DOI Seite / Zitierlink:
https://doi.org/10.11588/diglit.49827#0148
MODERN LAW OF PARTITION.
133
introduce both of these rules into that text, and has been Lecture
followed in this by Madhava (13-14), Apararka, Mitramigra1 VI-
and others. Devannabhatta,2 Kamalakara, Nilakantha,3
Vachaspatimigra4 and others rejecting this forced construc-
tion, consider the whole text of Yajna^alkya as applicable
to the case of a posthumous son, the pregnancy of whose '
mother had been unknown at the time of division. Jimuta-
vahana (Chapter VII.) differs from these writers so far that
he refers the texts of Yajnavalkya and Vishnu to an illegal
division of hereditary property by the father, whereas the
other texts, according to him, apply to a division of self-
acquired property by the father. This opinion is Connected
with the peculiar views of Jimutavahana regarding the
illegitimacy of a partition made while the mother is still
capable of bearing children.
The mode of division in the case of offspring of mixed Caste dis-
marriages continued to form a subject of discussion with tinctl0ns-
the later Jurists, though such marriages had become
obsolete long before their own time. The only case in '
which the Law of Partition is influenced by caste distinc-
tions is where a Cudra has begotten a son upon a Dasi.
The partition and rights of such persons will be discussed
in the Law of Inheritance.
The maintenance of those female family members who Rights of
are not specifically named as sharers in the texts on parti- feiuales-
tion, and of disqualified males and the defrayment of the
marriage expenses of unmarried females, is a charge on the
estate. The Law of Maintenance, as it is administered by
the Courts, has been chiefly developed by statute. The
scanty provisions of the Indian Jurists on this subject are
scattered through the Chapters on Partition, Succession of
Females, Reunion, Exclusion from Inheritance, and Criminal
Law. How far the Indian Law goes in providing for females
connected with a family may best be gathered from the
fact that even concubines and married women who do not
rank as legitimate wives have a claim to be maintained.
This rule, it is true, has been deduced from the old texts
by means of an extremely forced interpretation of those
texts in which the duty to maintain a Widow is declared.
1 Viram. 92—94. 2 Smritich. XIII. 17—19. 3 Mayukha IV. 4. 35-36.
4 Vivadach. 275 (Tagore). It should be observed, however, that these
writers have recourse to divers contrivances of a similarly artificial
character in order to remove the seeming conflict between the first and,
second hemistichs of this text.
133
introduce both of these rules into that text, and has been Lecture
followed in this by Madhava (13-14), Apararka, Mitramigra1 VI-
and others. Devannabhatta,2 Kamalakara, Nilakantha,3
Vachaspatimigra4 and others rejecting this forced construc-
tion, consider the whole text of Yajna^alkya as applicable
to the case of a posthumous son, the pregnancy of whose '
mother had been unknown at the time of division. Jimuta-
vahana (Chapter VII.) differs from these writers so far that
he refers the texts of Yajnavalkya and Vishnu to an illegal
division of hereditary property by the father, whereas the
other texts, according to him, apply to a division of self-
acquired property by the father. This opinion is Connected
with the peculiar views of Jimutavahana regarding the
illegitimacy of a partition made while the mother is still
capable of bearing children.
The mode of division in the case of offspring of mixed Caste dis-
marriages continued to form a subject of discussion with tinctl0ns-
the later Jurists, though such marriages had become
obsolete long before their own time. The only case in '
which the Law of Partition is influenced by caste distinc-
tions is where a Cudra has begotten a son upon a Dasi.
The partition and rights of such persons will be discussed
in the Law of Inheritance.
The maintenance of those female family members who Rights of
are not specifically named as sharers in the texts on parti- feiuales-
tion, and of disqualified males and the defrayment of the
marriage expenses of unmarried females, is a charge on the
estate. The Law of Maintenance, as it is administered by
the Courts, has been chiefly developed by statute. The
scanty provisions of the Indian Jurists on this subject are
scattered through the Chapters on Partition, Succession of
Females, Reunion, Exclusion from Inheritance, and Criminal
Law. How far the Indian Law goes in providing for females
connected with a family may best be gathered from the
fact that even concubines and married women who do not
rank as legitimate wives have a claim to be maintained.
This rule, it is true, has been deduced from the old texts
by means of an extremely forced interpretation of those
texts in which the duty to maintain a Widow is declared.
1 Viram. 92—94. 2 Smritich. XIII. 17—19. 3 Mayukha IV. 4. 35-36.
4 Vivadach. 275 (Tagore). It should be observed, however, that these
writers have recourse to divers contrivances of a similarly artificial
character in order to remove the seeming conflict between the first and,
second hemistichs of this text.