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less apparent. It seems to me that it would be impossible to enforce the law, except by means of an inquisitorial investigation of the most private affairs of domestic life which would be considered intolerable. In the absence of complaint by the wife (and she would never complain), how could any one be allowed to go into a man's house, in order to ascertain whether he had consummated his marriage before his wife was apta viro? And then there is the difficulty to which I have already referred, that in most cases it is almost impossible to prove conclusively whether a girl is 10, or 11, or 12 years old.
I cannot help thinking that a law against infant marriage would be unpopular. Premature consummation is bad, and the prohibition of the remarriage of virgin widows is bad; but these are not necessary accessories of Infant Marriage, and apart from these accessories, Infant marriage is not necessarily a bad institution, or at all events not so bad as to render legislative interference desirable.
As regards consummation, I should not be disposed to alter the provisions of $375 of the Penal Code......But I should not object to making it an offence, punishable with a milder punishment than that of rape, to have intercourse with a woman between the age of 10 and 12. This, I think, is the law in England.
107. H. H. MAHARAJA SYAJI RAO, GAEKWAR OF BARODA G.C.S.I.-I do not doubt that your programme is a workable one, and although no hard or fast rules can be laid down to control the evils, the natural leaders of the community can lend the weight of their influence in discouraging such practices; and my firm belief is that before the general public can take such an advanced view, the female population particularly must be brought under the civilizing influence of the school. Though I am fully aware that it is difficult to increase the age, I would not like to see it under full thirteen for consummation.
108. HONORABLE MR. JUSTICE WEST,-Groups of enlightened and influential Hindus at the chief centres of population
might unite to discountenance infant marriages by refusing to attend them and by exerting their social authority to prevent them. They might also diffuse a cheap and inoffensive literature exposing the evils of premature marriage. Individual labourers in ths same cause, may well employ themselves in trying to substitute a new set of conceptions in the mind of the people, for the gross realistic notions of which the existing marriage system is a natural outgrowth
The duty of a Government in such a matter is not violently to subdue the nature and instincts of its subjects to its own notions of propriety, but rather to watch for the rise of moral and beneficial tendencies, and then to foster their development by a process of natural growth and at the earliest fitting moment give them form and permanence in a law. This is why a marriage law as to infants and widows should be so framed as to admit of gradual introduction, according as different castes and classes gradually awaken to a higher perception of the moral elements of the matrimonial relations. Increased strength of character and purity of life amongst those brought under the improved law would make willing converts of crowds who would deeply and not quite unreasonably resent any compulsion.
remedy the two
Mr. West's draft of an act to evils is as follows. He says that it is an endeavour to give a first formal shape to Mr. Malabari's views, rather than to his own. "I am not certainly indifferent" he writes, "to the great evils that arise from infant marriages and from the enforcement of perpetual widowhood, but in all that concerns the domestic relations, the proper and even the possible sphere of operation of the positive law is very restricted, in comparison with the field that must be left to popular morality, the general sense of what is right and becoming."
AN ACT FOR THE PROTECTION OF HINDU INFANTS AND WIDOWS IN RESPECT OF MARRIAGE.
This Act shall apply to Hindu subjects of Her Majesty belonging to castes and classes whose desire in this behalf shall
have been ascertained by the Government and notified in the Government Gazette, and to all acts and omissions on their part or in relation to them hereinbelow provided for, whether the same take place within or without British India.
A marriage of a female under 12 or of a male under 14 may, on the attainment of that age, be adopted or renounced either by the person attaining it or by the other party to the marriage.
The adoption or renunciation of a marriage may be declared before a judge, a magistrate or a registrar of assurances who, on being satisfied of the identity of the declarant, and of his or her mental capacity, shall accept the declaration and shall furnish a certificate thereof to the declarant, on payment of such fee as shall be provided by the law or by the Government.
A marriage susceptible of adoption or renunciation under this Act shall be deemed to have been renounced unless within. three months from the attainment of the age of 14 or of 12 years it shall have been adopted by the parties thereto, as herein before specified.
Consummation of a marriage between a male of 14 years of age and a female of 12 years of age or upwards, acting voluntarily, shall be deemed an adoption of any marriage duly celebrated between the same persons before such consummation and not validly renounced.
The right and duties subsisting between married persons whose marriage may be renounced as hereinbefore provided, on account of their infancy, shall not extend to conjugal society or intercourse.
In the case of a female married and under 12 of years a ge sexual intercourse with her by her husband shall have the same legal character, and, in the cases provided for by the Indian Penal Code or other law, shall be subject to the same penalties as if no marriage subsisted.
Abetment of sexual intercourse prohibited by this or any other law under a penalty shall be deemed abetment of an offence within the meaning of the Indian Penal Code.
In the case of a marriage subject to renunciation under this Act no right to maintenance or residence, nor any claim to money or things of value arises to one of two spouses as against the other, or the property of the other during his or her life, but in the event of the death of either the rights of the other as to inheritance and maintenance shall be the same as if the marriage had not been subject to renunciation.
A widow shall not, by remarrying, incur, with referenee to her property derived from or through her deceased husband or her rights accrued in virtue of her marriage to him, any further or greater forfeiture or disqualification than she would incur by fornication committed with the person with whom she remarries.
Any person who, without her free, express and intelligent consent does any act towards the personal disfigurement of a female aged 12 years or upwards, by reason or under pretext of her being a widow, shall be answerable as for a civil injury in such damages as the court may award, provided that nothing herein contained shall be deemed to affect the provisions of the Indian Penal Code or other law in force relating to criminal force or any other offence thereby made punishable.
Whoever by threats, insults or menaces, or suggestions of divine displeasure or supernatural injury, endeavours to bring about or to prevent any marriage, contrary to the legal rights and discretion of the parties concerned, shall be subject to the penalties provided in Sections 506, 507 or 508 of the Indian Penal Code.
109. SIR WILLIAM MUIR.-I have always been strongly of opinion (and I think I expressed the same in the Legislative Council some 20 years ago) that the betrothal or marriage of minors should not be held binding at law unless consummated -that is that specific performance of the contract made by
parents or guardians should not be enforced. Possibly court action for damages against these might be allowed. What the form and mode of repudiation should be, or the precise action of one or other of the parties indicating that he or she receded from the contract, would require more careful thought than I have time to give to the subject at present (for I am away from home in the Highlands.)
But beyond such a measure I certainly would not at present go. I agree with very much of what Mr. Melvill says. I do not think that the advocates of further legislation have at all appreciated how impossible it would be to enforce laws such as are advocated, in the present state of habit and feeling. How possibly could the executive spy into the recesses of family life and the Parda. Just think of the terrible handle it would give to enemies of a family and to the Police. I believe that any such laws would be utterly inoperative excepting in mischief and evil in the existing state of society, and would altogether fail of securing the results you are aiming at.
But that is no reason why you should relax your efforts to reform the national sentiment, and gradually to change its habits. Macte Virtute. Go on in your great work and may God grant you success in it.
110. RIGHT HON'BLE LEONARD COURTNEY, DEPUTY SPEAKER HOUSE OF COMMONS.-Under a more aristocratic system there was greater readiness in imposing our ideas upon others, but whilst the democracy is ready enough to embody its ideas in domestic legislation, it has a real indisposition to govern other communities.
Your first and most difficult task is to influence opinion within India. You have recognized this and have set yourself to the labour, and I heartily wish you god speed in it.
Nevertheless having something of the older imperative temper, and feeling that in India, if anywhere, we have the responsibilities of power, I should like to see attempted such