Chapter XIII: Part 13

There are certain peculiarities in the relation of father and son in India which have given rise to the suggestion that there is no relationship between sonship and marriage, and that the notion of sonship in India is founded entirely on that of ownership--ownership of the mother and a consequent ownership of the child. But the arguments by which this view is supported do not appear to be sufficient. The rights of a father over his son, and of a husband over his wife are, it is true, so far like the rights of ownership that both are in the nature of rights _in rem_--that is, they are available against any person who infringes them; but it is contrary to established usage to speak of rights over a free person as rights of ownership, and no one is prepared to say that the wife or child are slaves of the father. There is no reason for abandoning in India the ordinary view, that sonship depends on marital cohabitation between the father and mother. There are undoubtedly in certain special and exceptional cases methods of acquiring sons otherwise than by marital cohabitation. But these contrivances can only be resorted to when there is no son by marriage, and the fiction which, as we shall see, is resorted to to conceal the true nature of these contrivances, would be entirely meaningless, as would most of the rules which regulate them, if sonship in general was based entirely on ownership. There were at one time more contrivances than there are now for supplying the want of male issue by marriage. At one time a son could be begotten for a man who was dead by cohabitation of his widow with a member of his family or perhaps even with a stranger. This is generally looked upon as a survival of polyandry. But this practice, though alluded to in the Laws of Manu as still subsisting, is now entirely obsolete. So there was a custom at one time by which a father could appoint a daughter to raise up male issue for him. The head of the family could also, if he had no son born in wedlock, accept as his own any child born in his house whose mother was not known or not married. So he could accept as his own the son of his wife born before marriage, or the son of his concubine. In the last three cases he may have been, and probably was, himself the father. But none of these contrivances for procuring a son is now in use. The only contrivance now employed for procuring a son, in the absence of one born in wedlock, is by taking into the family the son of another man who is willing to part with him. This is called adoption. There are two kinds of adopted sons: one called dattaka and the other kritrima. The former is in use all over India; the latter only in Mithila. The following rules apply to the dattaka born of adoption: A man can only adopt who is without issue capable of inheriting his property, of performing the funeral ceremonies for himself, and of making the necessary offerings to his ancestors. A woman cannot adopt. But by the authority of her husband, and acting on his behalf, she may select a son and receive him into the family. A man can adopt a son without his wife's assent; nevertheless, the son when adopted becomes the son of both parents.

Hindus consider it a grievous misfortune that the line of male descent should be broken. The due performance of the sacrificial offerings to the dead is thereby interrupted. Probably this explains the great latitude given in some parts of India to the widow to adopt a son on behalf of her husband in case he has died sonless. There is a text which says, "Nor let a woman give or accept a son unless with the assent of her lord." But the lawyers of western India do not consider that any express permission to adopt is necessary, and take it for granted that she always has that permission. In Southern India, also, the widow may adopt without express permission, but the sapindas must give their sanction to make the adoption valid. Elsewhere the words have received their natural interpretation, namely, that the husband must in some way indicate his intention that his widow should have authority to adopt. The only person to whom an authority to adopt can be given is the wife or widow; and no widow can be compelled to exercise her power to adopt if she does not wish to do so. The father has absolute power to give away his son in adoption even without the consent of his wife. But her consent is generally asked and obtained before the son is given. After the father's death the widow may give a son in adoption. The rule which in former times rendered it necessary that the nearest male sapinda should be adopted is obsolete, and the adoption of a stranger is valid, although nearer relatives otherwise suitable are in existence. A man may adopt any child whose mother he could have married if she had been single; if he could not have done so, then he cannot adopt her child. The reason given in the text is that the adopted son must bear the resemblance of a son. This recalls the _dictum_ of the Roman law--_adoptio naturam imitatur_. The adopted son and the adopting father must be of the same caste. The period fixed for adoption by the three higher castes is before the ceremony of upandyana, or investiture of the child with the thread which these castes always wear over the left shoulder. For Sudras, who have no thread, the period is prior to the marriage of the child. There has been much difference of opinion as to whether an only son can be given and received in adoption. It is now settled that the texts which discountenance this adoption do not constitute a prohibition which the law will enforce.

There is sometimes a difficulty in ascertaining whether or no an adoption has actually taken place. There must be a final giving and receiving of the child in adoption, and for Sudras nothing more is required. For the twice-born classes it is not finally settled whether any religious ceremony is actually necessary in order to render the adoption valid. But some religious ceremony in almost all cases accompanies the adoption, so that the absence of any such ceremony will always raise a suspicion that the adoption, though it may have been contemplated and some steps taken towards it, had not been finally completed. If an adoption were in itself invalid, no acquiescence and no lapse of time could make it valid--just as an invalid marriage could not be similarly validated. But acquiescence by the family would be strong evidence of the validity of an adoption, and the rules of limitation by barring any suit in which the question could be raised might render the adoption practically unassailable.

