Hindu Law Reform

Hindu Law, as it is administered in our courts of law at the present day, abounds in anomalies and endless doubts and complexities. In most matters, it is difficult for even the most experienced and well-read lawyer to advise his clients with any degree of confidence. It is again impossible to find anything like a reason or a justification for the application of several of the Hindu Law rules to the Hindu society as it is at present constituted, whatever might have been the justification for their application to the archaic state of society in which they were originally evolved. One may indeed go further and say that some of these rules are such as can hardly do us any credit before the civilised world.

The surprise is that Hindu society which has produced able and intelligent lawyers, who can stand comparison with the lawyers of any other civilised country, should have been so inactive in the matter of setting its own house in order. Indeed we have not heard and we do not hear of Hindu Law Reform, though it must be obvious to even the most casual observer acquainted with the barest outlines of Hindu Law that it stands in need of reform in almost every department. Much of the discredit for this inaction must no doubt fall upon the Bar, which should not only guide and focus public opinion on legal reforms necessary for the progressive and ordered well-being of society, but should itself take a prominent part in initiating the necessary legislation. Whatever that be, the fact remains that where the legislatures could have and ought to have interfered to clear doubts and remove uncertainties in the matter of the administration of Hindu law and to render it more rational and just and to bring it in consonance with modern ideas, the legislatures have failed to interfere and we are left with a system of law which is substantially the same as was left to us by Vijnanesvara or the other commentators several centuries ago.

The Caste Disabilities Removal Act (XXI of 1850) which provided against forfeiture of rights of property in the case of Hindus renouncing or having been excluded from the communion of the Hindu religion or being deprived of caste, the Hindu Widows' Remarriage Act (XV of 1856) which validated the remarriage of Hindu widows, the Hindu Transfers and Bequests Act (Madras Act I of 1914) and the Hindu Disposition of Property Act (XV of 1916) which legalised transfers inter vivos or dispositions by will in favour of unborn persons, the Hindu Wills Act (XXI of 1870) now re-enacted in the Indian Succession Act (XXXIX of 1925) which provided for the execution and interpretation of wills by Hindus, the Madras impartible Estates Act (II of 1904) imposing restrictions on the powers of alienation of holders of impartible estates, are the only instances of legislation in British India affecting, in however slight a degree, the legal rights and status of Hindus. It is obvious that this is a mere flea-bite and the vast field of Hindu Law where legislation is possible and desirable is still untrodden. And legislation of the simplest kind which could effectively put a check to wasteful litigation is conspicuous by its absence.

One fails to see the purpose of elaborate inquiries, for instance, into the factum of a particular adoption or the existence of an oral authority to adopt, which is stoutly asserted on the one side and repudiated on the other. Courts of la ware compelled to waste their time listening to the unconvincing or inconclusive testimony of interested witnesses. Witnesses, sometimes in dozens, are brought up several miles from their villages to depose to events which never happened or of which, if they happened at all, they have nothing more than a vague or indistinct recollection. Money is wasted and litigation rendered a good deal costlier than what is either necessary or desirable. There is no reason whatever why the law should not insist that an adoption or an authority to adopt should be evidenced by a registered instrument. I can scarcely believe that there would be any controversy about, or opposition to, any such legislation.

The Hindu Law of adoption with its perpetual doubts and difficulties is a very fruitful source of litigation. The idea of a 'family council' deciding upon the expediency of substituting an heir by adoption to the deceased husband at the request of a widow who contemplates an adoption "in the proper and bona fide performance of a religious duty and neither capriciously nor from a corrupt motive" may be alluring to the imagination, but is as far removed from actualities as anything can possibly be. The requirement that a Hindu widow who is not authorised by her deceased husband to adopt should seek the consent of her husband's sapindas, very often places her at the mercy of her husband's avaricious kinsmen who are guided by motives which it would be a travesty of language to characterise as bona fide. While the social consequences of such a rule are sufficiently deleterious, the legal aspect is almost disheartening. Questions of the greatest nicety and complexity have arisen in the past and are sure to arise hereafter with reference to this vexed subject of the assent of the sapindas, and it is needless to point out the speculative litigation that this deplorable state of things is giving rise to. Who are the persons whose consent must be sought for and obtained? Has a daughter's son to be consulted? One bench of the Madras High Court said 'no' in 1919. Five years later, another Bench of the same Court said 'yes.' Whether the assent of cognatic relations, in the absence of agnates, should be asked for and obtained, and whether it would be legally efficacious, was decided in the affirmative sense only in 1916 by Mr. Justice Spencer and Mr. Justice Venkata Subbarao. The motives of the widow in making the adoption may not be gone into by courts of law, but it is open to the sapindas who are approached by her to give their consent to an intended adoption to go into her motives. Again, the motives of the sapindas in giving consent or in refusing it are material and are of the utmost importance when the validity of the adoption following such consent or refusal is impeached. It is a fruitless effort to define the reasons for which it would be proper and the reasons for which it would be improper for a sapinda to refuse his consent. The Privy Council says, in the Urlam case, that a reversioner is entitled to take into account the secular consequences flowing out of an adoption. Construing this dictum, one learned judge says in the recent Gollaprole case that the refusal of a sapinda to consent to an adoption because his reversionary interest will be prejudiced, can in no circumstances be justified, while in the same case another learned judge asserts the contrary. To what extent can a civil court scrutinise and dissect the motives and the reasons which operated upon the minds of the sapindas, 'the family council' of the Vellanki case? To use an expression familiar to lawyers, is a civil court in the nature of a court of appeal bound and entitled to go into the question of the expediency or otherwise of the adoption, or is it simply a court of revision interfering only when the domestic tribunal was guilty of gross and palpable misconduct?

