Hindu Law

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Hindu Law

History of Hindu Law

In Dharmasastra there is no word such as ‘Hindu’. The word Hindu first appeared in
the Old Persian Language which was derived from the Sanskrit word Sindhu, the historic
local designation for the Indus River in the North-Western part of Indian Subcontinent.
Later it becomes a ‘Hindu’. This nation came to be known as ‘Hindustan’ and its people
as Hindu.
Hindu law applies to all persons who are Hindus but there is still no precise definition
of the term Hindu either in any statute or in any judicial pronouncement. However, the
question as to who is a Hindu can be understood in a different way. It can be taken as to
whom the Hindu law applies.
Section 2 of HMA states that the law applies to the following categories of persons:-
1. Any person who is a Hindu. Jain, Sikh or Buddhist by religion or by birth.
2. Any person who is not a Muslim, Christian, Parsi or Jew and who is not governed
by any other law.
Who is Hindu?
On the basis of the description of persons following persons are Hindus :-
1. Hindu by Religion:
Section 2(1) any person who is Hindu by religion in any of its forms or
development including a Virashiva, Lingayat or the follower of Brahmo,
Prarthana or Arya Samaj.

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Followers of Hindu Religion: Any person who follows Hindu religion either by
practicing it or by professing it is a Hindu. (Shastri Yajna Prashad v. Muldas
(1966).
Converts and Reconverts to Hinduism: Under the codified Hindu law any
person converted to Hinduism, Jainism, Buddhism or Sikhism is a Hindu. The
Supreme Court in Perumal v. Poonuswami, (1971) observed that a person may
be a Hindu by birth or by conversion. No formal ceremony of purification or
expiation is necessary to effectuate conversion.
2) Hindu by Birth:
When both the parents are Hindu: Children born of Hindu parents are Hindus.
Such a child may be legitimate or illegitimate. It is also immaterial that such a
child does or does not profess, practice or has faith in the religion of its parents.
ii) When one Parent is Hindu: When one of the parents of a child is Hindu and
he is brought up as a member of Hindu family, he is a Hindu. It is clear by the
explanation (b) of Section 2(1) of Hindu Marriage Act, 1955 that child's religion
is not necessarily that of the father. For instance a child is born of Hindu mother
and Muslim father. The child is brought up as a Hindu. Subsequently, mother
converts to Islam. Nonetheless the child is Hindu. In Ram Prasad v. Dahin Bibi
is a good example on the point. Also Meneka Gandhi Vs. Indira Gandhi, where
father of Sanjay Gandhi was Parsee and mother Indira Gandhi was Hindu. Held
that Sanjay Gandhi as Hindu because his one parent was Hindu and he was openly
brought up as a Hindu.
3) Persons who are not Muslims, Christians, Parsis or Jews: The codified
Hindu law lays down that a person who is not a Muslim, Christian, Parsi or Jew
is governed by Hindu law, unless it is proved that Hindu law is not applicable to
such a person. Those persons who are atheists or who believe in all faiths or in
conglomeration of faiths may fall under this class. Under the codified Hindu law
such persons will be Hindus for the purpose of the application of Hindu law.

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A) Shrutis
Shrutis, has taken from the word ‘Shru’ which literally, means that which was heard.
Shruti or Vedas are believed to contain the very words of Deity (God) revealed to sages.

B) Smrities
• It is derived from the word Smri which means what was remembered. It is
recollection of Rishis (sages) containing principle of Hindu Law which were
handed down to their successive generation. The Smrities are divided into
Primary and Secondary Smrities contained in Dharmasutra (Prose) and
Dharmashastras (Poetry).
• Principle Author of Dharmasutra: Gautama, Baudhyana, Harita, Vasistha and
Vishnu
• Principle Author of Dharamashastra: Manu, Yajnyavalkya, Brihaspati and
Narada.
• The exact number of Smrities is not definitely known, but Manu Smriti is the
earliest one.
• Although Smrities deal with rules of morality and religion, they are more secular
than the Shruties.
C) Commentaries and Digests
• After the Smrities, the next step in the development of Hindu Law was the
composition of a number of commentaries (tika) and Digests (Nibandha) based
upon the Smrities. They interpreted, explained and modified the customs laid
down in the Smrities.
• The writing of a particular Smriti is called commentary while the writing on
different smrities is called Digests. There are a number of commentaries and
digests but the main are-
i) Daya Bhaga by Jimutavahana (Digest on all code)
ii) Mitakshara by Vijnaneshwara (Commentary on Yajnavalkya Smriti)
• The commentaries are now considered to be more authoritative than the original
texts themselves.