The kritrima adoption is altogether different; although the adopted son performs the ceremonies for his adopting father's family, and has a right to succeed, he is nevertheless not cut off from his own family. A person of any age may be adopted, and he must be old enough to be able to consent to the adoption, as without this consent it cannot take place. In this form a female can adopt, and no ceremonies are required.

AUTHORITIES.--HINDU LAW: J. D. Mayne, _Hindu Law_ (London, 1892);
Colebrooke's _Treatises on the Hindu Law of Inheritance_ (Calcutta,
1810); Stokes's _Hindu Law Books_ (Madras, 1865); West and Buhler, _A
Digest of the Hindu Law of Inheritance_ (Bombay, 1878); Jogendra Nath
Bhattacharya, _A Commentary on Hindu Law_ (Calcutta, 1894); Rajkumar
Sarvadhikari, _Principles of the Hindu Law of Inheritance_ (Calcutta,
1882); Gooroodass Banerjee, _The Hindu Law of Marriage and Stridhana_
(Calcutta, 1896); Jogendra Chundar, _Principles of Hindu Law_
(Calcutta, 1906).

5. _Mahommedan Law._--The Mahommedan law is always spoken of by Mahommedans as a sacred law, and as contained in the Koran. But the Koran itself could not have supplied the wants even of the comparatively rude tribes to whom it was first addressed. Still less has it proved sufficient to satisfy the requirements of successive generations. No doubt the great veneration which Mahommedans have for the Koran has caused them to be less progressive than members of other religious creeds. But in human affairs some change is inevitable, and the law of the Koran, like other sacred laws, has had to undergo the supplementary and transforming influence of custom and interpretation, though not of legislation. This direct method of changing the law by human agency, natural and simple as it appears to us, is scarcely acknowledged by Orientals even in the present day, except in the rare instances in which it has been forced upon them by Western authority. But besides custom and interpretation, another influence of a special kind has been brought to bear upon Mahommedan law. Besides those utterances which the Prophet himself announced as the inspired message of God, whatever he was supposed to have said and whatever he was supposed to have done have been relied upon as furnishing a rule for guidance. This tradition (_sunna_) is only to be accepted if it can be traced up to a narrator at first hand, though it would be rash to say that the chain of evidence is always very strong. Mahommedans also, in support of a legal rule for which there is no direct authority, resort to the argument from analogy (_kiyas_). The principle involved in a rule for which authority can be quoted is extended so as to cover other analogous cases. There have also been accepted amongst Mahommedans, as authoritative, certain opinions on points of law delivered by those who were actual companions of the Prophet; these opinions are spoken of collectively under the name of _ijma_. Some of these methods of extending and modifying the law have produced changes which it would be very difficult to reconcile with a strict adherence to the language of the Koran (see the Introduction to the _Corps de Droit Ottoman_, by George Young; Oxford, 1905). The Mahommedans of India generally are Sunnites of the Hanafite school. The two principal authorities on Mahommedan law to which recourse is had by the courts in India are the Hedaya and the Futwa Alumgiri. The Hedaya was translated into English by Mr Hamilton. The Futwa Alumgiri was compiled under the orders of the emperor Aurungzib Alumgir. It is a collection of the opinions of learned Mahommedans on points of law. It has not been translated, but it forms the basis of the _Digest of Mahommedan Law_ compiled by Neil Baillie. The Mahommedan law, like the Hindu law, is a personal law. It is essentially so in its nature. Persons of any other religion are to a large extent outside its pale. And in India, in civil matters, its application has been expressly limited to Mahommedans. At one time endeavour was made to administer the Mahommedan criminal law as the general territorial law of India, but it had constantly to be amended, and it was at length abolished and the penal code substituted. To be a Mahommedan, and so to claim to be governed by the Mahommedan law, it is necessary to profess the Mahommedan faith.

Intestate succession.

All that we find on the subject of intestate succession in the Koran are certain directions as to the shares which certain members of the family are to take in the estate of their deceased relative. So far as they go, these are rules of distribution--that is to say, they depend, not on consanguinity only, but on certain equitable considerations, by which rules founded on consanguinity are modified. But these latter rules, though nowhere laid down in the Koran, still play a large part in Mahommedan law. There can be no doubt that they represent the pre-existing Arabian custom, which it was not the intention of the Prophet to displace, but only to modify. The claimants under these rules take whatever is left after the specific shares assigned by the Koran to individual members of the family have been satisfied; if in any case there are no such shares, they take the whole. The Arabic term for this class of heirs is _asabah_, which literally means persons connected by a ligament. The term used by English writers is "residuaries," but this description of them has the disadvantage that it entirely loses sight of the connexion on which the claim to succeed is based. They would be more correctly described as the "agnates" of the deceased, but the term "residuaries" is too firmly established to be displaced. Those persons who take a share of the property, under the specific rules laid down in the Koran, we call "sharers," and this word has acquired a technical meaning; it is not used to describe those who can claim a portion of the estate in any other way. It is hardly likely that females, or relatives through females, had any claim to the succession under any Arabian custom, nor, except so far as they are made sharers, are they recognized by the Koran as having a title to succeed. The proper description of this class of persons is zavi-ul-arham, i.e. "uterine kindred," and they have, in default of other heirs, established a claim to succeed. English writers have erroneously called them "distant kindred," but distance has nothing to do with the matter.

