DOI Seite / Zitierlink:
https://doi.org/10.11588/diglit.68024#0278
270
unless they will help themselves. When the examination was conducted in Marathi and Guz-
erathi, they were no doubt at a disadvantage in the competition with Hindus; but for some
years the examination has been in English, and is therefore just as favourable to Muhammadans
as to Hindus. The High Court would very gladly see Muhammadan pleaders practising before
them, and Muhammadan Subordinate Judges appointed ; but the examination is the preliminary
step in both cases, and it is therefore impossible to admit Muhammadans either to the mofussil
Bar or to the Bench, unless they will educate themselves up to the necessary standard.
M. MELVILL,—2-4-82.
I entirely concur in Mr. Justice Melvill’s Minute.
C. SARGEANT.
C. G. KEMBALL.
And so do I. ‘
R. H. PINHEY.
Minute recorded by the Horible Mr. Justice Bayley.
I have read and fully concur in the Minute of Mr. Justice Melvill, dated the 2nd instant.
I propose to make the following remarks in addition thereto.
2. In paragraph 19 the memorialists call His Excellency the Governor General's attention
to what they describe as a“ serious grievance of the Muhammadans relating to judicial admini-
stration. ”
They say:—
“The frequent miscarriage of justice occasioned by the insufficient acquaintance generally possessed by
English and Hindu Judges with the principles of Muhammadan law has given rise to a certain feeling of dissatis-
faction and distrust among all classes of the Mussulman population in India. They allege, and not without
reason, that, since the abolition of the offices of Mofti and Kazi, officers especially authorised to interpret and ex-
pound the Muhammadan law to European Judges, the Muhammadan law has practically ceased to be administered.
Even where it is attempted to be applied and enforced, the attempt is always uncertain in its result. The major
portion of the Muhammadan law regulating the domestic relations is not recognised by the courts of justice in
India.”
3. I have no means of knowing what right a body of persons styling themselves the
‘ National Muhammadan Association,’ whose head-quarters are apparently at Calcutta, have to
profess to represent the Muhammadans in British India, who number upwards of 4-0 millions of
persons, if, indeed, they have any right to do so at all; nor do I know whether, having regard to
the course which in paragraph 26 of their memorial they recommend should be adopted in the
High Court of Bombay, viz., “ that a Muhammadan Judge should be appointed to assist the
European and Hindu Judges in administering properly the Mussulman law,” the memorialists
have made that recommendation after communication with any Muhammadans in this city.
4. I may here remark that Dr. Hunter in his work on “ The Indian Empire” (edition of
1882), Appendix V, page 548, gives the total number of Muhammadans and persons of Muham-
madan origin in the Bombay Presidency as 2,528,344. In the Administration Report of the
Bombay Presidency for the year 1880-81, Statistical Return, Appendix, Chapter 1, D (1),
the total number of Muhammadans, including th se in Sind, is given as 2,648,439, of whom
138,815 are set down for the town and island of Bombay (which, according to the census of
1881, contain 753,000 persons), and of whom a very considerable number are Khojas and Me-
mons, much of whose law ana usage is, as pointed out by Mr. Justice Melvill, like themselves,
of Hindu origin. In the “ Statesman’s Year Book for 1882,” revised after official returns, and
copies of which have just arrived in Bombay frmr England, it is stated at page 689 that the
Muhammadans in the Province of Bombay number 2,870,450, giving probably the results of the
census of 1881.
5. The grave allegations of the memorialists in paragraph 19 as to the frequent miscar-
riage of justice occasioned by the insufficient acquaintance generally possessed by English and
Hindu Judges with the principles of Muhammadan law, and that the Muhammadan law has prac-
tically ceased to be administered, so far as such allegations may be taken as applying to
suits brought and tried on the Original Side of the High Court of Bombay, are, in my opinion,
absolutely false and groundless.
I claim to be entitled to speak with some knowledge of the business of that side of the
Court, and that of the bite Supreme Court during the last year of its existence, as, from Janu-
ary 1861 to May 1869 (during the three latter years of which period I held the office of Her
Majesty’s Advocate General of this Presidency), I practised at the Bombay Bar, and from
1869 to the present time I have been on the Bench of the High Court, and have sat regularly
On the Original Side.
