Hindu Law Reform

By Prof. S. VENKATARAMAN, M.L.
(College of Law, Andhra University)

When H. J. Cunningham compiled a Digest of Hindu Law in 1877 in the form of 392 numbered sections “in such a form as may indicate the possibility of enactment in a Code if at any time hereafter the Government should consider this desirable”, Mayne observed “The age of miracles has passed, and I hardly expect to see a code of Hindu Law which shall satisfy the trader, the agriculturist, the Punjabi and the Bengali, the Pandits of Benares and Rameswaram, of Umritsur and of Poona. But I can easily imagine a very beautiful and specious code, which should produce much more dissatisfaction and expense than the law as at present administered.” The statement is almost prophetic, having regard to some of the criticisms directed against the Hindu Code Bill, that has now been put off. A just assessment of any proposals for the reform generally of Hindu law–a fortiori for its codification–will be possible only if some facts forming the ground of the application of Hindu laws to Hindus are clearly grasped. Warren Hastings’ plan of 1772 provided in terms, of which the substance regulates even today the greater part of India, that in certain matters only Hindu law was to be administered to the Hindus. These matters were family relations and succession. It was assumed that these laws were religious laws ascertainable by a study of the sacred books. Even at the threshold of such study it became clear that the ancient texts could not be the last word in modern practice. It was realised that the texts had been superimposed by mediaeval speculation and later day usages. If Hindu law is at present administered as a system, it is due altogether to judicial development on lines followed in England, with disinclination on the part of Judges to deviate from established principles and distaste for abstract reasoning. Even in the restricted spheres where Hindu law was to operate, it was found that sastraic rules were neither harmonious nor always complete, and that one set of rules afforded guidance in Bengal and a different set of rules elsewhere in India. The differences were often fundamental. Outside Bengal, following the teachings of the Mitakshara, the joint family institution with its special features–of property being held in commensality by a person and his lineal male descendants within the third generation, of ownership arising by birth, of the interest of a member passing on his death by survivorship to the remaining members, of inalienability of property etc,–had come to occupy an important place in the social economy of the country. In Bengal, property was held in full individual ownership in accordance with the teachings of the Dayabhaga. Again, while heirship was regulated outside Bengal on the basis of blood relationship, within Bengal it stood linked up with the principle of spiritual benefit. It was also clear that everywhere diverse customs were followed by the Hindus in preference to the rules given by their jurists. So much so, it was declared by the Privy Council that under the Hindu system of law clear proof of usage will outweigh the written text of the law.

The need for a “well digested code of laws compiled agreeably to the laws and tenets of Gentoos” had been grasped by Warren Hastings. The task was however impossible in those days, as the laws of the Hindus had not then been ascertained. In 1833, in the course of his speech on the Bill which became the Charter Act, Macaulay had to admit that codification was not then possible. He said: “We do not mean that all the people of India should live under the same law; far from it. We know bow desirable that object is; but we also know that it is unattainable. But whether we assimilate those systems or not, let us ascertain them, let us digest them.” The policy was thus to ascertainment first, then consolidation, and finally reform. The first law Commission presided over by Andrew Amos looked forward in 1840 to the preparation eventually of three codes, one for the Hindu, one for the Muslim, and one for the English laws, The Commission appointed under the Charter Act of 1853 however recommended that “no portion either of the Mahomedan or of the Hindu law ought to be enacted as such in any form by a British legislature.” It was felt that a code would stereotype the law and arrest development which, it was felt, must happen and would be desirable. It was also thought that the Hindu law was a religious law and that a British legislature ought not to deal with it. The association of Indians later on in the task of legislation and the advent of representative government took the sting out of the argument. In fact, notwithstanding the above considerations, the Hindu laws were by no means left untouched, and, in the words of a learned writer, “there is scarcely any principle of the orthodox law that has not been eaten into either wholly or partially by the legislature.” It is true that in the past, to an oriental mind, a personal law appeared more familiar and natural than a territorial law.¹ The impact of western ideas and concepts of law has however come to be felt. Changes in the political, economic and social conditions of the country have had repercussions on laws and brought modifications steadily if not spectacularly. The case for reform and codification is strengthened rather than weakened by the existence of innumerable customs at variance with the sastraic rules. Custom was of value in early days in adapting primitive rules to suit the requirements of advancing civilisation and progressive opinion, particularly at a period when there were no regular legislatures functioning. As was remarked by a learned lawyer, “the vitality of custom today as a law making factor is a myth,” inasmuch as its legal title to recognition depends on its being ancient, which at the present time would result in the petrifaction of outmoded practices. Most of the customs have outlived the conditions and needs which gave birth to them. So if legislation is not to step in to get rid of these outworn rules, to “ring out the old and ring in the new,” Hindu India will remain in a museum of dead things. The needs of a strong Hindu society require a fusion of their divergent laws and their replacement by a single and easily ascertainable law of property and succession uniformly applicable to all, without distinction of caste or sex.

