History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.510
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.510
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It has further been seen how the ancient and medieval Hindu rules as to debts, adoption, partition and inheritance have been moulded for over a century by Legislation and by decisions of the Privy Council and the Courts in India. Many persons feel that the time has now arrived for the codification of Hindu Law. A Committee presided over by Sir B. N. Rau has prepared a draft code which attempts to codify certain branches of Hindu Law. From several quarters there has been vehement opposition to this draft code. The objections raised are many. It is not possible to deal here with the several objections in detail. But some of them which raise questions of fundamental importance will have to be briefly stated and answered. The first objection is that in view of Queen Victoria's proclamation of 1858 the Indian Legislature should not interfere with the customs and usages of the people that are part and parcel of the Hindu religious system. But this objection is hollow and unsubstantial and conveniently ignores what has happened during the last hundred years or so. All that the Queen proclaimed was: 'Firmly relying ourselves on the truth of Christianity and acknowledging with gratitude the solace of religion we disclaim alike the right and the desire to impose our convictions on any of our subjects. We desire it to be our royal will and pleasure that none be in any wise favoured, none molested or disquieted by reason of their religious faith or observances;
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but that all shall alike enjoy the equal and impartial protection of the law; and we do strictly charge and enjoin all those who may be in authority under us that they abstain from all *interference with the religious belief or worship of any of our subjects* on pain of our highest displeasure.' Notwithstanding the noble sentiments expressed here, the Indian Legislature both before and after the proclamation passed numerous laws that more or less impinged upon or affected the religious theories, sentiments and practices of millions of Hindus! The following is a list of some of the important laws of this character which will convince any one of the fact that people have always submitted to laws passed by the Governor-General or the Legislature that prevented them from carrying out their cherished ideas and practices: Regulation XVII of 1829 which declared the practice of *Satī* illegal and a crime punishable by the courts; the Caste Disabilities Removal Act (XXI of 1850); Hindu Widows' Remarriage Act (XV of 1856, which legalises the marriages of Hindu widows notwithstanding any custom or interpretation of the Hindu Law to the contrary); the Indian Penal Code (XLV of 1860, which makes sexual intercourse by a man with his own wife that is under thirteen years of age punishable as rape); the Child Marriage Restraint Act (XIX of 1929), which makes the marriage of a male below 18 and of a female below 14 punishable as a crime;
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the Hindu Inheritance (Removal of Disabilities) Act (XII of 1928) which sets aside the Mitākṣarā rules about exclusion from partition and inheritance except in the case of those that have been lunatics or idiots from birth; the Hindu Law of Inheritance Amendment Act (II of 1929, which enables the son's daughter, daughter's daughter, sister and sister's son to succeed under the Mitākṣarā in that order after the paternal grandfather and before a father's brother); the Hindu Gains of Learning Act (XXX of 1930); the Hindu Women's Rights to Property Act (XVIII of 1937, which enables the widow of a deceased member of a joint Hindu family to succeed to the interest of her husband in the joint family property and to succeed to her deceased husband's separate property for the same share as that of a son). The Privy Council claimed more than 70 years ago that 'the British Government by virtue of its sovereign power asserted, as the former rulers of the country had done, the right to visit endowments of this kind (viz. temples) and to prevent and redress abuses in their management' (*Rajah Muttu Ramalinga v. Perianayagum* 1 I. A. 209 at p. 232). Non-Hindu Judges of the Privy Council and the High Courts have been interpreting and laying down the Hindu Law for over a hundred years and on many points the law declared by them has thoroughly changed the law of the smṛtis and digests.
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If all this has been allowed to happen without hardly a demur, there is apparently no satisfactory or convincing reason why an elected Indian Legislature the majority of whose members are likely to be Hindus should not pass an Act dealing with Hindu Law.