Marriage and Divorce Laws of the World Part 51

The causes sufficient for the granting of such relief are:

A. Habitual drunkenness of the husband, coupled with habitual cruelty to, or neglect of, the wife and family.

B. Desertion by the husband of his wife.

C. Habitual cruelty of the husband toward his wife.

D. Neglect of the husband to provide reasonable maintenance for his wife and minor children.

A husband is ent.i.tled to summary relief permitting him a separation order upon proof that his wife is an habitual drunkard who habitually neglects her household duties.

CHAPTER x.x.xIII.

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 of _Dharma 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, contending that 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 civil acts 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 circ.u.mstance 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 cla.s.s distinction so completely permeates every religious and secular inst.i.tution of India that one cannot understand Hindu law without having in mind the princ.i.p.al 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 is _verna_, meaning colour, and this leads us to the true origin of caste distinctions. The _verna_, or colour, of the light-complexioned Aryan invaders who entered India from the Northwest and the _verna_ of the dark-skinned aborigines whom they subjugated established the first distinctions of caste.

There are four princ.i.p.al 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 cla.s.s, called _Pariahs_, are of no caste, and are practically outside the law.

The first three upper cla.s.ses 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 ten _sankars_, or sacraments, necessary for the regeneration of men of the twice-born cla.s.ses, and the only sacrament for women and _Sudras_.

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 G.o.ds 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 of a 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 the _Sudra_ absolves 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 p.u.b.erty. The reason for marrying off a girl before she reaches the age of p.u.b.erty is that the marriage should be free from s.e.xual 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 the marriage 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, a _sakulya_ or kinsman in succession.

The want of parental consent, or the consent of the person standing in _loco 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.