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D) Custom
• Custom is a rule which, owing to prolonged usage has obtained the force of law.
Section 3(a) of HMA define custom as “As any rule which having continuously
and uniformly observed for a long time, has obtained the force of law. There are
three types of custom namely-
• i) Local Custom: Such customs belong to some particular locality, State or
District and they are binding on the inhabitants of such place.
• ii) Class Custom: These customs are of a caste or a sect of the community or of
the followers of a particular profession or occupation, such as agriculture, trade,
mechanical art and the like.
• iii) Family Custom: These customs relate to a particular family.
Essentials of Customs
• a ) It must be ancient
• b) It should be certain and continuous
• c) It should not be immoral
• d) It must be reasonable
• e) Must not be opposed to public policy
• f) It must not be forbidden by any express enactment of the legislature
A) Judicial Decisions
• During British regime in this country Hindu law was administered by British
judges with the help of Hindu Pandits because they interpreted the Sanskrit texts
for them to apply them to the dispute and to arrive at a decision. So the decision
of the higher courts becomes a law for the lower courts.
• Earlier the decision of Privy Council was binding on all courts.
• Today Supreme Court's decisions are binding on all courts, though Supreme
Court is not bound by its own decisions. The decisions of State High Courts are
binding on all subordinate courts of their respective states though decisions of the
one High Court are not binding on other High Courts.
B) Legislation
• Legislation is the modern source of Hindu law and has a colossal importance, in
the evolution and development of Hindu law. The Hindu law has been reformed
and modified by the legislature through various enactments in this regard. The
British government itself passed certain acts with a view to bring some reforms
in certain aspects of law. In post independence era legislation of far reaching
effects has revolutionized the law. Before the independence important
legislations passed were :-
a. The caste Disabilities Removal Act, 1850

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b. The Hindu Widow's Remarriage Act, 1856.
c. Inheritance (Removal of Disabilities) Act, 1928.
d. The Indian Succession Act, 1925.
e. The Child Marriage Restraint Act, 1928.
f. The Hindu Women's Right to Property Act, 1937.
After independence following enactments of far reaching importance have been
passed:-
1. The Hindu Married Women's Right to Separate Residence and Maintenance
Act, 1949.
2. The Special Marriage Act, 1954.
3. The Hindu Marriage Act, 1955.
4. The Hindu Minority and Guardianship Act, 1956.
5. The Hindu Succession Act, 1956.
6. The Hindu Adoption and Maintenance Act, 1956.
7. Marriage Laws (Amendment) Act, 1976.
8. The Child Marriage Restraint (Amendment) Act, 1978.

C) Equity, Justice and Good Conscience

• In the absence of any specific law in the Smriti, or in the event of a conflict
between the Smritis and commentaries the principles of justice, equity and good
conscience would be applied.
• In other words, what would be most fair and equitable in the opinion of the Judge
would be done in a particular case. The Supreme Court has observed in Gurunath
v. Kamlabai in the absence of any rule of Hindu Law, the courts have the
authority to decide cases on principles of equity, justice and good conscience.
However, such decision must not insist with any existing doctrine or theory of
Hindu Law.

School of Hindu Law

Shruti and Smrities are not easy to understand. So many scholars in India wrote
commentaries and digets which lead to the development of schools of Hindu Law.
Mitakshara School
• Mitakshara School: The Mitakshara School (literally means 'a concise work') is a
running commentary on the code of Yajnavalkya, written by Vijnaneshwar (11th
Century) and prevails in all parts of India as a Supreme authority except in Assam
and Bengal.
➢ i. Dravida or Madras school

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➢ ii. Maharashtra or Bombay School
➢ iii. Banaras School
➢ iv. Mithila School
➢ v. Punjab School:

Dayabhaga School
• The Dayabaga School which is followed mainly in Bengal, is not a commentary
on any particular code, but is a digest of all the codes and written by Jimutavahana
in 12th Century. The Dayabaga is digest on leading Smritis and deals only with
partition and inheritance.
• It has no sub-school found in Dayabhaga.

