexioned Aryan invaders who entered India from the Northwest and thevernaof the dark-skinned aborigines whom they subjugated established the first distinctions of caste.
There are four principal castes to-day among the Hindus, namely:
1.Brahmin, or priest caste.
2.Kshatriya, or warrior caste.
3.Vaisya, or merchant caste.
4.Sudra, or servant caste.
A fifth class, calledPariahs, are of no caste, and are practically outside the law.
The first three upper classes or castes are also called “twice-born” men, because they are supposed to be regenerated or “born in the Veda.”
So, generally, are the distinctions of caste recognized that Pope Gregory XV. found it advisable to publish a bull sanctioning caste regulations in the Christian churches of India.
The Hindus attach great importance to the marriage. It is regarded by them as one of the tensankars, or sacraments, necessary for the regeneration of men of the twice-born classes, and the only sacrament for women andSudras.
The Veda says: “A Brahmin immediately upon being born is produced a debtor in three obligations: to the holy saints for the practice of religious duties; to the gods for the performance of sacrifice; to his forefathers for offspring.”
Manu ordains that “after a man has read the Vedas in the form prescribed by law, has legally begotten a son and has performed sacrifices to the best of his power, he has paid his three debts and may then apply his heart to eternal bliss.”
The Hindus hold the marriage relation in such respect that the question of the validity of a marriage is rarely submitted to the courts for judicial determination.
The law of the Catholic Church treats marriage as a sacramental contract dissoluble only by death, but the Hindu law goes further by declaring against the remarriage of widows.
This rule of Hindu has been legislated upon by Act XV. of 1856, which makes a Hindu widow eligible for a new marriage, but the marriage ofa widow has never been the practice among Hindus.
Mann says: “A widow who from a wish to bear children slights her deceased husband by marrying again brings a disgrace on herself here below and shall be excluded from the seat of her lord.”
Polygamy, or plurality of wives, is permitted by the Hindu law, but is rarely practiced.
Polyandry, or plurality of husbands, is contrary both to the Hindu law and the provisions of the Indian Penal Code.
The three higher castes are permitted to intermarry with the caste next below their own, the issue taking the lower caste or sometimes forming a new caste.
In many ways the theoretical inferiority of theSudraabsolves him from the restraints which the letter of the law lays on the three higher castes.
Age for Marriage.—In the Hindu law want of age, though a disqualification for other purposes, does not render a person incompetent to marry.
Ordinarily the lowest age is eight years for females, but a girl may be married before that age if a suitable husband is procured for her. If none of the persons who ought to give a girl in marriage do so before she completes her eleventh year she may choose a husband for herself.
A girl must be given in marriage before she attains puberty. The reason for marrying off a girl before she reaches the age of puberty is that the marriage should be free from sexual desire.
Parental Consent.—The Hindu law vests the girl absolutely in her parents and guardians, by whom the contract of her marriage is made, and her consent or absence of consent is not material. The consent of the parents is required for themarriage of minors—that is, persons under fifteen years of age. The parties authorized to give or withhold such consent are the father, the paternal grandfather, the brother, asakulyaor kinsman in succession.
The want of parental consent, or the consent of the person standing inloco parentis, does not invalidate a marriage otherwise legally contracted.
Impediments.—Disqualifications or impediments are absolute or relative. A disqualification which renders a party incompetent to marry any person is absolute, while one which simply renders a party incompetent to a particular person is termed relative.
A woman with a husband living is absolutely disqualified from contracting a new marriage.
Idiots and lunatics are disqualified for civil purposes only, although the Hindu law permits a wife to desert or disobey an insane husband.
Deaf and dumb persons, or those afflicted with incurable or loathsome diseases, are competent to marry, but cannot insist upon conjugal rights. Among the three highest castes (the twice-born) impotency is not an impediment to marriage, but for those of the lowest caste (Sudras) it is a disqualification.
A twice-born husband who was impotent was for centuries permitted to appoint a kinsman to beget issue by his wife, but this is now forbidden.
The female must be younger than her husband and of the same caste.
A girl whose elder sister is unmarried, or a man whose elder brother is unmarried, is not eligible for marriage.
Marriage Ceremonies.—Ceremonies of some sort, religious or secular, are requisite to the concluding of a valid marriage. The ceremonymay be that of “walking seven steps” or merely the exchange of a garland of flowers. The question as to whether or not a marriage is ceremonially complete depends largely upon what ceremonies are customary among the parties concerned.
Consummation is not necessary to complete a marriage. In thousands of cases girls under ten years of age have been married to males older than themselves who have died before their wives were old enough for the consummation of marriage. Such a situation has brought about the sad plight of the tens of thousands of child widows in India. If a girl of eight years of age is ceremoniously married to a man and immediately thereafter returns to her father’s home to await the time when she shall be old enough to assume conjugal duties, she is from the moment the ceremony of marriage is completed a married woman, and if her husband dies the next day she is an eight-year-old widow whom no orthodox Hindu will marry.
