Family Law - Hindu Law – UNIT I
Table of Contents
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▪ Family Law / Hindu Law – UNIT I — Revision Study Notes for LL.B
• Introduction of the Hindu Law
o Concept of Dharma
o Origin of Hindu law
o Nature and scope of Hindu Law
o Who are Hindus
o To whom Hindu Law apply
o To whom Hindu law does not apply
o Constitution of India and the Enactments under the Hindu Law
• Sources of Hindu Law
o Ancient Sources
▪ 01. Shruti (Vedas)
▪ 02. Smritis
▪ 03. Commenatries and Digests
▪ 04. Customs
▪ Requirements for a valid custom
▪ Proof of Custom
▪ Usage and Custom
o Modern Sources
▪ Judicial Decisions (Precedents)
▪ Legislatures / Statutes (Codification of Hindu Law)
▪ Justice, equity and good conscience
• Schools of Hindu Law
o The Mitakshara School
o The Dayabhaga School
Introduction of the Hindu Law
Concept of Dharma
Hindu Law is a body of principles or rules called ‘Dharma’. Dharma according
to Hindu texts embraces everything in life. According to the Hindus, ‘Dharma’
includes not only what is known as law in the modern sense of the term but all
rules of good and proper human conduct. Dharma is used to mean justice
what is right in a given circumstance, moral, religious, pious or righteous
conduct, being helpful to living beings and things, duty, law and usage or
custom having in the force of law and also a valid Rajashasana
Origin of Hindu law
The Hindu system as modified through centuries has been in existence for
over five thousand years and has continued to govern the social and moral
patterns of Hindu life with harmonizing the diverse elements of Hindu cultural
life. Magne says, “Hindu law has the oldest pedigree of any known system of
Jurisprudence and even now it shows no signs of decrepitude“.
Nature and scope of Hindu Law
Hindu law, though believed to be of divine origin, is based essentially on
immemorial custom and many of the acts of the people which were purely of a
secular nature. But the secular nature of the acts have been modified to suit
the religious preferences of a Brahmin community. With a desire to promote
the special objects of religion or policy, they have used their intellectual
superiority and religious influence to mold the customs of the people.
Who are Hindus
The term ‘Hindus’ denotes all those persons who profess Hindu religion either
by birth from Hindu parents or by conversion to Hindu faith. In Yagnapurus
dasji v. Muldas [AIR 1966 SC 1119], the Supreme Court accepted the
working formula evolved by Tilak regarding Hindu religion that ‘acceptance of
vedas’ with reverence, recognition of the fact that the number of Gods to
be worshiped at large, that indeed is the distinguishing feature of Hindu
religion.
In Shastri v Muldas SC AIR 1961, SC has held that various sub sects of
Hindus such as Swaminarayan, Satsangis, Arya Samajis are also Hindus by
religion because they follow the same basic concept of Hindu Philosophy.
Converts and Reconverts are also Hindus.
If only one parent is a Hindu, the person can be a Hindu if he/she has been
raised as a Hindu. In Sapna vs State of kerala, Kerala HC, the son of Hindu
father and Christian mother was held to be a Christian
To whom Hindu Law apply
1. Hindus by birth
2. Off shoots of Hinduism
3. Persons who are not Muslims, Christians, Parsis or Jews
4. Converts to Hinduism
5. Reconverts to Hinduism
6. Harijans
7. Aboriginal Tribes
To whom Hindu law does not apply
▪ to converts from the Hindu to the Mohammedan faith
▪ to the Hindu converts to Christianity
▪ to the illegitimate children of a Hindu father by Christian mother and who
are brought up as Christians
Constitution of India and the Enactments under the
Hindu Law
Presently, Hindu Law is applied through the Hindu Marriage Act, 1955; the
Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956;
and the Hindu Adoptions and Maintenance Act, 1956
Constitutional enactments are:
▪ Hindu Women’s Rights to Property Act, 1937
▪ Hindu Succession Act, 1956
Impact of Hindu Law Enactments in Fundamental Rights
Several principles of Hindu Law have been held invalid on the ground that
they infringe the Fundamental Rights. For example, the rule of Damdupat is
hit by Article 15(1) of the Constitution and as such would be void under Article
13(1).
Sources of Hindu Law
Ancient Sources
Before the codification of Hindu Law, the ancient literature was the only
source of the law. These sources can be divided into four categories:
01. SHRUTI (VEDAS)
Shruti means “what is heard”. It is believed that the rishis and munis had
reached the height of spirituality where they were revealed the knowledge of
Vedas. Thus, shrutis include the four vedas – rig, yajur, sam, and athrava
along with their brahmanas. The brahmanas are like the apendices to the
Vedas. Vedas primarily contain theories about sacrifices, rituals, and customs.
02. SMRITIS
Smriti means “what is remembered”. With Smritis, a systematic study and
teaching of Vedas started. Many sages, from time to time, have written down
the concepts given in Vedas. So it can be said that Smritis are a written
memoir of the knowledge of the sages. Immediately after the Vedic period, a
need for the regulation of the society arose.
▪ Dharmasutras: The Dharmansutras were written during 800 to 200 BC.
They were mostly written in prose form but also contain verses. It is clear
that they were meant to be training manuals of sages for teaching
students.
▪ Dharmashastras: Dharmashastras were mostly in metrical verses and
were based of Dharmasutras. However, they were a lot more systematic
and clear.
