DEBATING RIGHTS: LAW AND THE WOMEN’S QUESTION
The Case for Hindu Law Reform: Women’s Rights in Hindu Law
Mr. Jayakar said in the course of his presidential address to the 41 session of the Indian National Social Conference held at Calcutta on the 25th December last:-
If the law had stood where the Mitakshara (ancient and influential treatise on the Hindu law of inheritance– editors) had molded it, or even if it had been allowed to develop on the progressive lines of interpretation adopted by the later Maratha author of the Vyavahara Mayukha (a 17th century law digest whose rulings prevailed in western India – editors), there would have been no trouble at all. But in course of time rival schools arose, and especially in the earlier stages of their decisions, the Privy Council, sitting at Westminster and naturally struggling under a misconception of the historic and other antecedents of the Indian people, have unconsciously played in the hands or orthodoxy. The Englishman was not accustomed until the eighties to regard women in his own country as independently capable of acquiring or holding property. English women got this right at a very late stage. With this bias in his mind, it is not surprising that the English judge at Westminster, in interpreting ancient Indian texts written in a language which he did not understand and of the context of which too he was personally ignorant, adopted a position inclining more towards limited female rights than towards absolute ones.
In a celebrated ruling which laid down for all time that inheritance derived by women from a male in their husband’s families can never become their absolute property, the Privy Council, being solely dependent upon confusing rival quotations cited on opposite sides, have actually abrogated the Mitakshara rule in favor of more ancient and doubtful texts vaguely prescribing an ascetic life for Hindu widows. The bias thus acquired by judicial decisions has unconsciously survived to the present day. The English judge in England and in India, owing to his natural caution born of his ignorance of the language and the habits of the people, has fought shy of liberal interpretations except when compelled by the clearest evidence. The whole administration has been, so far as Hindu Law is concerned, as grievously unnatural as if Japanese judges sat at Westminster in 1928 giving rulings on the domestic laws of Englishmen from Japanese translations of Bracton or Coke or Lyttleton (authors of standard texts on law in England – editors), unconcerned with the mighty social changes which had taken place in English society since those times of which they had no conception owing to their isolation.
It is not my intention to blame individuals, but to condemn the system under which they are working. The result is that Hindu Law which has a very large resilience and power of adaptability has remained unresponsive to the requirements of the times in the British period. The adaptability of the Hindu Law is surprising to those who study it from this point of view. Whenever an Indian judge of learning, insight, sympathy and knowledge has had the chance of interpreting the ancient texts, he has tried his best to bring them into accord with the growing requirements of modern society. Sir Lallubhai Shah’s ruling on the validity of anuloma marriages (a marriage in which a man of a ‘higher’ varna marries a woman of a ‘lower’ varna – editors) can be cited as one instance. Occasionally a gifted English judge, whose natural vision of imagination has enabled him to see clearly through the darkness of texts and quotations has lighted on a true rule, but in such cases its effect has been nullified by his over-cautions colleagues or successors. The result is that to-day there are a large number of anomalies waiting to be set right. To depend upon judicial interpretation for doing this work would take centuries. It is necessary, therefore that legislation should take a hand in this work or reform.
It is most urgently needed to-day in improving the position of the widow in a Hindu joint family. When the husband dies undivided, we are all aware of her miserable lot. She cannot get her husband’s share if she is without male issue. The rules under which maintenance is decreed to her are unjust. They all lean in favour of her husband’s coparceners. A vague sort of feeling that a Hindu widow must be an ascetic before her age and inclinations make it possible, has restrained British Indian judges from interpreting the law in a plain natural and modern sense. Her rights of adoption have been curtailed and the beneficence of an important ruling of the Privy Council in that behalf has been limited in some Provinces on the principle of stare decisis. There is (no) reason why the wife of a separated Hindu without issue should not be allowed to take the best part of his estate. It is far more natural and human to do so than that she should enjoy a limited or life estate and on her death the whole property should pass to a sapinda (coparcener in the 14th remove whose existence was not even known when the husband died and in many cases not till after the widow’s life terminated. The necessities of the times when this agnatic preference arose have all disappeared. Hindu males are no more the fighting asset which they once were, and there is no need to favour them with preferential rights of succession unnatural on any rational theory of life. Yet the peculiar rule continues and receives daily interpretation and support.