Main Features Mitakshara School

• The Inheritance is based on consanguinity i.e. the nearest in blood relationship
will get the property.
• So, a son immediately after birth gets a right to the property. The system of
devolution of property is by survivorship (But now it has been amended by 2005
Amendment Act).
• The share of co-parcener in the joint family property is not definite or
ascertainable, as their shares are fluctuating with births and deaths of the
coparceners.
• The widow of a deceased co-parcener cannot enforce partition of her husband‟s
share against his brothers. A woman could never become a co-parcener.
• But, the Hindu Succession (amendment) Act of 2005 empowered the women to
become a co-parcener like a male in ancestral property.

Main Features Dayabhaga School

• The Inheritance is based on religious efficacy (Offering of pindas)
• The right to Hindu joint family property is not by birth but only on the death of
the father.
• The system of devolution of property is by inheritance. The legal heirs (sons)
have definite shares after the death of the father.
• Each brother has ownership over a definite fraction of the joint family property
and so can transfer his share.
• The widow has a right to succeed to husband‟s share and enforce partition if there
are no male descendants.

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• On the death of the husband the widow becomes a co-parcener with other brothers
of the husband. She can enforce partition of her share.

Differences between the two Schools

Mitakshara Dayabhaga
i)Right of a son by birth in the ancestral i) A son is entitled to his ancestral
property equal to the interest of his property only on the death of his father.
father. The father is the absolute owner of his
ii) A son becomes coparcener right after property in his lifetime.
his birth. His right is applicable to the ii) A son becomes coparcener by death of
property of his grandfather and grand- his father.. This right is not available to
grandfather. the property of his father, grandfather or
iii) Father has restricted power of grand grandfather
alienation and son can claim partition iii) Father has absolute power of
even against father. alienation and son cannot claim partition
iv) One cannot transfer his share to the against father.
third party. iv) One can transfer his share.
v) The Inheritance is based on v) The Inheritance is based on religious
consanguinity i.e. the nearest in blood efficacy (Offering of pindas).
relationship will get the property.

Nature of Hindu Marriage

• In India Hindu Marriage govern by The Hindu Marriage Act 1955.
• A Hindu marriage is something which is more of a religious necessity and less of
a physical luxury – Raghunandan
• The purpose of marriage is generally to give birth to a male child.
• To discharge Pitri Rin a Hindu must have his own son who is supposed to perform
funeral rites and to give sacred obligations to the ancestors on their death for their
salvation.
• Rig Vedic period marriage was considered as a sacramental union. A marriage is
the union of flesh with flesh and bone with bone. It is a union which is
indissoluble. As long as her husband is alive, the wife is enjoined to regard him
as her God; likewise, the wife is declared to be half the body of her husband
(Ardhangini) who shares with him equally the fruits of all his acts, good or bad.
Man is only half, not complete until he marries. Also Kanyadan (formal donation
of bride by her father) and Saptapadi have basic importance of Hindu Marriage.

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Concept of Marriage
Whether it is Sacramental Marriage
1. It is permanent and indissoluble.
2. It is an eternal union.
3. It is the holy union (Performance of religious ceremonies is essential)
Modern Changes:
1. After the passing of HMA the concept of divorce is made and it destroyed the first
essential elements.
2. After the passing of the Widow Remarriage Act the second essential element was
also destroyed.
3. However, the third element is still in existence by section 7 of HMA which says that
marriage may be solemnized in accordance with the customary rites and ceremonies of
either party. It included Saptapadi (taking seven steps before the sacred fire)
This provision gives statutory recognition of marriage as a sacrament.
In Bhaurao v. State of Maharashtra SC held marriage must be celebrated or
performed with proper ceremonies otherwise it will not be considered as solemnized.

