History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1198

v4.c63.1198

¹¹³² In *Natha v. Chotalal* 55 Bom. 1 the son of a brāhmaṇa from a śūdra wife was held entitled to a tenth share in the estate of his father and uncle and that the remaining nine-tenths would go to the nearest agnate, and Manu and Yāj. are relied upon. But this would be opposed to the view of the Mayūkha that secondary sons are not allowed now and is also against the spirit of the warning given by the Privy Council to Judges of modern times over 75 years ago in *Collector of Madura v. Mootoo Ramlinga* 12 Moo. I. A. 397 at p. 436 "the duty of an European Judge who is under an obligation to administer Hindu Law is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal and has there been sanctioned by usage. *For under the Hindu system of law, clear proof of usage will outweigh the written text of the law*.' This passage (omitting the word "European") is quoted by the P. C. in *Atmaram v. Bajirao* 62 I. A. 139 where it is further held that in a conflict between smṛti texts and commentators the opinion of the latter prevails in the provinces where their authority is recognized. *Natha v. Chotalal* 55 Bom. 1 purports to follow *Bai Gulab v. Jivanlal* 46 Bom. 871. In both cases the parties came from (*Continued from the last page*) Gujerat where the Vyavahāramayūkha is of paramount authority. In both cases not a word is said about the proof of the usage of marriages between a brāhmaṇa and a śūdra woman taking place in Gujerat but reliance is placed solely on the recognition of *anuloma* marriages by Manu and Yājñavalkya, the strong condemnation of pratiloma marriages by both and the inference drawn from the comment of Vijñāneśvara and the remarks of Nīlakaṇṭha that anuloma marriages are not prohibited. With the most profound respect for the learned Judges who decided those two cases, it has to be said that they took up the position of legislators and did not merely interpret the Hindu Law in accordance with usage and ignored the text of the Mayūkha itself stating that all secondary sons (among which the son of a brāhmaṇa from a śūdra caste wife is included by Manu) except aurasa son (who is defined by Yāj. II. 128 himself and the Mit. as the son of a *wife of the same class*) and dattaka are forbidden in the present age. The decision in *Bai Gulab v. Jivanlal* was opposed to the considered view expressed by Chandavarkar J. in *Bai Kashi v. Jamnadas*, 14 Bom. L. R. 547 at p. 552 "From this gloss of the Mitākṣarā from which Nīlakaṇṭha expressed nowhere any dissent it is reasonable to infer that, according to the leading authorities on Hindu Law as recognised in this Presidency, a shudra wife is not permitted to a brahmin, a kshatriya or a vaishya" and to the decisions of some other High Courts in India (vide 28 All. 458 for example). It should not be supposed that the present writer is entirely against such marriages. What he is concerned to emphasize is that the Legislature should deal with these matters, that Judges should not assume the role of legislators and give rise to conflict of laws which are inevitable if the same kind of marriage is held valid by the Bombay High Court and invalid by the Allahabad or Madras High Court.