hindu law

Hindu Law

Popularly known as Family Law I&

Personal Law of Hindus

Codified and Uncodified Laws

- Uncodified Laws Sphere of personal lawPersons governed by Hindu LawSources of Hindu LawSchools of Hindu LawThe Hindu Joint familyImpartible estateHindu religious endowments

- Codified LawsThe Hindu Marriage Act, 1955The Hindu Adoptions and Maintenance Act,

1956The Minority and Guardianship Act, 1956The Hindu Succession Act, 1956Family Courts Act 1984

Sphere of personal Law

• Family - a basic unit of societal fabric and a miniature of the social organization.

• The relationship among the members of the family is based upon consanguinity, affinity and adoptions.

• Mating relationship through the institution of marriage, procreation and legalizing the children, having distinct identifiable name for the family, common habitation economic base, closely knitted relations are some of the important features of the family.

• Origin of the family – there is a belief that family emerged out of certain needs of the human beings like sexual urge, sharing of emotional sentiments, procreation etc.

• As the family existed there was need for a law to govern them, people started applying such rules what were commonly followed by them and on later stages that itself took the frame of personal laws.

Forms of family1. Patriarchal family &Matriarchal family ( these two are based

on authority)2. Nuclear family & Extended family 3. Patrilocal family & Matrilocal family ( based on residence)4. Polygamous family ( man with more than one wife)

polyandrous family (woman with more the one husband) and Monogamous family (a man with a woman)

5. Patrilineal family and matrilineal family (based on ancestry)6. Extragamous family and Endogamous family (based on in

group and out group affinity)

Personal law distinguished from territorial law

• Personal law applies to those who profess a particular religion.

• Territorial law applies by virtue of their connection with the territory of a particular state.

• Some territorial laws superseded the personal laws.• The legislation rarely legislated in the sphere of

personal law to remove obnoxious customs like abolition of sati, Hindu widow’s remarriage act etc.

Topics of personal law

• Succession• Marriage and divorce• Guardianship• Maintenance• Joint family and partition• Adoption • Religious institutions

Codification Hindu Law• A comprehensive Hindu Code was drafted by the Rau

committee. It was introduced in the Legislative Assembly in 1947.

• The first personal law to be codified was Hindu marriage act 1955 (18/5/1955) and has been extensively amended by Act 63 of 1976.

• The next was Hindu Succession Act 1956 (w.e.f 17/6/1956)• Hindu Minority and Guardianship Act, 1956, supplemental

to the Guardians and Wards Act, 1890. • Hindu Adoptions and Maintenance Act, 1956.

Persons governed by Hindu Law

• Sec 2 of HMA, HSA, HA&MA – applies to only Hindus.

• Sec 3 of HM&GA also makes it clear that the act applies only to Hindus.

1. Hindus by birth – Myna Baee v. Ootaram (PC)- 2 questions for consideration – by what law are the children govern and do the children succeed to his property

Shashti Yagnapurushdasji v. Muldas Bhundardas Vaishya

AIR 1966 SC 1119.

- Indian sect known as satsangis is distinct community outside the Hindu sect.

- Satsang was founded by a Brahmin reformer Sri swaminarayana in 1780.

- His followers regarded him as god and build a temple for him after his death.

- Satsangi’s also worship lord krishna- Hindu temples were thrown open to Harijanas by ‘Bombay Hindu

Places of Public Worship Act 1956’. - Article 26 – freedom to establish religious institutions- Art 25(b) – allows opening of Hindu temple to all classes of Hindus

2. Off shoots of Hinduism: the followers of Bramho Samaj, Arya Samaj, any other established by reformist religious leaders who were themselves Hindus;3. Persons who are not Muslims, Christians, Parsis or Jews are Hindus;4. Conversion to Hinduism – Ratansi Morarji v. Administrator General of Madras AIR 1952 Mad 160 – Australian lady converted to Hinduism by the Hindu Missionary Society of Bombay……. Will was drafted before her death, will was not attested……Will is held valid.

Perumal v.Ponnuswami – AIR (1970) 1 SC 2352

Annapazham, an Indian Christian was married to Perumal Nadar, a Hindu in accordance with Hindu ceremonies and rights….. Son filed a petition for share the property of Ponnuswami.Contentions:(i) that Annapazham was an Indian Christian and a marriage between a Hindu and an

Indian Christian must be regarded as void; (ii) that the marriage was invalid because the appellant was already married before he

married Annapazham and bigamous marriages were prohibited by Madras Act 6 of 1949;

(iv) that the appellant and Annapazham were living apart for a long time before the birth of the plaintiff and on that account the plaintiff could not be regarded as a legitimate child of the appellant.

HELD : The question whether marriage between a Hindu male and a Christian female is valid or not did not arise for consideration in the present case because the finding of the Courts below that Annapazham was converted to Hinduism before her marriage with Perumal was amply supported by evidence.

- son has all the right to inherit the property from Perumal - the person born within 280 days after the dissolution of the said marriage, the mother remaining unmarried is given legitimacy and deemed to be born to the earlier father – Section 112 of Evidence Act.

5. Reconverts to Hinduism : Rajgopal v. Arumugan AIR 1969 SC 101 a Hindu adi-drawida converted to Christianity in 1949.

• In the 1967 election to the State Legislative Assembly, the appellant and the 1st respondent claiming to be Adi Dravidas, stood as candidates for a seat reserved for Scheduled Castes.

• The respondent was declared elected. The appellant`s election petition challenging the election was allowed by the High Court.

