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interference or support is necessary, and I can see no other form for that support than a legislative measure.
105. KRISHNA BEHARI SEN M. A. I wish there were a common method of action struck out among the reformers of the various provinces. When you try to create political unity among the people why should there not be a unity in the programme of social reforms? I admit that it will be more difficult to reach unity in social opinions than in the political, still some co-operation is necessary, and it might have been attained in the present case.
106. Hon. Sır M. MELVILL C.S.I.-The bill drafted by Sir M. Melvill is as follows.
“1. Whoever has social intercourse with a woman, who is above the age of ten but under the age of twelve years, shall be punished with imprisonment of either description which may extend to two years, or with fine or both. 2. Whoever being the lawful guardian of a woman,
who is under the age of 12 years, knowingly permits her to have sexual intercourse, or does any act to facilitate her having sexual intercourse, shall be punished with imprisonment of either description which may extend to two years, or with fine or with both.
3. If the husband of any woman dies before she has attained the age of 12 years, the High Court or the District Court may, upon the application of such woman or of any person whom the Court may allow to appear as her next friend, declare the marriage to be null and void.
4. Before making such declaration the Court shall give notice of the application to, and shall hear any objections made by, the father, or if the father be dead, the mother of the woman by or on whose behalf the application is made.
5. Any person who, knowing that such a declaration has been made, does any act for the purpose of making it appear that such woman is a widow shall be deemed to have committed contempt of Court and shall also he liable to punishment under Section 188 of the Indian Penal Code.
6. Section 2 of Act XV of 1856 is repealed except in so far as it relates to maintenance. “ I do not think” wrote Sir Melvill “
you can expect the Legislature to go so far, unless you can induce the leaders of Hindu Society to memorialise Government on the subject."
The following extracts are taken from Sir Melvill's letters.
“If it can be done without causing general discontent, I see no strong objection to declaring by law that the marriage of girls below the age of 12 is invalid. This might do some good though I fear it would give rise to a good deal of trouble and some vexatious litigation in cases in which family property was in dispute. In England baptismal registers are conclusive proof of age : but in India it is very difficult to prove a person's age. In suits involving questions of family property between a widow and her male relatives, I fear there would be frequent attempts to prove that the marriage was invalid, and there would be much hard swearing as to age. widow might be deprived of her property in consequence, and in this way the law might be productive of injury ratherthan benefit to women.
If consummation could be prevented before the age of 12, it would certainly be most desirable. But could the law effect this ? At present consummation of marriage before the age of 10 is punishable. But in the whole course of my experience, I have never known such a case brought before the criminal courts. Why is this? The explanation must be either, that such cases do not take place, or that they are not discovered. The first explanation I think you do not admit and therefore you must fall back on the second. But if it is impossible to. prove that the law is broken, when the girl is under 10, it would be equally, or even more difficult to prove it, when the girl was between 10 and 12. I say “more difficult” because the visible injury to the girl herself, would be less serious and
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 legis. lative 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 tbe 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 at 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.
Mr. West's draft of an act to remedy the two evils is as follows. He says that it is
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, sholl 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 herein before provided, on account of their infancy, shall not extend to conjugal society or intercourse.
In the case of a female married and under 12 years of age 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.