What if there is only one reversioner of the nearest degree and he refuses his consent for reasons which are ex facie selfish and unjust? Can the widow secure the consent of remoter sapindas and make a valid adoption? A decision of the Madras High Court answers the question distinctly in the negative. But justice and equity clearly demand an affirmative answer. Again if there are two reversioners of the same degree and one of them gives his consent to adoption and the other does not, and the refusal is based on grounds which are unreasonable or unsustainable, is it open to the widow to make the adoption with the consent of remoter sapindas? Justice Ramesam of the Madras High Court was of the opinion that the widow is helpless in such circumstances, but Justices Krishnan and Venkatasubbarao gave expression to the contrary view in the Gollaprole case. There is a good deal to be said in support of the latter view on considerations of fair play, if on no other.

It is not necessary here to do anything more than indicate the doubts and difficulties that surround, at every stage, a Hindu widow who bona fide and with a view to perpetuate the lineage of her deceased husband, intends to adopt a son to him. It would not be an exaggeration to say that she is literally at the mercy of her husband's reversioners who are in most cases, if not invariably, corrupt and avaricious, and whose motives either in giving consent or in refusing it, are collateral to the real issue they are called upon to decide and to advise upon, namely, the expediency of the adoption and the fitness of the boy proposed to be adopted.

The proper solution seems to me to be to enable Hindu widows to adopt irrespective of the consent of sapindas except where such an adoption is expressly prohibited by the husband, thus bringing the law of this Presidency into line with what obtains in the Bombay Presidency. I cannot think of any other way of effectively solving the difficulties that we are every day confronted with in the Southern Presidency. It is at once simple and rational and would bring about the very-much-desired emancipation of Hindu widows, if it is permissible to use that expression, from the intolelrable tyranny of greedy reversioners.

An allied subject is that of alienation by a Hindu widow of properties inherited by her from her deceased husband. In these progressive days when women are claiming and are succeeding in getting equal rights with men in almost every direction, the easiest solution would be to do a way altogether with the peculiar and anomalous estate known to Hindu Law as 'widow's estate' and to confer absolute rights of property on Women who succeed to the property of their male or their female relations. The Muhammadan Law does not impose any restriction son the powers of alienation of women, nor does the Indian Succession Act. It would be an undeserved insult to the ability and intelligence of Hindu womanhood if we are to suggest, relying upon the Worn-out dicta of ancient sages, that Hindu Women are unfit to manage Worldly affairs and to hold and administer property. I am aware this would be regarded as a drastic and almost revolutionary step to take. But it is bound to come sooner or later, and the sooner it comes, the better for every body concerned. There is nothing more painful than the spectacle of judges, lawyers and litigants, wasting their time in the attempt to find out whether an alienation by a Hindu widow thirty or forty years ago was supported by necessity or whether it was simply the result of her own personal extravagance or greed, and yet this is one of the staple subjects of litigation in this country. In most cases it is difficult to get anything like satisfactory evidence. It is very often on guess work and conjecture that the ultimate decision is based, the disastrous result of it all being that speculation is encouraged, property changes hands for far less than its real and deserved value,; and there is nothing like security of title.

One way of getting over the difficulty may be to enable parties, if they are so minded, to obtain the opinion and sanction of a court of law as to the existence or otherwise of valid and justifiable necessity for a contemplated alienation, somewhat on the lines of 'the originating summons' Procedure obtaining in England. All the interested parties, including the next presumptive reversioners, may be represented in such a proceeding and the decision so come to should be binding on the person or persons who ultimately succeed to the estate after the reversion opens. This procedure would have the advantage of recording and perpetuating testimony at a time when it is available and of quieting and dispelling all doubts about title which ordinarily deter bona fide purchasers from purchasing property from limited owners. The Hindu la w of succession and inheritance has also come in for a good deal, of criticism, and deservedly, at the hands of able and eminent Hindu Judges. There is nothing more monstrous than the preferential right of succession of an agnate of the 14th degree of whose 13th ancestor the propositus happens to be a descendant, to the sister or sister's son, or daughter's daughter's son, or sons's daughter, or daughter's daughter, or father's sister. It does not seem to be yet settled whether female relations other than those enumerated above are, or are not, entitled to succeed. Even female bandhus whose rights of succession have been recognised can succeed only in the absence of all male bandhus, however remotely the latter may be related to the propositus. The obscurity which still pervades the la w of succession especially in the case of bandhus is a standing scandal to any civilised system of jurisprudence. It is universally acknowledged that a far simpler and clearer law of succession, and one which is more in accordance with natural affection and family ties than the present Hindu law of succession, is very much of a desideratum, and I do not think it would be difficult to devise a scheme of succession which possesses the necessary and essential attributes of simplicity and certainty and which chimes in with natural affection and ties of blood without wounding very much the susceptibilities of the ordinary and average Hindu.

I do not mind drastic changes if they should be necessary, but I do believe that it would be quite possible to provide for most cases which will or are likely to arise without kicking up a storm of opposition for the sake of theoretic consistency or regularity, or with a view to provide for fanciful cases which exist more in the imagination of legal theorists than in the every-day world with which the practical lawyer has to deal.

It may not be possible to have all on a sudden an Act which amends and consolidates Hindu Law. The time for enacting a code of that description is not yet, the opinion of Dr. Gaur and other eminent lawyers notwithstanding. The reform of Hindu Law may have, for a long time to come, to proceed in a piece-meal fashion, with an amendment here and an amendment there, rendering Hindu Law more simple, more certain and more rational than it now is. And in the fullness of time, we can have and ought to have a consolidated Hindu Code which would, for its lucidity, clarity and rationalism, take its place among the great codes of the world.