Whether it is Contractual Marriage

1. There must be two Parties who have attained the age of majority.
2. Parties must be sound mind
3. There must be free consent.
4. There must be a consideration between the paerties.
The HMA lays down that age of the bride should be not less than 18 years and the
bridegroom not be less than 21. But if the parties are minor the marriage will remain
voidable but punishable.
Also if the parties are unsound mind at the time of marriage the marriage is voidable.
In the combined reading of sections 5, and 12 of the HMA leaves no doubt that marriage
without the consent of the parties is voidable. If the consent is obtained by fraud and
force, the marriage is voidable.
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So, it can be said that Hindu marriage has neither become a contract nor has remained a
sacramental union, it has the semblance of both.

Observations of Courts
1. Purshottamdas v Purshottamdas- Court observed that Marriage of Hindu children is
a contract made by their parents.
2. Bhagwati Saran Singh v Parmeshwari Nandar Singh- the Court expressed the view
that a Hindu Marriage is not only a sacrament, but also a contract.
3. Muthusami v Masilaman- A marriage, whatever else it is, i.e., a sacrament and
institution, is undoubtedly a contract entered into for consideration, with co-relative
rights and duties.
4. Anjona Dasi v Ghose- The suits relating to marriage deal with that which in the eye
of the law must be treated as a civil contract, and important civil rights arise out of that
contract.

Valid Marriage (Sec.5)

(1) Monogamy [Section 5(i)]
Section 5(i) states that neither party must have a spouse living at the time of marriage.
It implies monogamy and prohibits polygamy. The first marriage of a person must be

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legally valid marriage. If the first marriage is void the person cannot be prosecuted for
bigamy.
The second marriage must be solemnized for the prosecution of bigamy.
In Yamunabai v. Anantraa (1988), Supreme Court held that in a bigamous marriage
the 'second wife' has no status of wife because the second marriage is null and void.
In Priya Bala v. Suresh Chandra (1971), Supreme Court held that prosecution should
establish that second marriage was solemnized and mere admission of the accused that
he contracted second marriage is not enough.
Apostasy to Islam: Supreme Court in Sarla Mudgal v. Union of India, held that there
was no automatic dissolution of marriage by apostasy of a spouse to another religion.
The second marriage of a Hindu apostate to Islam during subsistence of first marriage
is violation of provisions of HMA
Decision in Sarla Mudgal's case was reviewed in Lily Thomas v. Union of India,
(2006). The court held that a marriage solemnized according to one personal law cannot
be dissolved according to another personal law because of change of religion of parties.
Effect of contravention of Section 5(i)
(a) The marriage will be null and void under Section 11.
(b) The person will be liable for punishment for bigamy under Section 17 of HMA read
with Sections 494 and 495 of Indian Penal Code.
(2) Mental health or sanity [Section 5(ii)]
Section 5(ii) stipulates that parties to the marriage must be of sound mind and must not
be suffering from any disability which precludes them from giving a valid consent. It
provides that at the time of marriage neither party must be
(a) Incapable of giving a valid consent of it in consequence of unsoundness of mind; or
(b) Though capable of giving a valid consent has been suffering from mental disorder
of such a kind or to such an extent as to be unfit for marriage and the procreation of
children; or
(c) Subject to recurrent attacks of insanity.

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Effect of contravention of Section 5(ii)
If the marriage takes place in contravention of Section 5(ii) then the marriage will be
voidable u/s 12(1)(b).
(3) Age of parties [Section 5(iii)]
Section 5(iii) provides that at the time of marriage the bridegroom has completed the
age of 21 years and the bride the age of 18.
Originally, the age fixed by HMA was 18 years for bridegroom and 15 years for bride.
The Child Marriage Restraint (Amendment) Act, 1978 fixed the minimum age for
bridegroom to 21 years and minimum age for bride to 18 years.
Effect of contravention of Section 5(iii)
The Hindu Marriage Act does not provide for any effect for contravention of this
provision. Thus, according to HMA the marriage solemnized in contravention of Section
5(iii) is neither void nor voidable.
The only consequence which HMA provides is the punishment under Section 18. It
provides for rigorous imprisonment which may extend to two years or with fine which
may extend to one lakh rupees or with both.
Further, if the requirements of Section 13(2)(iv) are satisfied then at the instance of
bride, a decree for divorce on the ground of option of puberty can be granted.
The Prohibition of Child Marriage Act, 2006 provides that every marriage shall be
voidable at the option of the contracting party who was the child at the time of marriage.

