History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v7.c96.s2.33
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v7.c96.s2.33
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v7.c96.s2.33.1
The third item in Lincoln's definition is 'for the people'. That is, the Government must look to the good of the people as a whole and not to that of any class or a community in the country. Modern democracy has come to mean parties and it has to work on decisions of the majority. It often happens that, there being several parties, no one party has an absolute majority over all other parties put together. It may often happen that one party secures 40% of the votes actually cast and the other parties (that differ in ideologies) secure, say 25, 20, 15, percent of the votes, then the first party with only 40 percent of the total votes cast rules, though it does not represent the majority of the whole country. The party system generally leads to a struggle for power and lowers the moral standards of the whole people, particularly when hardly one-fifth of the voters (both male and female) can read and write their own regional language. The present author does not hold that illiteracy necessarily means absence of intelligence. But, unless a man can read for himself and ponder over what he reads, he can hardly be a good judge of the pros and cons in relation to a measure or policy placed before the voters.
v7.c96.s2.33.2
Besides, the emphasis laid on standards of living without any direct reference to moral and spiritual values has already led to this result that in India the desire for material comforts and positions of power dominates almost every one and there is no corresponding urge or even idea to do one's best for producing goods. The laws are drafted in the English language. Most of the speakers in Parliament use English (a few only speak in Hindi) and complicated laws are said to have been passed by a majority or unanimously as the case may be. That country may be said to be the best governed which is least governed. There is a spate of legislation in the House of the People. In the seven years from 1950 to 56 nearly 450 laws were passed by the central legislature alone. Some of these laws vitally affect Hindus in their family relations and in other respects. A few examples only can be cited here. The Hindu Adoption Act went far beyond the ancient Hindu principles, which were two viz. that only a male could be adopted for purposes of spiritual benefit to the adopter and the person to be adopted should be in age and other matters like a son. Women could not adopt to themselves but a widow could adopt a son for the spiritual benefit of her husband. These principles have been thrown to the winds as will be seen from the criticisms of the present author above on pp. 1337-1338. But one thing must be mentioned. In some enactments affecting Hindu Law, customs have been abrogated;
v7.c96.s2.33.3
vide Hindu Marriage Act 25 of 1955, Section 4, Hindu Succession Act 30 of 1956, Section 4 (1) The Hindu Adoption and Maintenance Act (78 of 1956) prescribes that the person to be adopted must not be more than 15 years of age (section 10 item IV) and that there should be a difference of 21 years between a male adopter and a female adoptee and between a female adopter and a male adoptee (sec. 11 items iii and iv). But the provision in Sec. 10 is made subject to a custom to the contrary. It passes one's understanding why custom was allowed to prevail over the law in this case. The Hindu Marriage Act, 25 of 1955, has made sweeping changes of which the vast majority of Hindus are blissfully ignorant. Before the Act a Hindu could in theory (and rarely in practice) have two or more wives living at the same time and even an *anuloma* marriage (i. e. the marriage of a male of a higher *varṇa* with a woman born in a lower *varṇa*) was held to be invalid by some High Courts in India such as those of Allahabad and Madras Now under the present Hindu Marriage Act of 1955 the marriage is a monogamous marriage (section 5) and a person belonging to any caste may marry a woman of any caste how highsoever or lowsoever she may be by caste; and further marriages between spouses belonging to the Hindu, Sikh, Buddhist or Jaina religions are now declared valid.
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It was suggested, while the marriage Bill was in the Committee stage, that the provision as to monogamous marriages should become compulsory when a similar provision would be made applicable to Muslims (who under the Koranic law can have four wives at the same time) But this was brushed aside through fear of antagonizing Muslims Other provisions about Buddhists, Jains and Sikhs being Hindus for the purposes of the Marriage Act, being a sweeping one at one stroke, is likely to be resented by almost all illiterate Hindus and likely to lead to tension and bitterness in many rural families and to break-up of the family as a central and compact unit in Hindu society. The orthodox people do not like such mixed marriages. It is not unlikely that the orthodox sections in the country may join hands with the ignorant masses and set back the hands of the clock, when some years hence the ranks of the towering personalities of the Gandhi era whom people want to humour have become thin.²⁶⁴⁰