There is no right of primogeniture under Mahommedan law; there is a general preference of males over females, and if males and females take together as residuaries by an express provision of the Koran, each male takes as much as two females. Females are also expressly forbidden by the Koran to take more than two-thirds of the property; but in the application of these two rules the shares of the mother and the wife are not included. No person can claim to take any portion of the property who traces his relationship to the deceased through a living person, but this rule does not apply to brothers and sisters whose mother is alive. If several persons all stand in the same degree of relationship to the deceased, they take equally, _per caput_ and not _per stirpem_.

It will now be convenient to state the rules for finding which of the agnates take as residuaries of the deceased. These are, in ordinary circumstances, the male agnates only, and the rule in question depends upon a classification of the male agnates which is common in other parts of the world. Every family consisting of several generations of male agnates may be broken up into groups, each of which has a separate common ancestor of its own. Thus, suppose A to be the person from whom the descent is to be traced. A belongs to a large group of persons, all of whom are males descended from a common ancestor D. But A and his or her own male descendants form a smaller group, which we may call the group A. This is the first class of male agnates of A. Then suppose A to be the son or daughter of B, excluding those who are descendants of A, and as such included in the first class, the remaining male descendants of B will form the second class of male agnates of A. In like manner we get a third class of male agnates of A who are descendants of C, excluding those who are descendants of A or B; and a fourth class of male agnates of A who are descendants of D, excluding those who are descendants of A, B, or C. This classification can obviously be carried through as many generations as we please. Mahommedan lawyers adopt this classification with only one difference. Between the first and second classes they interpose a class consisting entirely of the direct male ancestors, which they call the "root," so that the male descendants of A (the person whose heirs are in question) would be the first class of residuaries. B, C, D, &c., would be the second class of residuaries; the male descendants of B, other than the descendants of A, would be the third class of residuaries; the male descendants of C, other than the descendants of B and A, would be the fourth class of residuaries, and so on. In order to find the residuaries who are to succeed, we have only to take the classes in their order, and of the highest class which is represented to select the nearest to the deceased. If there are several who are equidistant, they will take equally _per caput_.

The sharers are, of course, those to whom a share is assigned by the Koran. They are (1) the father, (2) lineal male ancestors, whom Mahommedans call the "true grandfathers," (3) uterine half-brothers, i.e. the half-brothers by the mother, (4) daughters, (5) daughters of a son, or other direct male descendant, whom we call daughters of a son how low and soever, (6) the mother, (7) true grandmothers, i.e. female ancestors into whose line no male except a lineal male ancestor enters, (8) full sisters, (9) consanguine half-sisters, i.e. half-sisters by the father, (10) uterine half-sisters, (11) the husband, (12) the wives. The right to a share and the amount of it depends upon the state of the family. Under Mahommedan law not only, as elsewhere, the nearer relative excludes the more remote, but there are special rules of total or partial exclusion arising out of the equitable considerations upon which all rules of distribution are based.