(4) Avoidance of degree of prohibited relationships [Section 5(iv)]

Section 5(iv) provides that the parties to the marriage should not be within the degrees
of prohibited relationship unless the custom or usage governing each of them permits of
a marriage between the two.
Section 3(g) defines 'degrees of prohibited relationships'. It provides that two persons
are said to be within the 'degrees of prohibited relationship'.
(i) If one is a lineal ascendant of the other, or
(ii) If one was the wife or husband of a lineal ascendant or descendant of the other; or
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(iii) If one was the wife of the brother or of the father's or mother's brother or of the
grandfather's or grandmother's brother or the other, or
(iv) If the two are brother and sister, uncle and niece, aunt and nephew, or children of
brother and sister or of two brothers or of two sisters.
A marriage within the prohibited degree is valid if it is permitted by custom or usage
governing each party.
Effect of contravention of Section 5(iv)
A marriage in contravention of Section 5(iv) is void under Section 11.
Section 18 also prescribes simple imprisonment which may extend to one month or with
fine which may extend to one thousand rupees or with both.

(5) Avoidance Sapinda relationship (Section 5(v)]

Section 5(v) provides that the parties to the marriage should not be sapindas of each
other, unless the custom or usage governing each of them permits of a marriage between
the two.
Section 3(f) defines sapinda relationship. It provides that Sapinda relationship' with
reference to any person extends as far as the third generation (inclusive) in the line of
ascent through the mother, and the fifth generation (inclusive) in the line of ascent
through the father, the line being traced upwards in each case from the person concerned,
who is to be counted as the first generation.
It further provides that two persons are said to be 'sapinda' of each other if one is a lineal
ascendant of the other within the limits of sapinda relationship, or if they have a common
lineal ascendant who is within the limits of sapinda relationship with reference to each
of them.
Effect of contravention of Section 5(v)
A marriage in contravention of Section 5(v) is void under Section 11.
Section 18 also prescribes simple imprisonment which may extend to one month or with
fine which may extend to one thousand rupees or with both.

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For this purposes relationship of Prohibited Degree and Sapinda Relationship
includes-
(i) Relationship by half blood, uterine blood or full blood;
(ii) Illegitimate or legitimate blood relationship.
(iii) Relationship by adoption as well as by blood.

Void Marriage:
Section 11 of the Hindu Marriage Act declares that marriage solemnised after the
commencement of this Act in contravention of anyone of the conditions specified in
clauses (i), (iv) and (v) of Section 5 shall be null and void.
A void marriage is no marriage from its very beginning. Since the parties lack absolutely
capacity to marry they cannot by just undergoing ceremonies, become husband and wife.
The parties have no status of husband and wife. It is open to the parties even without
recourse to the court to treat it as a nullity.
Neither party is under any obligation to seek a declaration of nullity under the section.
In Nirmal Bose v. Mamta Gulati (1997), the Court held that it is not the decree of the
Court which renders such a marriage void.
In Harmohan v. Kamal Kumar (1979), in the case of a second marriage, the first wife,
as she is not a party to the second marriage of her husband, can file a suit in the civil
court having original jurisdiction for a declaration of her right as a third party and such
suit is governed by Section 9, Code of Civil Procedure read with Section 34 of the
Specific Relief Act. She is not entitled to file a petition in the Court of District Judge for
obtaining a declaration of the second marriage as null and void under this section.
It was held in Amanlal v. Voai Bai (1959), that the first wife can ask for judicial
separation by filing a petition under the Act before the District Court.