The Preamble to the Constitution of India promises equality of status for all the people of India. Article 14 provides for equality before the law. Article 15 provides against discrimination on the ground only of religion, race, caste or sex. Article 25 (2) expressly states that the right to freedom of conscience and to profess, practise, and propagate religion shall not affect the operation of any existing law or prevent the State from making any law for social welfare and reform. It is true that Article 44 declares that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. This provision cannot however derogate from the competency of Parliament to enact laws for Hindus, nor can it serve as an argument against the desirability of reforms for them. The Muslims have achieved solidarity for themselves by the Mapilla Succession and Wills Acts, the Shariat Act, and the Cutchi Memons Act. The Christians have achieved homogeneity through the Indian Christian Marriage Act and the Succession Act. The Hindus alone present the spectacle of a house divided. The Hindu laws alone are characterised by wide and considerable diversities and are liable to be controlled by customs. If Hindus achieved unity, then the switch over from personal to territorial laws will become feasible without much jolt, as they will be strong at the bargaining counter. The influence of law on the family and social life of a people and on their outlook is considerable, and, in the widely differing conditions of present day Hindu society, if discordant legal environments are added to other social differentia they willproduce a distinctly centrifugal effect. It is thus clear that from all aspects a reform of Hindu law is desirable.

In undertaking the task, the only course to adopt, consistently with the factors mentioned supra is to take whatever is most progressive and reasonable in the Mitakshara, Dayabhaga and the Mayukha and weld them into a single body of rules. To allow customary law to operate alongside of such rules would be unthinkable. To do so will be to consign some of the communities to perpetual social inferiority and to the maintenance of out-of-date standards. It will verily be a betrayal of trust Legislation affecting Hindu law since 1850 has reconciled most Hindus into thinking that their laws are not so inextricably mixed with religion as not to allow change by legislation and that there is nothing sacrosanct about them. A systematised code speaks at once in all its parts, not contradictorily but in harmony or orchestration of principles. It means the formulation of rules characterised by lucidity, certainty and uniformity and would materially reduce the risk of injustice. In any scheme of reforms violent breaks with the past should be minimum. Antinomies of all kinds should be eliminated. The reforms should be planned to promote social improvement and economic sufficiency and must come up to modern standards of justice.

Hindu life in the past presented a bewildering array of conjugal relationships from the highest forms of monogamy to the grossest forms of polyandry bordering almost on promiscuity. The sastraic rules concerning marriage have been radically modified by legislation enacted from time to time. What is found today is an unattractive mosaic of ancient rules modified by legislation and a mass of confused customs. Identity of caste is no longer necessary for a valid marriage (Act 21 of 1949). ‘Sagotra’ and ‘Samanapravara’ marriages are made competent (Act 28 of 1946) Impotency has been held to preclude marriage (52 Calcutta Weekly Notes, 142). Monogamy has been made obligatory for men as well as women in the States of Bombay and Madras (Bombay Act 25 of 1946; Madras Act 6 of 1949). The law is different on this last matter in other States. The Sastras had allowed a man to take a second wife if the first wife was barren or vicious, and, if diseased, with her consent. Legal justification was needed for taking a second wife. In the spacious days when Hindu law was yet in the process of ascertainment, judicial decisions took the view that no such justification was necessary. The result has been to have two standards one for men and another for women. It is not in consonance with enlightened public opinion or the provisions of the Constitution to have such different yardsticks. It is useful to note that marriages contracted by Hindus under the Special Marriage Act are monogamous and marriages contracted by persons governed by Marumakkathayam usages have become monogomous by statute. In these circumstances the Hindu Code Bill has provided for monogamy being equally obligatory for men and women all over India. Surely there can be no objection to so reasonable a proposal.