▪ Manusmriti: This is the earliest and most important of all. It is not only
defined the way of life in India but is also well know in Java, Bali, and
Sumatra. The name of the real author is not known because the author has
written it under the mythical name of Manu, who is considered to the the
first human.
▪ Yajnavalkya Smriti: Though written after Manusmriti, this is a very
important smriti. Its language is very direct and clear. It is also a lot more
logical. He also gives a lot of importance to customs but hold the king to be
below the law.
▪ Narada Smriti: Narada was from Nepal and this smriti is well preserved
and its complete text is available. This is the only smriti that does not deal
with religion and morality at all but concentrates only on civil law.
03. COMMENATRIES AND DIGESTS
After 200 AD, most the of work was done only on the existing material given in
Smrutis. The work done to explain a particular smriti is called a commentary.
Commentaries were composed in the period immediately after 200 AD.
Digests were mainly written after that and incorporated and explained material
from all the smruitis. As noted ealier, some of the commentaries were,
manubhashya, manutika, and mitakshara. While the most important digest is
Jimutvahan’s Dayabhag that is applicable in the Bengal and Orissa
area. Mitakshara literally means ‘New Word’ and is paramount source of law
in all of India.
04. CUSTOMS
Most of the Hindu law is based on customs and practices followed by the
people all across the country. Even smrutis have given importance to
customs. They have held customs as transcendent law and have advised the
Kings to give decisions based on customs after due religious consideration.
Customs are of four types:
▪ Local Custom: These are the customs that are followed in a given
geographical area.
▪ Family Custom: These are the customs that are followed by a family from
a long time. These are applicable to families where ever they live.
▪ Class or Caste Custom: These are the customs that are followed by a
particular cast or community. It is binding on the members of that
community or caste. By far, this is one of the most important source of
laws.
▪ Guild Custom: These are the customs that are followed by traders.
REQUIREMENTS FOR A VALID CUSTOM
▪ Ancient
▪ Continuous
▪ Certain
▪ Reasonable
▪ Not against morality
▪ Not against public policy
▪ Not against any law
PROOF OF CUSTOM
The burden of proving a custom is on the person who alleges it. Usually,
customs are proved by instances. In the case of Prakash vs Parmeshwari, it
was held that one instance does not prove a custom. However, in the case of
Ujagar vs Jeo, it was held that if a custom has been brought to notice of the
court repeated, no further proof is required.
USAGE AND CUSTOM
The term custom and usage is commonly used in commercial law, but
“custom” and “usage” can be distinguished. A usage is a repetition of acts
whereas custom is the law or general rule that arises from such repetition. A
usage may exist without a custom, but a custom cannot arise without a usage
accompanying it or preceding it. Usage derives its authority from the assent of
the parties to a transaction and is applicable only to consensual
arrangements. Custom derives its authority from its adoption into the law and
is binding regardless of any acts of assent by the parties. In modern law,
however, the two principles are often merged into one by the courts.
Modern Sources
JUDICIAL DECISIONS (PRECEDENTS)
The doctrine of stare decisis started in India from the British rule. All cases are
now recorded and new cases are decided based on existing case laws.Today,
the judgment of SC is binding on all courts across India and the judgment of
HC is binding on all courts in that state.
LEGISLATURES / STATUTES (CODIFICATION OF HINDU
LAW)
In modern society, this is the only way to bring in new laws. The parliament, in
accordance with the needs society, constitutes new laws. For example, a new
way of performing Hindu marriages in Tamil Nadu that got rid of rituals and
priests was rejected by the SC on the basis that new customs cannot be
invented. However, TN later passed an act that recognized these marriages.
JUSTICE, EQUITY AND GOOD CONSCIENCE
Equity means fairness in dealing. Modern judicial systems greatly rely on
being impartial. True justice can only be delivered through equity and good
conscience. In a situation where no rule is given, a sense of ‘reasonableness’
must prevail. According to Gautama, in such situation, the decision should be
given that is acceptable to at least ten people who are knowledgeable in
shastras. Yagyavalkya has said that where ever there are conflicting rules, the
decision must be based on ‘Nyaya’.
Schools of Hindu Law
Due to the emergence of various commentaries on SMIRITI and SRUTI,
different schools of thoughts arose. The commentary in one part of the
country varied from the commentary in the other parts of the country.
The Mitakshara School
The Mitakshara School exists throughout India except in the State of Bengal
and Assam. The Yagna Valkya Smriti was commented on by Vigneshwara
under the title Mitakshara. The followers of Mitakshara are grouped together
under the Mitakshara School.
Mitakshara school is based on the code of yagnavalkya commented by
vigneshwara, a great thinker and a law maker from Gulbarga, Karnataka. The
Inheritance is based on the principle or propinquity i.e. the nearest in blood
relationship will get the property.
The school is followed throughout India except Bengal state. Sapinda
relationship is of blood. The right to Hindu joint family property is by birth. So,
a son immediately after birth gets a right to the property.
▪ Dravidian School Of Thought (Madras School)
▪ Maharashtra School (Bombay School Of Thought)
▪ Banaras School Of Thought
▪ Mithila School Of Thought
Dayabhaga School is based on the code of yagnavalkya commented by
Jimutuvahana, Inheritance is based on the principle of spiritual benefit. It
arises by pinda offering i.e. rice ball offering to deceased ancestors.
This school is followed in Bengal state only. Sapinda relation is by pinda
offerings.
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.