These rules are best shown by taking the case of each member of the family in turn, and at the same time it will be useful to explain the general position of each member. First, the sons. They take no share, but they are first in the first class of residuaries, and their position is a very strong one; they exclude entirely sisters and daughters from a share, and they reduce considerably the shares of the husband, the widows, and the mother. The position of the other male descendants is very similar to that of the sons. They are not sharers; they are residuaries of the first class, and will take as such if the intermediate persons are dead. They reduce the shares of some of the sharers, but not to the same extent as the sons. The father is a residuary of the second class, and the first in that class. But he is also a sharer, and as such is entitled to a share of one-sixth. He can take in both capacities. The father's father is also a residuary of the second class, and he is a sharer, entitled to a share of one-sixth, but of course he cannot take either as sharer or residuary if the father is alive. The position of any true grandfather is analogous. An only daughter takes as sharer one-half of the property, two or more daughters take one-third between them. But sons exclude daughters from a share, and they would get nothing. Naturally this was considered unjust, and a remedy has been found by making the daughters what are called "residuaries in right of their brothers," each daughter taking half of what a son takes. The mother gets a share of one-sixth when there is a child of the deceased, or a child of any son how low and soever; also when there are two or more brothers or sisters. In any other case her share is one-third. If, however, the wife, or the husband (as the case may be), and the father are alive, the share of the mother is only one-third of what remains after deducting the share of the husband or the wife. The brother is never a sharer. He is a residuary of the third class, and he excludes some sharers. The daughters of a son how low and soever get a share of two-thirds between them if there are several; if there is only one she gets one-half. But the daughters of a son are excluded by any direct male descendant who is nearer to the deceased than themselves, or at the same distance from him. If, however, they are excluded by a person who is at the same distance from the deceased as themselves, Mahommedan lawyers again say that they come in as residuaries in right of that person, each female as usual taking half as much as each male. Of course the daughters of a son may also be excluded by the daughters having exhausted the two-thirds allotted to females. A single sister takes a share of one-half; several sisters take two-thirds between them. Sisters are excluded from a share by any residuary of the first class, and their own brothers also exclude them, but in the latter case they take as residuaries in right of their brothers, each sister taking half what a brother takes. So, again, the sisters may be excluded from a share by the daughters or daughters of sons having exhausted the two-thirds allotted to females, and the residue would go to the nearest male agnate--that is, the uncle or the nephew of the deceased, or some more distant relative. To prevent this Mahommedan lawyers say that in this case the sisters are residuaries, basing their assertion upon a somewhat vague tradition. The share of the husband in the property of the wife is one-fourth if there are surviving children, one-half if there are none. The share of the widow in the property of her deceased husband is one-eighth if there are surviving children, one-fourth if there are not. The nearest true grandmother takes a share of one-sixth. If there are several equidistant, they take one-sixth between them. The uterine half-brothers take a share of one-third when there is only one, but they are excluded by any direct descendant and by any direct male ascendant. Uterine half-sisters are in the same position as uterine half-brothers. Consanguine half-brothers are residuaries of the same class as brothers, but only take in default of full brothers. Consanguine half-sisters take a share of two-thirds, or if there is only one she takes a share of one-half. But if there is a full sister also, the full sister takes one-half, and the consanguine sisters one-sixth between them. The consanguine half-sisters, like the full sisters, are excluded from a share by the children and the father of the deceased, and also by full brothers and consanguine brothers; but in the last case they come in again as residuaries, taking half what a brother takes.

The sharers must of course, unless excluded, be all satisfied before anything is taken by the residuaries. But the sharers may not only exhaust the property; there may not be enough to satisfy all the claimants. Thus, if a man died leaving a wife, a mother and two daughters, the shares are one-fourth, one-sixth and two-thirds, and the sum of the shares being greater than unity, they cannot all be satisfied. The difficulty is met by decreasing the shares rateably, in other words, by increasing the common denominator of the fractions so as to produce unity; hence the process is called the "increase." The converse case arises when the shares of the sharers do not exhaust the property, but there are no residuaries to take what remains. It has been doubted whether the residue does not fall to the government as _bona vacantia_. But it is now settled that the surplus is to be divided rateably amongst the sharers in proportion to their shares. The process is called the "return." The husband and the wife are excluded from the benefit of the return. If there are no sharers, the whole estate will go to the residuaries. If there are neither sharers nor residuaries, it will go to the (so-called) distant kindred. Their claim is strong on equitable grounds, as some of them are very near relations; such, for example, as a daughter's children or a sister's children. Nevertheless their claim has been doubted, and it must be admitted that there is no very clear ground upon which It can be based. They are not mentioned as sharers in the Koran, and it is not very clear how, as cognates, they could have been recognized by any ancient Arabian custom. However, their claim is now well established, and, in default of both sharers and residuaries, they succeed on a plan somewhat resembling that on which male agnates are classified as residuaries. If all the claimants fail the property goes to the government, but there is one peculiar case. Supposing a man dies leaving a widow, or a woman dies leaving a husband, and no other relative. There is then a residue and no one whatever to take it, as the husband and wife are excluded from the return. Strictly speaking, it would fall to the government as _bona vacantia_, but the claim is never made, and would now be considered as obsolete, the husband or wife being allowed to take the property.

Under Mahommedan law there are certain grounds upon which a person who would otherwise succeed as heir to a deceased person would be disqualified. These grounds are--(1) that the claimant slew the deceased by an act which, under Mahommedan law, would entail expiation or retaliation, and this would include homicide by misadventure; (2) that the claimant is a slave; (3) that he is an infidel, i.e. not of the Mahommedan faith. The second impediment cannot now have any application in India; the third has been removed by Act 21 of 1850. There is a rule of Mahommedan law that if two persons die in circumstances which render it impossible to determine which died first, as, for example, if both went down in the same ship, for the purposes of succession it is to be assumed that both died simultaneously.

Testamentary succession.

