14. BABU HORI MOHUN CHANDRA.-It has been proved that the custom of remarriage of widows was in force in our society.............It is highly probable that the rite of Sati began when the remarriage of widows was abolished. It is a fact I believe, that the burning of widows on their husbands' funeral pile was unknown in the Vedic period and in the words of Dr. Hunter........................ "the verses in the Veda which the Brahmins afterwards distorted into a sanction for the practice have the very opposite meaning.” SECTION IV. NORTH-WEST PROVINCES AND 15. CHIEF SECRETARY TO GOVERNMENT N. W. P. AND ·OUDн.—It has been pointed out by Mr. Mayne in his treatise on Hindu Law and Usage (pages 86 & 87) that the prohibition against the second marriage of women upon widowhood has no foundation either in early law or custom. 16. HONOURABLE D. G. BARKLEY, MEMBER OF THE LEGISLATIVE COUNCIL, PUNJAB GOVERNMENT.-Expulsion from caste is not a civil injury,* though an attempt to give it * In a recent case (I. L. R. 10 Mad. 133) the Madras High Court upset a decision of Mr. Muttusami Ayyar and ruled that a custom or usage of a caste to expel a member in his absence without notice given or opportunity of explanation offered is not a valid custom-that it is open to the Court to determine whether an expulsion from caste is valid, and that if the person excommunicated had not in fact violated the rules of the caste but had been expelled under the bona fide but mistaken belief that he had committed a caste offence, the expulsion was illegal and would not affect his rights. Mr. Justice Kernan said. "The maxim audi alteram partem contains a fixed principle of justice. It prevails in all countries subject to the British rule..........The caste institution is not above or outside the law. The usages and customs of caste exist only under and not against the law. opposed to the law it cannot be a Chapter 2. Section 2 IX. on Usage. Whenever a custom or usage is good custom. Colebrook, B. I. Practice which is founded on undue publicity may be, see I. L, R. 6 Mad 38 .........A caste is really, from the point of view of the State, very much in the position of a voluntary association, and people who wish to continue to belong to it must submit to its rules, while it can only punish those who will not do so by expelling them, unless they submit to some minor penalty in order to avoid expulsion. It cannot take away any civil rights-see Act XXI. of 1850. SECTION V. EXTRACTS FROM OPINIONS 17. SERGEANT ÁTKINSON,-It is clear that unjustifiable expulsion from caste and the like are good causes of action in a Civil Court of Justice. And why the poor widow, amongst other sufferers from the tyranny and oppression of the Punchayet, who marries again, and who is on that account made an outcaste, does not appeal to the Laws of the land for redress of her grievances (an appeal, let her be assured, never made in vain) is to me inexplicable. Does it arise from ignorance of her legal rights, from fear of appearing in a Court of Justice, or because she is inops consilu.........I have not cited from my MSS. the legal authorities that justify me in saying that a suit for damages will lie for restoration to caste and the like; for no lawyer will dispute the proposition and laymen will not expect it of me. 18. A. O. HUME.-As to the former (virgin widows) I have satisfied myself by a careful study of all the authentic and authoritative texts produced on both sides, that there is law prevails. Hence usage inconsistent therewith must be abrogated. A practice must be reasonable... ..Immemorial custom cannot prevail against the principle contained in the maxim "audi alteram partem.' See Williams vs. Lord Bagot 3 B. and C. 786. It is thus clear that a widow cannot be expelled from caste, without being heard in the first instance in her defence. ....... ... nothing in the Shastras to prevent their remarriage... For the remarriage of fully married or real widows, I cannot say as much. I entertain no doubt that according to the Shastras, the remarriage of such involved a loss of caste. I regret that this should be so, but I believe it to be the case. CHAPTER VIII. REMEDIES FOR ENFORCED WIDOWHOOD. SECTION I. MADRAS PRDSIDENCY. 1. K. KRISHNASWAMY RAO, CHIEF JUSTICE, TRAVANCORE.-The best possible aid which the Government can give seems to me to be periodical donations to the Widow Marriage Fund upon such conditions as would not encourage idelness. 