Report No. 83
II. Hindu Law
Ancient Hindu Law.- Rules laid down in the legal system on this subject are not new to India. In ancient India, infants and students were entitled to the special protection of the king, until the attainment of majority by the former and until the completion of study by the latter. The properties of minors were to be protected1. The duty of the king to protect his subjects thus especially extended to such persons.
According to the Manusmriti,2 the king shall protect the inherited (and other) property of a minor until he (the minor) has returned (from his teacher's house) or until he has attained majority.
"The minority ends with the sixteenth year".3
The parents patrae and its rationale.- In one of the comments on the Bill which led to the present Act, the role of the Courts in regard to appointment of guardians has been beautifully deduced from the duties of the king,5 and also sought to be supported by reference to some of the ancient Indian law-givers. A verse of Baudhayana has also been quoted-
"The King is bound to defend his subjects, their goods and chattels, lands and tenements.'
The comment has further observed4-
"Infants are incapable of taking care of themselves and are therefore peculiarly under the protection of the king. It is impossible for the king to do so per se in each individual case. He therefore delegates this care to his courts of law and equity, who exercise it by appointing guardians or curators, by guiding and controlling their acts and limiting may-abrogating-the rights of natural guardians in some instances.
Besides this, though the law imposes upon the father a duty in connection with his children and gives him credit for ability and inclination to execute it, yet that presumption, like all others, would fall in particular instances, and if an instance occurred in which the father was unable or unwilling to execute that duty or was actively proceeding "against it, of necessity the Crown must place somewhere a superintending power over those who cannot take care of themselves-vide Powell v. Cleaver."
Dr. Rattigant's view.- Dr. Rattigant's views are also of interest5 as to the position in ancient India-
"Looking at the question from a legal aspect, it is to be observed that under both systems (Hindu and Muslim law), the ruling power is recognised as the supreme or universal guardian of all incapacitated persons,6 and it is only a natural corollary from this principle that in both systems we should also find a certain power of interference permitted to the sovereign in regard to the marriage of minors.
Thus, in a text cited in the Nirnaya Sindhu (the highest authority in the Benares and Mahratta schools on questions relating to marriage). Chapter III, page 32, and attributed to Manu, a girl who has no relatives competent to give her in marriage is commanded to repair to the ruling power. And Narada in his Institutes (Chapter XII, 22) lays down the same rule in these words:
"If there be none of these (i.e., relatives competent to give in marriage) the girl shall apply to the king, and, having obtained his permission to make her own choice, choose a husband for herself. So also in the Muhammadan Law in default of the agnates, certain uterine relations, and the moula-al-mawalah, the power of giving in marriage is vested in the ruler and the kazi (see Bailey's Muhammadan Law, page 46; Amir Ali's Personal Law of the Mohammedans, page 192)."
1. U.C. Sarkar Epochs in Hindu Legal History, (1958), pp. 58 and 72.
2. Manusmriti, VIII 27; Vol. 25, S.B.E., (1967), p. 237, and footnote 27.
3. Kulluka on Narada, III 37.
4. National Archives, File relating to Act 8 of 1890, p. 92 (correspondence).
5. Dr. Rattigan (in his comment on the Bill) National Archives, Legislative Department, Papers relating to Act 8 of 1890, Appendix Y, pp. 5-6.
6. Authorities in Hindu Law
(i) Colebrooke's Digest, Vol. III (London Ed.), p. 542;
(ii) Manu, Chapter VIII, verse 27. Muhammadan authorities
(i) Macnaghten's Principles of MI., Chapter VIII, para. 6: 12 Suth WR 337;
(ii) Das Maslemische Recht von Micolans v. Tornauiv, p. 153, Leipzig, 1855.