Mahommedan lawyers appear always to have recognized the validity of wills, and they are said to be recognized by a passage in the Koran. But the power of testamentary disposition is restricted within very narrow limits. It only extends to one-third of the property after the payment of debts and funeral expenses. There is no hint of this restriction in the Koran, and it rests upon tradition. If the one-third has been exceeded the legacies must be reduced rateably. The heirs, however, by assenting to the legacies, may render them valid even though they exceed the prescribed amount. There is no restriction as to the form of making a will; it may be either oral or written. A legacy cannot be given to an heir. Mahommedan law contains some very simple and wise provisions for preventing the reckless and often unjust dispositions of property which persons are apt to make upon the approach of death. A man who is "sick," that is, who is suffering from illness which ends in death, can only give away one-third of his property; and if he has also made a will containing legacies, the gifts and the legacies must be added together in the computation of the disposable one-third. So long as slaves had a money value, the value of the slaves liberated by a man on his deathbed was also included, which reminds us of the _Lex Furia Caninia_ of the Roman law. Another transaction by which the restriction on the testamentary power might be eluded is that called _mohabat_. By this is meant a transaction in the form of a sale, but which, from the inadequacy of the price named, is obviously intended as a gift. If such a transaction is entered into during "sickness," the loss to the estate would have to be reckoned in computing the disposable one-third. But the _mohabat_ transaction takes precedence of legacies. Another obvious mode of eluding the restriction on the testamentary power is the acknowledgment by a man on his deathbed of a fictitious debt; and it would seem that such acknowledgments ought to have been put under restriction. But Mahommedans, like other Orientals, have a useful, though possibly a superstitious, dread of leaving the debts of a deceased person unpaid, and it is this, no doubt, which has prevented their questioning the deathbed acknowledgment of a debt, even though there is every reason to believe it to be fictitious. All that has been done is to prescribe that debts of health should be paid before debts of sickness, and that debts cannot be acknowledged by a sick man in favour of an heir.

Administration.

When a Mahommedan dies, the funeral expenses and the creditors must first be paid; then the legatees, then the claims of the sharers, and, lastly, those of the residuaries; or, if there are neither sharers nor residuaries, those of the (so-called) distant kindred. The administration of the estate need present no difficulties if there are no disputes, and if there is some one empowered to take possession of the property, to get in the debts, to satisfy the creditors, and distribute the assets amongst the various claimants; and such a person may be appointed by a Mahommedan in his will, who will perform these duties. He is called a _wasi_, and he is in a position very similar to an executor under English law. But if there is no _wasi_, even if there are no disputes, there may be a good deal of trouble. It would have been in accordance with the spirit of Mahommedan law, and with general principles of equity, if an officer of the courts established under British rule had been regularly empowered to take possession of the property, and to take such measures as were necessary to ensure all the claimants being satisfied in their proper order. But this view of their powers has not been taken by the courts in India; recently, however, they have been enabled by legislation to grant the power of administering the estate to a single person.

Fictitious relationships.

There is scarcely any part of Europe or Asia where the creation of fictitious relationships is altogether unknown. In many cases the object of the creation is simply to obtain an heir. This is the object of adoption amongst modern Hindus, and it is this, no doubt, which has led some persons to speak of Hindu adoption as a rudimentary will. But adoption, as such, has never obtained a footing in Mahommedan law. The fictitious relationships which that law recognizes are based upon a different idea. There was in early times a widespread notion that every man must belong to some family either as a freeman or a slave. The family to which a slave belongs is always that of his owner, and that of a freeman is generally indicated by his birth. But a liberated slave has no family, at least no recognized family; and as he cannot stand alone, it was necessary to attach him to some family. Now, just as in Roman law the freedman became a member of his master's family under the relationship of _patronus_ and _cliens_, so in Mahommedan law a liberated slave becomes a member of the master's family under the relationship called _mawalat_. The object, of course, was to make the master's family liable for the consequences of the wrongful acts of the freed slave. As a compensation for the liability undertaken by the master's family, in default of residuaries of the slave's own blood (who can only be his own direct descendants), the master's family are entitled to succeed as what are called "residuaries for special cause." Of course the relationship of master and slave cannot now be created, and it is scarcely probable that any case of inheritance could arise in which it came into question. The relationship of _mawalat_ may, under Mahommedan law, also be created in a case where a freeman is converted to Islam. From a Mahommedan point of view he then stands alone, and would be required to attach himself to some Mahommedan family. The form of the transaction exactly indicates the nature of it. The party wishing to attach himself says to the person ready to receive him, "Thou art my kinsman, and shalt be my successor after my death, paying for me any fine or ransom to which I may be liable." In this case also the family of the person who receives the convert is entitled, in default of other residuaries, to succeed to him as "residuaries for special cause." But this transaction can have no meaning under English law, which does not recognize the joint responsibility of the family, and it is therefore also obsolete. In the case of _mawalat_ the rights of the persons concerned are not reciprocal. The person received gains no right of inheritance in the family into which he enters, and incurs no responsibility for their acts. An important part may still be played in Mahommedan law by the creation of relationships by acknowledgment. Any such relationship may be created, provided that the parentage of the person acknowledged is unknown; a person of known parentage cannot be acknowledged. The age, sex and condition of the person acknowledged must also be such that the relationship is not an impossible one; for, as was said in the Roman law, _fictio naturam imitatur_. The relationship thus constituted is, in the ease of a father, mother, child, or wife, complete, and must be treated for all purposes as having a real existence. But in any other case the acknowledgment, although good as between the parties thereto, has no effect upon the rights of other parties. The acknowledgment which we have just been considering contemplates the possibility at any rate, and in most cases the certainty, that the relationship is entirely fictitious, and has no connexion with any rule of evidence in whatever sense the term is understood. But there is a rule of Mahommedan law that, in cases where the paternity of a child is in dispute, the acknowledgment of the child by the father is conclusive. Whether this would now be maintained in face of the Evidence Act 1870, which deals with cases of conclusive evidence, and expressly repeals all previously existing rules of evidence, may be doubtful.