Though Hindus in general believe that marriage is a very sacred institution and a ‘samskara’, a considerable section do not have any faith in the ceremonies of marriage. Custom has made deep inroads and a marriage without observance of the ‘vivaha homam’ or ‘saptapadi’ would yet be valid. Even the mere tying of a tali round the neck of the bride in the presence of an idol in a temple will suffice, and there is no necessity for the presence of a priest. There are also many Hindus who would like to marry without observance of rituals but who are unable to do so in the absence of custom. A purely civil marriage is now possible for Hindus, only when they marry as such under the Special Marriage Act. Resort tothe Act attracts however certain special results. Provision for a purely civil form ofmarriage for Hindus side by side with dharmic marriage is thus a desirable step to take. The Hindu Code Bill has provided to that effect. To have a provision, altogether optional in incidence, leaving it to the parties to decide whether they would like to be married with allthe ceremonies and rituals of marriage as practised in their community or whether they wish to treat marriage purely as a contract, can be open to no reasonable objection. Now that inter-caste marriages both in the direct as well as indirect order of castes are allowed, observance ofceremonies, if insisted upon, may become a matter of conflicts and controversies.

The Hindu marriage has been through the years a venerable, institution. It has been regarded with great sanctity. Consistently with it, it could hardly be disputed that alliances where no formalities, either civil or religious of even a minimum kind, are observed should continue to be tolerated on the ground of usages merely. It is an unfortunate feature of Hindu law that alongside of polygamy, concubinage also should have been recognised as carrying a legal status. Neither religion nor morality can countenance the practice. It is also anomalous that while among the dwijas an illegitimate son does not have rights, he is invested with heritable capacity among Sudras. The maintenance of such a distinction has no justification, having regard to the facts of Hindu life, and is only irksome and irritating. The Hindu Code Bill, in so far as it provided for the abolition of the status of concubine and illegitimate offspring certainly took a step in the right direction.

Hindu opinion in the past has not been in favour of the dissolubility of marriages. Divorce was no doubt practised by a number of communittes by way of custom. Those communities were however looked down as being socially inferior. Kautilya and Parasara among the ancient writers had provided for dissolution in certain stated circumstances, but Hindu tradition had generally been against the institution of divorce. Nevertheless, dissolubility of Hindu marriages became possible since 1866, when the Native Converts Marriage Dissolution Act was passed. If one of the spouses in a Hindu marriage subsequently became a Christian and followed the procedure prescribed by the Act, that person’s Hindu marriage could be dissolved and both the parties thereto would acquire liberty to marry again. If intrusion of divorce had to be resisted, it should have been done then. The vista then opened up has gradually gathered momentum and there have now been enacted laws in Bombay and Madras (Bombay Act 22 of 1947; Madras Act 6 of 1949) providing for dissolution of Hindu marriages. Divorce by custom is prevalent among large sections of Hindus. Outside custom, in the States of Bombay and Madras, Hindus can have dissolution of marriages by virtue of provincial legislation. The framers of the Hindu Code Bill have, probably not unreasonably, thought that a uniform law should be provided for all Hindus all over India. Surely the authors of the Bill cannot be charged with making an innovation. Whether it was realised or not, the legislature as early as 1866 had sanctioned dissolution of Hindu marriages, even if it was only incidentally and on one ground only. Is it not also desirable that divorce on altogether fantastic grounds, which would be possible under customary law, should be prohibited and dissolution allowed only for reasons conformable to justice and equity? On the whole the grounds on which dissolution may be sought under the Madras Act are reasonable. The Hindu code Bill has added twoother grounds, the wisdom of which is questionable. To some extent it may be due to the anxiety of the framers to provide for matrimonial relief in the form of judicial separation. This is a type of relief which was not found necessary at any time. If the parties live apart for justifiable reasons, law does not interfere. If living apart is not warranted, a decree for restitution is made. Such being the case, provision for judicial separation is a relief of doubtful utility. Having provided for it, the Bill has sought to allow a suit for dissolution on the ground that the other party has not resumed marital intercourse for a period of upwards of two years after a decree or order for judicial separation has been passed against the respondent. This provision is really not wanted and it would be advisable to drop it. Dissolution of marriages should be allowed only, to a minimum extent, and that too only where the justification for it is of the plainest description and to allow it would be to promote morality. It has been said that if customary divorces are abrogated it would hit the poorer classes inasmuch as the cheapness and expedition associated with such divorces cannot be had if divorce is to be through court only. Plausible though the argument is, it is dangerous to accept it. There cannot be a raising of the standards of marriage if at the same time crude divorce customs are allowed to be perpetuated.