2. C. RAMCHANDRA AIYAR, SUB JUDGE, MADURA.The decision law allows a Hindu widow to lead with impunity a life of open prostitution retaining possession of her husband's property while the hallowed tie of matrimony entails forfeiture of property according to Act XV. of 1856. This is cetainly an anomaly which ought to be remedied. It must be enacted that adultery on the part of the widow is a positive disqualification to hold property inherited from her husband. The Criminal law of the country should also be amended so as to make open excommunication by priests and gurus and others, of those that contract a second marriage and their relations penal. They should also be protected from exclusion from public temples and public tanks and rivers. 3. C. SUBBARAYA AIYAR, B.A., B.L., THIRD JUDGE APPELLATE COURT, ERNACOLLUM.-(a) The law laid down in KeryKolitany vs. Moneeramkolita (I. L. R., V. Cal. 776) should be amended in accordance with the views of Mr. Justice Dwarkanath Mitter, in other words an unchaste widow should be deprived of her inheritance. (b) The criminal law of the land may be so amended as to make it a penal offence on the part of priests and gurus to excommunicate publicly those that contract second marriages: and their relations. (c) A statutory declaration that the rights of property as against husband and wife are inchoate till nuptials. (d) Active sympathy on the part of Government with the objects of voluntary associations. 4. S. SUBBRAMANIA AIYAR, VAKIL, HIGH COURT.-Alienation by will by a Hindu coparcener of his undivided share to provide for his wife, daughter and sister is, I believe, not legal, and I think that the aid of the legislature can be sought for to legalize it. This rule will much tend to improve the position of women by making them far less dependent on their male relations than they are now. The modification which has been already introduced by decided cases in respect of alienations by coparceners is so great that the granting of the testamentary power recommended will not be looked upon as an undesirable innovation. 5. M. TILLAINAYAGAM PILLAI, DEPUTY COLLECTOR, MADURA,―There is............one point in which Government interference will not, in my opinion, go much against the feelings of the people. They may pass an Act prohibiting the priests from excommunicating a widow who may choose to remarry, and her husband and others who may sympathise or associate with her. I do not see how the priests who have been permitting marriages between persons within the degree actually prohibited by the Smritis i.e. marriage between a man and his sister's or paternal aunt's or maternal uncle's daughter, can claim any right to interfere with widow marriages in favour of which authorities are not wanting. 6. NANDSHANKAR, ASSISTANT JOINT ADMINISTRATOR, RAJPIPLA-Let the isolated cases of widow remarriage which now and then occur prepare in some way the minds of the orthodox, let the leaders of society raise their voice against this inhuman custom, let poets sing the miseries and horrors of enforced widowhood and melt their audience into tears with the recital of the wrongs of the widows, let the school-masters, lecturers and authors of books and pamphlets inveigh as vehemently as they can against this evil-let associations be formed to ventilute their grievances and afford direct and indirect encouragement to the cause, let outside influence be exercised and gentle persuasion be tried, and in short let all legal measures be adopted to further the end in view, and in process of time the condition of Hindu widows will be ameliorated and the dreaded interdict will for ever be removed. 7. JOTEERAO GOVINDRAO PHULAY.-I propose that no barbers should be allowed to shave the unfortunate Brahmin widows. 8. GURSHIDAPA VIRBASAPA-I say that these evils can be easily put down by Government with the assistance of the educated natives because no respectable individual would wish, if he could help it, to have an immoral woman in his house, and because the spiritual guides who have the power of excommunication will yield to the educated natives such as merchants, Vakils and Government servants who contribute largely towards the maintenance of these guides. If however Government are not inclined to go this length then let the educated Natives come forward in a body, and have widow marriages performed in their own houses at first and I am sure the orthodox will soon follow suit. If the educated natives are afraid of losing their kith and kin and their dear and near (and they will have to lose some or all at the beginning by adopting the course indicated above, and no great reforms can be effected without some such sacrifice). then let Government and the educated natives strive hard to stimu |