Marriage.

Marriage is a transaction based upon consent between a man and a woman, or between persons entitled to represent them. The result of the transaction is that certain family relationships involving legal rights and duties are created by the law, and these are not wholly under the control of the parties. But as to some of them, to some extent they may be regulated by agreement, and it is customary amongst Mahommedans at the time of a marriage to come to such an agreement. The only condition necessary to the constituting of a valid marriage between persons of full age is the consent of the parties. It is, however, the practice to conclude the transaction in the presence of two males, or one male and two female witnesses; and the omission of this formality would always throw a doubt upon the intention of the parties finally to conclude a marriage. It is even said that the absence of such witnesses would justify a judge in annulling the marriage. Minors of either sex may be given in marriage by their guardian, and the transaction will be irrevocable if the guardian be the father or any direct male ascendant. In any other case the marriage may be repudiated when the minor arrives at the age of puberty, but the repudiation is not effectual until confirmed by a judge of the civil court. A marriage may be conducted through agents. A woman can have only one husband; a man can have four wives; if he married a fifth the marriage would be annulled by a judge on the application of the woman. Mahommedans have a table of prohibited degrees within which parties cannot marry not very dissimilar to that in force in Great Britain. Nor can a man be married at the same time to two women nearly related to each other, as to two sisters. It is also considered that if a woman take a child to nurse she contracts a sort of maternity towards it, and that if a boy and girl are nursed by the same woman they become brother and sister, and, in a general way, it is said "that whatever is prohibited in consanguinity is prohibited in fosterage"; but it is doubtful whether the law goes so far. The widow, or a divorced woman, is not allowed to marry again during her _iddut_. This is a period of chastity which a woman is bound to observe in order to avoid confusion of issue. If she is pregnant it lasts until the child is born; if not, then in case of divorce it lasts through three periods of menstruation; if she is a widow it lasts for four months and ten days. A Mahommedan man cannot marry an idolatress, but Jews and Christians are not thereby excluded, because, although infidels, they are not idolatresses. A woman is forbidden by Mahommedan law to marry any one who is not a Mahommedan; but if the marriage took place in conformity with the Act of 1872 it might be valid, if it amounted to a repudiation by the woman of her Mahommedanism. It is important to remember, when considering the validity of a Mahommedan marriage, that a distinction is drawn between marriages which are simply void (_batil_) and those which can only be annulled by judicial decision (_farid_), for such a decision has no retrospective effect, so that the children already born are legitimate; and if no step is taken to obtain such a decision during the existence of the marriage, it cannot be questioned afterwards. What marriages are absolutely void, and what are only capable of being declared void, is not very clearly settled, but the evident leaning of Mahommedan law is against absolute invalidity, and there is strong authority for the opinion that no marriages are absolutely void except a marriage by a woman who has a husband living and such as are declared to be incestuous.

Divorce.

A Mahommedan has the absolute right to divorce his wife whenever he pleases without assigning any reason whatever for doing so. There are, however, very strong social reasons which have considerable influence in restraining the arbitrary exercise of the power. The power to divorce remains notwithstanding any formal promise by the husband not to exercise it, and it is even said that a divorce pronounced in a state of intoxication, or by a slip of the tongue, or under coercion, is valid. The divorce can, however, be revoked by the husband, but not after it has been three times pronounced, or after the _iddut_ has been passed by the woman. Nor can the husband remarry his divorced wife unless she has been again married, and has been again divorced or become a widow, and the intermediate marriage must have been consummated. The power to divorce a wife may be entrusted by the husband to an agent acting on his behalf, and this contrivance is sometimes made use of to enable a woman's friends to rid her of her husband if he ill-treats her. The husband may even empower the wife to divorce herself. If the husband or the wife should happen to die whilst the divorce is still revocable, he or she will inherit; and even a triple repudiation pronounced during "sickness," that is death-sickness, will not deprive the woman of her inheritance if the _iddut_ has not been passed. Of course there is nothing to prevent the husband and the wife from agreeing to a divorce, and to the terms on which it is to take place, and such an arrangement is very common. The treatment of the wife by the husband is not a ground upon which the marriage can be dissolved, but the impotence of the husband is a ground of dissolution. The courts in India consider that they have the power under Mahommedan law to grant a decree for the restitution of conjugal rights.