When the British first came to India it was a general practice for widows to voluntarily submit to be burned alive with the corpses of their deceased husbands. This savage practice was called asuttee, and by it millions of child and adult widows were burned to death. By a provision of the Indian Penal Code such a death is treated as a suicide, and all who participate in the offence are holden for homicide. We are glad to record that the British Government has so thoroughly enforced the law in this respect thatsutteeshave been entirely abandoned by the Hindus.
Consanguinity and Affinity.—Baudhayana says: “He who inadvertently marries a girl sprungfrom the same original stock with himself must support her as a mother.”
Marriage between ascendants and descendants is unlawful.
Marriage is also prohibited between a twice-born man and a woman who is of the samegotra, or primitive stock.
The woman must not be the daughter of one who is of the samegotrawith the bridegroom’s father or maternal grandfather. Neither must she be asapindaof the bridegroom’s father or maternal grandfather.Sapindain the Hindu law means descended from ancestors within the sixth degree. That is, from persons in the ascending line within the seventh degree from the intending husband. Thesapindarelationship ceases after the fifth and seventh degrees from the father and mother respectively.
ASudrahas nogotraof his own.
Divorce.—Divorce in the ordinary sense is unknown to the Hindu law. The Hindus contend that even death does not dissolve the bond of marriage.
The single case in which a dissolution of a Hindu marriage can be granted by a court of law is under Act XXI. of 1860, which was enacted to meet the complications which arise when one of the spouses becomes a Christian. If the convert, after deliberation for a prescribed time, refuses to cohabit further with the other spouse, the court may upon petition declare the marriage to be dissolved, and either party is free to marry again.
There are some low castes in the Bombay Presidency, in Assam and elsewhere, among whom the practice of irregular divorce and remarriage of the parties prevails. The causes for divorce are mutual consent of the parties and ill-treatment.These divorces, although permitted by custom, are not recognized by the courts.
Restitution of Conjugal Rights.—A Hindu husband or wife can maintain a lawsuit to obtain a judicial separation against a deserting spouse for restitution of conjugal rights, but a Hindu convert to Christianity cannot obtain such a decree if his wife remains a Hindu.
The Chinese Empire.
A treatise on the marriage and divorce laws of the world would be incomplete without a chapter dealing with the law of the most compact nationality in history.
Chinese law is the growth of many centuries and is based on immemorial custom, but with all its antiquity and wealth of precedent, it has not yet passed the system of exacting testimony from witnesses by physical torture.
The first evidence of civil law to be found in Chinese history or tradition is the recognition and regulation of the status of marriage. Its fundamental principle is parental authority.
Though in a sense systematic, the laws of China are not as yet in a concentrated or scientific form. Under the present dynasty the collection of laws which is applied by the courts is calledTa Ch’ing Lii Li.
Two things are to be said in favour of the laws of China—the first being that every Chinese is within the law, and that the person is considered of more importance than property.
Marriage.—A Chinese is not permitted to have more than one wife. He may, however, in addition, keep concubines, or “secondary wives.” Both wives and concubines have a legal status.
The wife is considered to be a relative of all her husband’s family, but a concubine is not so considered. It is an offence for a man to degrade his wife to the level of a concubine, or to elevate a concubine to the level of his wife.
The consent of the parties, which is the firstrequisite of a valid marriage in Christendom, is legally of no consequence in China. It is the consent of the parents of the respective parties which is material and necessary.
The consent of the father of the woman is sufficient, and if he is dead then the mother may give the necessary consent.
The preliminary stages of a Chinese marriage are elaborately formal. It is the duty of the families of the intended bride and bridegroom to ascertain whether or not the parties have the capacity to conclude marriage. Certain introductions and exchange of social courtesies follow. If everything appears satisfactory the parties acting on behalf of the intended bride send a note of “eight characters” to the parties acting in behalf of the prospective bridegroom, which note is practically a proposal of marriage. If the terms of the proposed marriage are agreed upon the next thing is for the representatives of the parties to draft and execute the articles of marriage.
The courts will hold it to be a marriage if the betrothal is regular, even if there is no consummation.
It is essential to a legal marriage that the written consent of the woman be obtained; it is not sufficient that the woman herself gives free consent.
Fraud makes the marriage a nullity. In his book, “Notes and Commentaries on Chinese Criminal Law,” Mr. Ernest Alabaster tells of the case of “Mrs. Wang.” It appears that an old reprobate, knowing that the girl’s parents would refuse him because of his ugliness of face and character, sent a handsome young nephew to represent him in the marriage negotiations. The impersonation brought about the signing of the contract, and theold man secured possession of the bride. Soon after the wedding he ill-treated his young wife and one night she strangled him. The court decided that the woman had committed an unjustifiable homicide and that the victim was not her husband.
Impediments.—Intermarriage is forbidden between ascendants and descendants and between kinsmen by consanguinity or affinity up to the fourth degree.
Marriage is also forbidden between persons having the sameHsing, or surname.
A free person cannot contract a valid marriage with a slave.
A mother and daughter must not marry father and son.
Marriage is absolutely forbidden to a Buddhist or Taoist priest.
An official must not marry a wife or buy a concubine within his jurisdiction.