Voidable Marriage
Sec. 12 of the Hindu Marriage Act, 1955 deals with voidable marriages. The voidable
marriages are :-
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a) if the marriage has not been consummated owing to the impotence of the respondent;
or
b) if the marriage is in contravention of the condition in clause (ii) of Section 5 i.e., at
the time of the marriage neither party is incapable of giving valid consent to it in
consequence of unsoundness of mind or though capable of giving consent has been
suffering from mental disorder to such an extent as to be unfit for marriage and the
procreation of children or has been subject to recurrent attacks of insanity
c) that the consent of the petition or where the consent of the guardian in marriage of
the petitioner was required, the consent was obtained by force or fraud as to the nature
of ceremony or as to any material fact or circumstances concerning the respondent; or
d) the respondent was at the time of the marriage pregnant by some person other than
the petitioner.
A voidable marriage is a perfectly valid marriage so long as it is not avoided. A voidable
marriage can be avoided only on the petition of one of the parties to the marriage. The
marriage can be avoided under the section by a decree of nullity. Either party if marries
without such a decree will be guilty of bigamy.

Distinction b/w Void and Voidable Marriages

a) A void marriage is void ab initio. It does not alter the status of the parties. They do
not become husband and wife and it does not give rise to mutual rights and obligations
of the parties. Whereas, a voidable marriage remains valid and binding and continues to
subsist for all purposes unless a decree annuls it.
b) The parties to a void marriage may perform another marriage without getting a decree
declaring their marriage as void and neither party will be guilty of bigamy.

Effect of Void and Voidable Marriages (Section 16)

1. Children of unannulled (not declared invalid) voidable marriage are legitimate in the
same way as children of otherwise valid marriage.

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2.Children of annulled (declared invalid) voidable and void marriage (whether declared
void or not) are legitimate but they will inherit the property of their parents alone and of
none else.
If the marriage is void or voidable under any provision of the law, except Sections 11
and 12, the children will be illegitimate.
Such children can inherit the separate property of their father under Section 8, Hindu
Succession Act, but couldn't lay any claim on the coparcenary interest of the father.
Child of such a marriage has no birth right in the Hindu Joint Family property.

Restitution of Conjugal Rights

The term ‘Conjugal Rights’ in the literal sense means ‘Right to stay together’.
When the Right Arise?

Section 9 of HMA 1955: “When either the husband or the wife has, without reasonable
excuse, withdrawn from the society of the other, the aggrieved party may apply, by
petition to the district court, for restitution of conjugal rights and the court, on being
satisfied of the truth of the statements made in such petition and that there is no legal
ground why the application should not be granted, may decree restitution of conjugal
rights accordingly”.
The concept of RCR originated in Jewish Law. Then it was applied in England and later
on implemented by the privy council in India, for the first time in a case namely
Moonshee Bazloor v. Shamsoonaissa Begum.

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Requirements of RCRs
• The parties must be legally married to one another.
• Either party has withdrawn from the society of other.
• Withdrawal of a party from the other must have no reasonable ground for such
withdrawal.
• The aggrieved party must apply for restitution of conjugal rights.
• The assertion that there is no legal justification for rejecting the decree must be
proven to the court's satisfaction.
• Explanation of section 9 provides the burden of proof of reasonable cause lies on
the person who withdrawn from society.
• What Amount to Withdrawal: The expression “ withdrawal from the society of
the other” involves a mental process besides physical separation. Temporary
living at separate place will not amount to withdrawal.
• Working Women and RCRs: Smt. Swaraj Garg vs. K M Garg 1978 decided by
Delhi High Court.

Constitutional Validity of RCRs by Judiciary

• In T. Sareetha v. T Venkata Subbaiah (1983) the Andhra Pradesh court has observed
that that S.9 of Hindu Marriage Act relating to restitution of conjugal rights as
unconstitutional because this decree clearly snatches the privacy and human dignity of
wife by compelling her to live with her husband against her wish. Also arbitrary and
void under article 14 & 19.
• In Harvinder Kaur v. Harminder Singh (1984) the Delhi High Court went back to its
original approach and held Sec. 9 of Hindu Marriage Act as valid and not violate art.
14 & 21.
• The Supreme Court in Saroj Rani Vs. Sudarshan Kumar (1984) upheld the
constitutional validity of section 9 and observed that it is inherent in the institution of
marriage. And reasonable excuse is the built in safeguard against the misuse of section
9.
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Effect of non Compliance of RCRs
• Under Order 21 Rule 32 CPC decree of RCRs may be enforced by attachment of
property.
• Under Section 13(1A)(ii) of HMA it become a ground of divorce if there is no
resumption of cohabitation even after one year from the decree of RCRs

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