The law relating to prohibited degrees in marriage has often become a matter of mockery. In theory at any rate, girls within five degrees through the father and three through the mother should be avoided. Custom has eaten so widely and deeply into the matter that even marriages with the sister’s daughter have come to be countenanced. It would conduce to clarity and certainty if the rule as to prohibited degrees is replaced by an enumeration of prohibited relations for purposes of marriage compatible with modern outlook. The Hindu Code Bill has rightly attempted to give such a list. Its insistence however on the observance of the prohibited degrees also, subject to any customs, and the option it gives to a party to avoid the marriage on the ground of violation of the rule are clumsy and cumbersome. If simplicity is to be achieved as well as certainty, the best course will be to give a list of prohibited persons and not to insist on the observance of further rules of prohibition.

The Hindu Code Bill provides for the registration of Hindu marriages. For civil marriages registration is compulsory. For dharmic marriages it is optional, power being reserved to a State to make registration of such marriages also compulsory. No doubt registration will be valuable from the point of proof of such marriages. If registration of dharmic marriages is made compulsory, it is bound to be resented as an irksome requirement. Also public opinion has not advanced so far as to appreciate the utility of the provision. It may therefore be dropped so far as marriages other than civil are concerned. The provision in the Hindu Code Bill for registration of dharmic marriages already celebrated is also not likely to be received with favour. It will not be proper to give a new turn and significance to a marriage contracted by the parties under different auspices.

The law of adoption as it stands at present is very unsatisfactory and has been responsible for a lot of avoidable litigation. A widow in Mithila cannot at all adopt to her husband. One in Bombay can do so unless her husband had prohibited her. In other States the law has taken an intermediate course. In Madras a widow not having her husband’s permission may adopt if duty authorised by his kindred. A mass of rules as the result of prolific litigation caused by this latter doctrine have come to be laid down. Surely there can be no objection to make the Bombay rule one of general application. Again in the selection of boys fantastic positions have been revealed. The adoption of one older than the adopter and of even a married man are practices hardly to be reconciled with the doctrine that adoption is the acquisition of a substitute of a son. Also in the selection of boys full scope should be available for feelings of natural love and affection. There is no reason, in that view, to prohibit the adoption of a daughter’s son or a sister’s son in the absence of a custom. It is also salutary to prohibit adoption by minors. The provision in Section 2 (a) of the Indian Majority Act may be abrogated. The Hindu Code Bill has accepted most of these principles. It has, while laying down that any Hindu widow who has completed eighteen years of age has capacity to adopt to her husband provided the latter has not expressly or impliedly prohibited her, stated at the same time that a male Hindu may authorise his wife to adopt a son or prohibit her from doing so. It may be argued that this means that the husband’s authorisation is necessary in every case. If that be so, there is not much merit about the provision. Again the Hindu Code Bill contains provisions for registration of adoptions and a short time-limit within which adoptions should be avoided. These are needless restrictions.