Dower.

Dower in Mahommedan law is in the nature of a gift from the husband to the wife on the marriage, like the _donatio propter nuptias_ of the Roman law, or the _morgengabe_ of Teutonic nations. It may be either "prompt," that is, payable at once, or the payment of it may be deferred, or it may be partly the one and partly the other. The amount of the dower and the time of payment ought to be settled by agreement before the marriage takes place; if this is not done there is some trouble in ascertaining the rights of the parties. It seems clear that a woman is entitled as a matter of right to what is called a "proper dower" if the dower is payable at once the woman may, before consummation, refuse herself to her husband unless it is paid; whether she can do so after consummation is doubtful. If the husband capriciously repudiates the wife before consummation, or the wife before consummation repudiates the husband for his misconduct, then half the dower agreed on must be paid. If it is her misconduct which has caused the repudiation, she is not entitled to anything. Deferred dower becomes payable on the dissolution of the marriage either by death or by divorce. Probably a judge, when called upon to dissolve or annul a marriage, could make reasonable stipulations as to the dower. The dower is the wife's own property, and, as the wife is entirely independent of the husband in regard to her property, she can sue him or his representatives for the dower like any other creditor. Mahommedans generally before marriage enter into a formal contract which regulates not only the dower, but various other matters under the control of the parties, such as the visits the wife is to pay or receive, the amount of liberty which she is to have and so forth.

Pre-emption.

The right of pre-emption under Mahommedan law is the right of a third person, in certain circumstances, to step in and take the place of a buyer, at the same price and on the same conditions as the buyer has purchased. It applies only to the purchase of real property, and it can only be exercised upon one of the three following grounds: (1) That the claimant is owner of property contiguous to that sold; (2) that he is a co-sharer in the property of which a share is being sold; (3) that he is a participator in some right over the property, such, for example, as a right of way over it. The claimant must announce his claim as soon as he hears of the sale, and he must follow up this announcement by a further claim in the presence of witnesses and of the seller, or, if possession has been transferred, of the buyer.

Shiah System.

Mahommedan law, so far as it is administered by the courts of British India for Sunnites of the Hanafite school--that is, for the great bulk of Mahommedans--has attained a fair degree of precision, owing to the care bestowed on their decisions by the judges of those courts, and the assistance derived from Mahommedan lawyers. But much difficulty is experienced as soon as we come to deal with Mahommedans of any other description. No doubt in India any clearly-established custom prevalent amongst a well-defined body of persons would be recognized, or any rule of law founded upon texts which they accepted as authoritative. But it is not always easy to determine when these conditions have been satisfied. And to allow Mahommedans to set up a standard of rights and duties different from that of the bulk of their correligionists without this proof would lead not only to confusion but injustice. There is the further difficulty that Mahommedan law, as applied to any Mahommedans except those of the Hanafite school, has as yet been comparatively little studied by modern lawyers, so that very little that is certain can be said about it. There is, however, a considerable body of Shiites in India whose legal system undoubtedly differs in some material particulars from that of the Sunnites. The Mahommedans of Oudh are generally Shiites, and Shiah families, mostly of Persian descent, are to be found in other parts of India. The following points seem clear. A marriage which the parties agree shall last for a fixed time, even for a few hours only, is a valid marriage, and at the expiration of the time agreed on the marriage ceases to exist. The relatives of the deceased, whether male or female, and whether tracing their connexion through males or females, may be sharers or residuaries. Both as sharers and residuaries the children can claim to take the place of their parents in the succession upon the principle of what we call representation. If there are parents or descendants of the deceased, and the sharers do not exhaust the property, the surplus is distributed amongst the sharers of that class in proportion to their shares. If the property is not sufficient to pay in full the shares of all the sharers, the shares do not abate rateably; e.g. as between daughters and the parents, or the husband, or the wife of the deceased the whole deduction is made from the daughters' share.

AUTHORITIES.--(Mahommedan Law), Neil Baillie, _Digest of Mahommedan
Law_ (London, 1865); Sir R. K. Wilson, _Introduction to the Study of
Mahommedan Law_ (London, 1894); _Digest of Anglo-Mahommedan Law_
(London, 1895); Charles Hamilton, _The Hedaya translated_ (London,
1791); Syed Ameer Ali, _Lectures on Mahommedan Law_ (2 vols.,
Calcutta, 1891, 1894); Mahomed Yusoof, _Tagore Law Lectures_ (Calcutta
1895); Alfred v. Kremer, _Culturgeschichte des Orients_ (2 vols.,
Vienna, 1875). (W. Ma.)

INDIAN MUTINY, THE, the great revolt of the Bengal native army in 1857, which led to the transference of Indian government from the East India company to the crown in 1858. The mediate cause of the Mutiny was the great disproportion between the numbers of British and native troops in India, which gave the sepoys an exaggerated notion of their power; its immediate causes were a series of circumstances which promoted active discontent with British rule.