Again, there is no reason why all over India the daughter should not take her father’s estate absolutely as she does in Bombay. The artificial distinction is unknown to the Mitakshara, of inheritance from males and inheritance from females, nor of males in her husband’s family or in her father’s family. All these distinctions have reference to a period which had extraordinary social and military necessities, no longer operative in Hindu Society. The time has come when, in thorough conformity with the true spirit of Hindu Law, which is rationalism, equality and humanity, changes should be made. One such principle for the acceptance of which the Mitakshara struggled hard, was nearness or propinquity according to blood relationship and not according to funeral oblations. The author of that book, one of the noblest treatises known to Hindu Law, raised a storm by reversing the current of feeling and adopting a plain sensible rule of succession, viz., whoever was nearer by blood was entitled to succeed. Blood particles, he said, are the true test and not ancestors in the heavens placated by funeral balls. The time has come when the plain, natural and sensible rules of the Mitakshara in places supplemented by the virile common sense of the Mayukha, should find a permanent place on our Statute Book.
Revolt, 16 January 1929
Hindu Law Research and Reform Conference, Poona (Hindu Law Must be Reformed)
The First Hindu Law Research and Reform Conference was held at the Parashuramabhau College, Poona, at the Presidentship of the Hon. Mr. Justice Madagaumkar. The following is an extract of the speech delivered by Mr. N.C. Kelkar, Chairman of the Reception Committee (see above pp. 393-394):
It is needless to point out what great havoc must have been caused in the correct administration of the Hindu Law by the British Law Courts as now generally constituted. The question, therefore, arises how is this havoc to be remedied, if not through legislative measures, either forced upon or accepted by Government, by public opinion or by bills introduced by private members of competent legislative bodies. When the Legislative Assembly, for instance, consists of a majority of elected members and among them almost a fair representation of the Hindu population, it would be too hazardous to say, that such a body ought not to take cognizance of any measure of social reform or a measure affecting the Hindu Law. It would be too anachronistic or out of time to say, that the Legislative Assembly even as now constituted is absolutely incompetent to deal with the measures affecting Hindu Law and custom.
It would be a large order on nature to expose that the Hindu Law, hundreds or thousand of years old would be quite enough or suitable for all succeeding generations, present and future, and that the accumulated momentum of altered custom and usage would be permanently pent up and hermetically sealed for ever. In every progressive civilized nation, research had always doubly effected firstly, to put up ancient things in clear light and correct perspective, and secondly, to suggest ideas of reconstruction and reform along with legitimate revival.
The President’s Speech
The Hon. Mr. Justice Madgaumkar, in the course of his Presidential address, said:
We all deplore the lack of progress – it might even be called degeneration from which we have been suffering from centuries. An orthodox Hindu statesman, Sir T. Madhavrao opined half a century ago that there was no society which suffered so much from self inflicted evils as Hindu society. The causes are patent: extreme conservatism, lack of perspective, reluctance to face real attempts to work round difficulties by metaphysical casuistry and legal subtleties, inability to adapt ourselves to altered environment, stubborn pride in the past with insufficient thought of present and future – all these most of us are agreed, are the root-causes. It is this which causes a large number of us to shirk the work of reform. And it is not merely from the Shastris and Pandits but too often those least versed in our ancient laws that outcry proceeds of sacrilege and of “religion danger” whenever any proposal of reform is mooted.
Reverence is one thing; blind worship quite another. To the lawyer at least it should be plain that the laws of Manu are neither more or less sacrosanct than the law of Solomon or the Twelve Tables. In short, we recognized that the Hindus are no longer the isolated community they were in those ancient times and that now even Hindu society is not static but dynamic. Like other societies it must in course of time come forward or lag behind. We desire that it should progress. If we find our laws crystallizing and favouring the institutions which have decayed and which prevent progress, we conceive it our duty to strive to alter them in the right direction. As to the rate of progress, opinions may reasonably differ. As to the direction there need be no serious difference of opinion.
Nevertheless, the flowing tide is with us. We are realising that unless we reform ourselves, our institutions, and to some extent our laws, we shall degenerate still further and shall perish even though all the while we lay to ourselves the flattering unction that we are the most spiritual people on earth, while in reality we prove ourselves amongst the weakest and least fitted to survive in the struggle of nations. We seek reform not because we will, but because we must. I have said enough. I hope to show that while we realise the necessity for reform we do not underrate the difficulties of the task before us. Without further loss of time we must equip ourselves to carry on the work before us.
The following resolution among others was proposed by Mr. Jayakar and duly passed:
This conference resolves that the time has come for this Association to take up the work of research into Hindu Law with the view of indicating what changes are necessary in the rules of Hindu Law as at present administered so as to bring them into accord with the requirements of the modern Hindu society in such a manner as not to be in direct conflict with the true spirit of Hindu Law.
Revolt, 5 June 1929