The field of inheritance is yet another part of Hindu law where considerable reform is needed. To link up inheritance with competency to confer spiritual benefit is hardly compatible with modern conditions. It does grave injustice to women in particular. At the same time to make heirship dependent mainly on agnatic relationship will be out of tune with considerations of justice and equity. Cognatic relations are also entitled to come in. It is desirable that in arranging the heirs regard must be had to ties of natural love and affection. The Hindu Code Bill has suggested that certain heirs like sons, widow and daughters should take simultaneously. This is a step strongly to be commended. That a daughter should take along with a son has evoked strong criticism. This attitude is to be deplored. The days when marriage was the only prospect for a girl are over. The apprehension that if the daughter takes a share it will pass into another family is sentimental rather than rational. Also career for women has become a normal feature and there might be a large number of girls who may prefer to remain spinsters. Also the extra expense occasioned by a daughter’s marriage has its counterpoise in what the daughter-in-law brings, and in that way equilibrium in the family is sure to be maintained. Whether the daughter should have an equal share with a son is a matter of detail, not one of principle. According to Manu, “a son is even as one’s own self and the daughter is equal to the son; and so long as she is there as the father’s self how then can another take the property?” The sentiment will find an answering echo in every heart. The logical response must follow. The Hindu Code Bill has proposed an equal share for the daughter. The Bill has also suggested the abolition of distinctions maintained between a married daughter and a widowed daughter, between a relatively rich daughter and a relatively indigent daughter, between a daughter having male issue and a barren daughter. These distinctions cannot be justified at the present time and have to go.

It is a sad feature that the doctrine of limited estate in inherited property has been imposed in the case of women. The doctrine was the result of judicial misconception about the importance of the Mitakshara and an apprehension that Vijnaneswara’s definition of ‘stridhana’ as including inherited property may be the subject of restrictions in other parts of the Mitakshara which were not then before the Privy Council. The theory of presumed incapacity of women for independence and their perpetual tutelage are no longer valid. A similar principle existed in Roman and other systems of jurisprudence in early times and has been given up. Among Christians and Muslims women take property absolutely. No harm has happened thereby. Even among Hindus, in the State of Bombay, daughters take absolutely. In Mithila, a widow takes her husband’s movable property absolutely and can bequeath it. And everywhere a widow is competent to surrender her estate. Such being the position, is there any justification for the continuance of the doctrine of limited estate for women? Except tradition and prejudice nothing stands in the way of justice being done. The Hindu Code Bill has not maintained the doctrine. It has accepted Vijnaneswara’s view as to ‘stridhana”. That view is at once simple enlightened and discerning. It is all the more acceptable, because Vijnaneswara was a great and scholarly ascetic who could be trusted to do nothing contrary to Hindu religious principles, or unjust. Apart from every other consideration the reform would eliminate a considerable amount of litigation by persons with reversionary interests.

The Hindu joint family laws have to be treated even more radically. The institution was based on excellent ideals. It was a study in co-operation. In the past, it has played an important part in the economic structure of the society. The integrity of the family could be broken by mutual agreement only. Family property could not be alienated by any one member in any degree. On the death of a member of the joint family, his interest survived to the rest. Till partition there was common possession and enjoyment. A woman had no place as a sharer. She, as a member of the family, could have only maintenance rights. Every one of these features has been cut across. Any member may nowby unilateral declaration sever himself from the family. In Madras and Bombay, a member can convey for value his share. With the passing of the Hindu Women’s Rights to Property Act in 1937, even the operation of survivorship is controlled and a wife is substituted in the place of the husband with the right to call for partition at any time. It is also open to a creditor to obtain a decree against his debtor coparcener and attach his interest in execution during his lifetime, in which case also on the death of the coparcener survivorship cannot operate to the prejudice of the creditor. Of the joint family institution the shell or frame alone now remains. The spirit has fled. The features that once made it unique are no longer there. The large urban life of modern times no longer permits male members of the family to stay together. Competitive conditions take the members away to different places in quest of a living. Trade and commerce have taken the place of agriculture as the fulcrum of society. Commercial pursuits require freedom to alienate and facilities therefor. In such a set-up, the joint family tenure becomes an outmoded ideal. The institution today is a stumbling block to economic planning, and, except for sentimental reverence to an ancient institution, thereis nothing in favour of its continuance. The Hindu Code Bill has suggested the abolition of the institution. Sober thinking will be in favour of the proposal.

The rules relating to the devolution of ‘stridhana’ are nowchaotic. A set of simple rules uniformly applicable to all cases is a desideratum.

¹ Hall: Foreign Jurisdiction of the British Crown, 1894, p. 133.