Disaffection in the Native Army.

During the century which elapsed between the victory of Plassey and the outbreak at Meerut, the East India company relied mainly on native troops with a stiffening of British soldiers--especially artillery--for the successful conduct of its wars. The warlike Hindu and Mahommedan races supplied excellent fighting material, when led by British officers, and the sepoy army took a distinguished part in every Indian battle, from Assaye to Gujarat. At the close of Lord Dalhousie's administration (1856) British India was held by some 233,000 native and some 45,000 British troops--roughly a proportion of 5 to 1. It was already clear to some of the men who knew India best that this was a dangerous state of things, though when the Mutiny broke out the relative numbers were 257,000 native to 36,000 British soldiers. It had long been a fundamental principle of Indian government that the sepoy would always be true to his salt--knowing, as Macaulay wrote in 1840, that there was not another state in India which would not, in spite of the most solemn promises, leave him to die of hunger in a ditch as soon as he had ceased to be useful. But the history of the sepoy army might have shown that this was an over-estimate of its loyalty. As early as 1764 it was necessary to stamp out mutiny by blowing thirty sepoys away from guns. In 1806 the family of Tippoo Sultan produced a dangerous mutiny at Vellore, which was nipped in the bud by the prompt action of Gillespie and his dragoons. In 1824 the 47th Bengal infantry refused to march when it was ordered for service in Burma, and after being decimated by British artillery was struck out of the army list. In 1844, after the disasters of the Afghan war had shaken the prestige of British arms in India, no less than seven native regiments broke into open mutiny over grievances both real and fancied; and this time the old stern measures were not adopted to stamp out military disobedience. Lord Ellenborough often said that a general mutiny of the native army was the only real danger with which the British empire in India was threatened, and his warning was solemnly repeated by Sir Charles Napier. A still more explicit warning was uttered by General Jacob, who declared in 1853 that the normal state of the Bengal army was a state of mutiny, and wrote to _The Times_ as follows: "There is more danger to our Indian empire from the state of the Bengal army, from the feeling which there exists between the native and the European, and thence spreads throughout the length and breadth of the land, than from all other causes combined. Let government look to this; it is a serious and most important truth."

Its causes in 1857.

The causes which, in the middle of the 19th century, were thus tending to sap the long-tried fidelity of the sepoy army were partly military and partly racial. The professional conditions of the sepoy's career, especially in Bengal, were no longer so tempting as they had been in the first generations of the company's rule. The pay and privileges of the sepoy were steadily being diminished, and the increased demands made on the army by the great extension of the company's territory were by no means grateful to the average Bengal sepoy. Owing to the silladar system, under which the Indian sowar provided his own horse and provender in return for a monthly wage, the Indian cavalry were almost to a man in debt, and therefore favoured any attempt to upset the existing régime, and with it to wipe out the money-lender and his books; and the general enlistment order passed in July 1856, for the purposes of the war in Persia, made the Hindu sepoys afraid of losing caste by crossing the sea.

The Indian government failed to take sufficient account of the social and religious feelings of their native soldiers, whilst a rigid insistence on the principle of seniority had greatly diminished the efficiency of the British regimental officers. Out of 73 mutinous regiments, only four colonels were found worthy of other commands. At the same time, there were deeper reasons for discontent with British rule, which specially affected, the classes from which the Bengal sepoys were drawn. Chief among these was Dalhousie's policy of annexation, which brought under British dominion such small states as Satara, Nagpur and Jhansi, and finally the kingdom of Oudh. The insistence on the right of lapse, i.e. the refusal to allow an adopted, son to inherit a native throne, and the threat of annexation on purely humanitarian grounds seriously alarmed the native princes of India, besides creating a class of malcontents, among whom the Nana Sahib, the adopted heir of the peshwa, made himself most infamous. The annexation of Oudh, which was the chief recruiting ground of the Bengal army, probably caused wider disaffection in the ranks of that army than any other act or omission of the government. There can also be little doubt that the social reforms of Lord Dalhousie and his predecessors had disturbed men's minds in Bengal. Thus the Brahmans were offended at the prohibition of suttee and female infanticide, the execution of Brahmans for capital offences, the re-marriage of widows, the spread of missionary effort and the extension of Western education. The Mahommedan zemindars were injured by the reassessment of the land revenue, which was carried through in the interests of the ryots, and the power of the zemindars was formidable, while that of the ryots was negligible; though it must be remembered that the peasantry as a whole gave no assistance to the mutineers. To all these causes must be added--not least important in dealing with orientals--the widespread feeling since the Afghan disaster that the star of the company was in the descendant, and that there was truth in the old prophecy that the British would rule in India for a bare century from Plassey (1757). Bazaar rumours of British reverses in the Crimea and in Persia increased the temptations for a general rising against the dominant race.

The greased cartridges.