DOI Page / Citation link:
https://doi.org/10.11588/diglit.49827#0295
280 EXCLUSION FROM INHERITANCE,
Lecture the other disabilities should not be applied to the case of
( the incontinent widow, although this' case is not discussed
in the Indian Digests in connection with exclusion from
inheritance, but in the Chapter on the Widow’s Succes-
sion. It may be Observed that the early Legislation of
India appears to have been more severe on the inconti-
nent widow than the era of the Commentators. The un-
published Smriti of Harita1 (62-63) contains two Clokas to
the effect that a wife, i. e., widow, may keep the property
while she remains chaste.2 In the opposite case, she shall
lose it and shall be given so much only as will preserve
her from starvation. An even more rigid rule is to be found
in the Smriti of Paragara, who says (Chapter X), that a wife
who has been unfaithful to her husband and has brought
forth a child after adulterous intercourse, whether in her
husband’s lifetime or after his death, shall be turned out
of the house. But neither of these two texts is quoted in
the modern compilations on law.
ntyis'Sper- Thirdly—The incapacity to inherit is purely personal,
sonal only. The legitimate sons of disqualified heirs take the share of
their father. This is the general rule, but there are several
traces of the existence of a stricter view which was
opposed to the marriage of disqualified heirs on principle.
Mann says (IX. 203): ‘ If the eunuch and the rest should at
any time desire to marry, their sons shall be heirs,’ and this
'at any time’ is interpreted by Kulluka as a hint that dis-
qualified heirs, as a rule, ought not to marry. Gautama
(XXVIII. 44) refers to the son of an idiot only. Narada
(XII. 31—38) gives a list of persons unfit to marry, which
closely resembles the list of disqualified heirs. ■ The same
author states as a necessary preliminary to marriage (XII.
<8—19), that a suitor shall be examined in order to ascertain
his manly vigour, and gives some curious details regarding
the signs by which the fact of potency and of the reverse
was thought to be ascertainable. Yajnavalkya, on the
other hand, endeavours to explain how an impotent man
even may have a son. This is why he says that even the
son of the wife (Kshetraja) of a disqualified man may in-
herit (II. 141). Most of the modern writers are agreed
about the eligibility of all disqualified heirs for marriage.
----
1 Cod. Haug. 53 of the Munich Library.
2 The second Cloka of Harita is quoted in the Mitakshara II. 1. 37 and
other compilations as shewing the widow’s right to inherit if she is
chaste.
Lecture the other disabilities should not be applied to the case of
( the incontinent widow, although this' case is not discussed
in the Indian Digests in connection with exclusion from
inheritance, but in the Chapter on the Widow’s Succes-
sion. It may be Observed that the early Legislation of
India appears to have been more severe on the inconti-
nent widow than the era of the Commentators. The un-
published Smriti of Harita1 (62-63) contains two Clokas to
the effect that a wife, i. e., widow, may keep the property
while she remains chaste.2 In the opposite case, she shall
lose it and shall be given so much only as will preserve
her from starvation. An even more rigid rule is to be found
in the Smriti of Paragara, who says (Chapter X), that a wife
who has been unfaithful to her husband and has brought
forth a child after adulterous intercourse, whether in her
husband’s lifetime or after his death, shall be turned out
of the house. But neither of these two texts is quoted in
the modern compilations on law.
ntyis'Sper- Thirdly—The incapacity to inherit is purely personal,
sonal only. The legitimate sons of disqualified heirs take the share of
their father. This is the general rule, but there are several
traces of the existence of a stricter view which was
opposed to the marriage of disqualified heirs on principle.
Mann says (IX. 203): ‘ If the eunuch and the rest should at
any time desire to marry, their sons shall be heirs,’ and this
'at any time’ is interpreted by Kulluka as a hint that dis-
qualified heirs, as a rule, ought not to marry. Gautama
(XXVIII. 44) refers to the son of an idiot only. Narada
(XII. 31—38) gives a list of persons unfit to marry, which
closely resembles the list of disqualified heirs. ■ The same
author states as a necessary preliminary to marriage (XII.
<8—19), that a suitor shall be examined in order to ascertain
his manly vigour, and gives some curious details regarding
the signs by which the fact of potency and of the reverse
was thought to be ascertainable. Yajnavalkya, on the
other hand, endeavours to explain how an impotent man
even may have a son. This is why he says that even the
son of the wife (Kshetraja) of a disqualified man may in-
herit (II. 141). Most of the modern writers are agreed
about the eligibility of all disqualified heirs for marriage.
----
1 Cod. Haug. 53 of the Munich Library.
2 The second Cloka of Harita is quoted in the Mitakshara II. 1. 37 and
other compilations as shewing the widow’s right to inherit if she is
chaste.