6. The number of suits involving Muhammadan law have been very few indeed, and the
decisions in those that come before the late Supreme Court or the High Court on its Original
Side, so far as I am aware, have never been questioned, or given the very slightest cause of
complaint.
unless they will help themselves. When the examination was conducted in Marathi and Guz-
erathi, they were no doubt at a disadvantage in the competition with Hindus; but for some
years the examination has been in English, and is therefore just as favourable to Muhammadans
as to Hindus. The High Court would very gladly see Muhammadan pleaders practising before
them, and Muhammadan Subordinate Judges appointed ; but the examination is the preliminary
step in both cases, and it is therefore impossible to admit Muhammadans either to the mofussil
Bar or to the Bench, unless they will educate themselves up to the necessary standard.
M. MELVILL,—2-4-82.
I entirely concur in Mr. Justice Melvill’s Minute.
C. SARGEANT.
C. G. KEMBALL.
And so do I. ‘
R. H. PINHEY.
Minute recorded by the Horible Mr. Justice Bayley.
I have read and fully concur in the Minute of Mr. Justice Melvill, dated the 2nd instant.
I propose to make the following remarks in addition thereto.
2. In paragraph 19 the memorialists call His Excellency the Governor General's attention
to what they describe as a“ serious grievance of the Muhammadans relating to judicial admini-
stration. ”
They say:—
“The frequent miscarriage of justice occasioned by the insufficient acquaintance generally possessed by
English and Hindu Judges with the principles of Muhammadan law has given rise to a certain feeling of dissatis-
faction and distrust among all classes of the Mussulman population in India. They allege, and not without
reason, that, since the abolition of the offices of Mofti and Kazi, officers especially authorised to interpret and ex-
pound the Muhammadan law to European Judges, the Muhammadan law has practically ceased to be administered.
Even where it is attempted to be applied and enforced, the attempt is always uncertain in its result. The major
portion of the Muhammadan law regulating the domestic relations is not recognised by the courts of justice in
India.”
3. I have no means of knowing what right a body of persons styling themselves the
‘ National Muhammadan Association,’ whose head-quarters are apparently at Calcutta, have to
profess to represent the Muhammadans in British India, who number upwards of 4-0 millions of
persons, if, indeed, they have any right to do so at all; nor do I know whether, having regard to
the course which in paragraph 26 of their memorial they recommend should be adopted in the
High Court of Bombay, viz., “ that a Muhammadan Judge should be appointed to assist the
European and Hindu Judges in administering properly the Mussulman law,” the memorialists
have made that recommendation after communication with any Muhammadans in this city.
4. I may here remark that Dr. Hunter in his work on “ The Indian Empire” (edition of
1882), Appendix V, page 548, gives the total number of Muhammadans and persons of Muham-
madan origin in the Bombay Presidency as 2,528,344. In the Administration Report of the
Bombay Presidency for the year 1880-81, Statistical Return, Appendix, Chapter 1, D (1),
the total number of Muhammadans, including th se in Sind, is given as 2,648,439, of whom
138,815 are set down for the town and island of Bombay (which, according to the census of
1881, contain 753,000 persons), and of whom a very considerable number are Khojas and Me-
mons, much of whose law ana usage is, as pointed out by Mr. Justice Melvill, like themselves,
of Hindu origin. In the “ Statesman’s Year Book for 1882,” revised after official returns, and
copies of which have just arrived in Bombay frmr England, it is stated at page 689 that the
Muhammadans in the Province of Bombay number 2,870,450, giving probably the results of the
census of 1881.
5. The grave allegations of the memorialists in paragraph 19 as to the frequent miscar-
riage of justice occasioned by the insufficient acquaintance generally possessed by English and
Hindu Judges with the principles of Muhammadan law, and that the Muhammadan law has prac-
tically ceased to be administered, so far as such allegations may be taken as applying to
suits brought and tried on the Original Side of the High Court of Bombay, are, in my opinion,
absolutely false and groundless.
I claim to be entitled to speak with some knowledge of the business of that side of the
Court, and that of the bite Supreme Court during the last year of its existence, as, from Janu-
ary 1861 to May 1869 (during the three latter years of which period I held the office of Her
Majesty’s Advocate General of this Presidency), I practised at the Bombay Bar, and from
1869 to the present time I have been on the Bench of the High Court, and have sat regularly
On the Original Side.
6. The number of suits involving Muhammadan law have been very few indeed, and the
decisions in those that come before the late Supreme Court or the High Court on its Original
Side, so far as I am aware, have never been questioned, or given the very slightest cause of
complaint.