It is unlawful for a person of official rank to take as his secondary wife or concubine an actress, singing woman or a prostitute.
No one must marry a female fugitive from justice.
Marriage of a deceased brother’s widow is against the law.
It should be remembered that it is a criminal offence to contract an invalid marriage. For example, not very long ago a prince of the Imperial family purchased a singing girl as his secondary wife or concubine. The marriage was declared null and he was sentenced to receive sixty blows for attempting to contract an illegal secondary marriage.
Widows.—A widow or divorced woman can contract a new marriage, but she must first obtain consent of her parents and wait until the customary period of mourning is completed.
Divorce.—As an institution divorce is almost as ancient in China as marriage. Marriage is not considered as in any respect a religious contract, but as a status created principally for the comfort of man and the continuance of the race. As woman is considered an inferior creature to man she has not the same rights in or out of a court of law. However, she can obtain, against her husband’s will, an absolute divorce on the following grounds:
1. Impotency. If her husband is unable to perform the sexual act a wife can compel him to grant her a deed of divorcement.
2. If a man sells his wife to another the woman isipso factodivorced from both men.
3. If a man induces his wife to become a prostitute, or accepts her earnings as such, the wife is entitled to a decree of absolute divorce.
We can find no other causes which entitle a woman to a divorce from her husband. His adultery, cruelty, abandonment, neglect or drunkenness furnishes no ground for a dissolution of the marriage.
For a husband divorce is very easy. The so-called “seven valid reasons” enable any man so inclined to practically discard his wife when it pleases him. The seven “reasons” or causes are:
1. Talkativeness.
2. Wantonness.
3. Theft.
4. Barrenness.
5. Disobedience to parents of husband.
6. Jealousy.
7. Inveterate infirmity.
The last of the seven reasons permits a man to get rid of a wife who is incurably ill or infirm.
Mutual Consent.—If husband and wife mutually agree upon divorce the courts, by ancient custom, will ratify their agreement. Although the Chinese law does not consider the consent or non-consent of the parties as of any consequence in creating the status of marriage, it, by a peculiar process of logic, permits them to end the relationship whenever they mutually please so to do.
Perhaps one can easier understand the marriage and divorce laws of the Chinese Empire by remembering that all Chinese laws are supposed to follow the instincts of the people (Shun po hsing chi ching).
General Observations.—The present laws and customs of China are but little changed from the time of the Tang Dynasty, which reigned nearly thirteen hundred years ago.
Then, as now, a poor man who finds himself unable to support his wife, may, if she has no parents to take her back, sell her to his richer neighbour.
The judicial machinery of the Chinese Empire is the elaboration of centuries of customs and precedents. In the first instance parties seeking legal redress apply by complaint to the lowest court having jurisdiction within the district of their domicile. If dissatisfied with the decision an appeal can be made first to the District Magistracy, then to the Prefecture, and after that to the Supreme Provincial Court. If the questions involved are sufficiently important a further appeal may be prosecuted before the Judiciary Board, which sits in Peking and is the highest judicial court in the Empire.
In theory a defeated suitor can appeal from the Judiciary Board to the fountain of law and justice, His Imperial Majesty, the Emperor ofChina, but there are few cases, according to the record, which have gone so far.
We are of the opinion that Chinese law will never approach a scientific system until China recognizes the necessity and value of having professional advocates and jurists to point out the way to better things.
AAlabama,151Alaska,152Alberta,207Algeria,137Argentina,218Arizona,153Arkansas,154Australia,238Austria,67BBelgium,53Brazil,223British Columbia,206Bulgaria,129CCalifornia,155Canada,199China,265Colorado,156Connecticut,158Cuba,227DDelaware,159Denmark,81District of Columbia,157EEgypt,137England,16FFinland,94Florida,161France,38GGeorgia,162Germany,60Greece,132HHindu Law,256Holland,100Hungary,72IIdaho,163Illinois,164India,137Indiana,165Indian Territory,165Iowa,166Ireland,36Italy,46JJapan,104Jews, Laws for,96KKansas,167Kentucky,167LLouisiana,168MMaine,169Manitoba,199Maryland,169Massachusetts,170Mexico,209Michigan,172Minnesota,172Mississippi,173Missouri,174Mohammedan Law,137Montana,175Morocco,137NNebraska,175Nevada,176New Brunswick,206Newfoundland,208New Hampshire,177New Jersey,177New Mexico,179New South Wales,246New York,179New Zealand,250North Carolina,184North Dakota,184Northwest Territories,207Norway,85Nova Scotia,207OOhio,185Oklahoma,186Ontario,204Oregon,187PPennsylvania,187Persia,137Portugal,117Prince Edward Island,199QQuebec,204Queensland,248RRhode Island,189Roumania,121Russia,89SSaskatchewan,199Scotland,32Servia,125South Australia,248South Carolina,190South Dakota,190Spain,110Sweden,76Switzerland,57TTasmania,248Tennessee,191Texas,192Transylvania,72Turkey,137UUnited States of America,148Utah,193VVermont,193Victoria,243Virginia,194WWashington,195West Australia,248West Virginia,196Wisconsin,197Wyoming,198