• The SC with the Bench of Justice Bhagawati, J.Chandrachud, J.Sarkaria, and Ranjit Singh, dismissed the respondent's appeal holding, - (1) that the respondent was converted to Christianity in 1949,- (2) that on such conversion he ceased to be an Adi Dravida, - (3) that he was reconverted to Hinduism but - (4) assuming that membership of a caste can be acquired on conversion or

reconversion to Hinduism, the respondent had failed to establish that he became a member of the Adi Dravida caste after reconversion.

It was held that as he is not a reserved candidate the election result would stand quashed.

- In the 1972 elections, the appellant and respondent again filed their nominations as Adi Dravidas for the seat reserved for Scheduled Castes;

- On objection by the appellant, the Returning officer rejected the nomination of the respondent on the view that on conversion to Christianity, he ceased to be an Adi Dravida and that on reconversion, he could not claim the benefit of the Constitution (Scheduled Castes) order, 1950. The appellant was declared elected.

- The respondent challenged the election and the High Court held that the question (a) whether the respondent embraced Christianity in 1949, (b) whether on such conversion be ceased to be an Adi Dravida, and (c) whether he was reconverted to Hinduism, were concluded by the decision of this Court in the earlier case.

Effects on conversion on rights of inheritance

• By The Caste Disabilities Act, 1850, the converts do not loose their right to inherit the property, the act is also called the Freedom of Religion Act,

• it has abolished the customary law, which entitles forfeiture of rights of inheritance consequent upon conversion or deprivation of caste.

Effects of conversion on marital rights

- Under HMA, conversion of either party is per se a ground for seeking divorce to the other party.In Vilayat v. Sunila AIR 1983 Delhi 351, - whether a Hindu husband, who has embraced Islam subsequent to the marriage, can file a petition for divorce under HMA? - He could do so because u/s 13 of HMA “at the time of presentation of petition, the parties need not be Hindus”.

Effect of conversion on right to Maintenance & guardianship

• The spouse who retains as Hindu has the right to seek separate residence and maintenance from the other who converted to other religion under the Hindu Adoptions and maintenance act.

• The paramount consideration with regard to guardianship is the welfare of the minor, it is becomes a factor to be taken into account in considering the fitness of the parent to continue as guardian.

Module IIsources of Hindu Law

• Introduction• Traditional Sources or ancient sources –1. The Vedas: means knowledge from the root vid = to know. The four Vedas are Rig, Yajur, Sama and AtharvaThe oldest of these is Rigveda – consisting of 1028 hymns.Yajur Veda – sacrificial Veda, a part of Rig Veda hymns Sama Veda – Chant Veda, intended to chanted at certain ceremoniesAtharva Veda – so called after the classes of priests known as Atharavas by whom it was complied.Vedic religion consists worships of trinity of Gods – the fire God, the Rain God, the Sun God, the Vayu God etc.

2. The Sruti: Hindu law is considered as divine law, revealed law. -The word sruti literally means “what was heard”.-The vedas, are believed to be heard and thus contain the divine revelation.- The term sruti stands for the vedas.- The theory of revealed law was sacred law, because it was believed

that it was directly from the god the sages heard.- In this view the entire body of Hindu is emanated from Srutis, i.e.,

Vedas.- The approximate period of the Vedas is accepted to be 4000-1000 BC.- The Sruti depict the life of our early ancestors, their customary law

etc.,

3. The Smritis: the word Smriti literally means “what has been remembered”. -The smritis are based on the memory of the sages who were the repositories of the sacred revelation.- The smritis are divided into Dharmasutras and Dharmashastras

- to expound the meaning contained in the vedas. (mainly to deal with the duties of men in their various relations)

- Dharmasutras were mostly written in prose, though a few of them were written in prose and verse.

- The main dharmasutras were Gautama, Baudhyana, Apastamba, Haridrasa, Vasista and Vishnu.

• Dharmashastras are mostly in poetry form. • They deal with the subject matter in a very systematic way.• The dharmashastras are divided into three parts: Achara

(rules of religious observances), Vyavahara (civil law) and Prayachitta (penance or expiation)

• In Vyavhara rules of substantive and procedural law is discussed.

• The writers of the smritis are termed as ‘smritikara’ and Manu(supreme authority), Yajnavalkya, Narada, brihaspathi are some of the great smritikaras.

3. Digests and Commentaries: there was much need for clear and systematic exposition of rules of law, legal concepts and principles,The rules of enunciated in the smrities were not

always clear cut and they did not cover all situationsOne smriti differed from the other, these needs were

satisfied by the commentators and digest writers.The conflict between th smriti and commentary, the

later will be of great importance.

• Commentaries on all the smrities put in a book is termed as digest and commentary on each smriti written in separate book is called commentary.

• Most honoured commentary on Manusmriti are by Medhatithi, Govindraja and Kulluka Bhatta, Ashaya and Vishnuvamin.

• Some of the Commentaries on Yajnavalkya smriti are Visvarupa, Vijnansehwara, Apararka, Shulapani and mitra Mishra

• Among all these commentaries Mitakshara in various parts of the country and Dayabhaga in bengal is very much authoritative.

• Dattaka Mimansa and Dattaka Chandrika are the authoritative commentaries on Adoption, written by nanapandita

4. Customs: Contribution of Historical school of Jurisprudence, conclusively established in early societies is main vehicle for legal development. origin and nature of custom: by forming a

group, to lead a harmonious life, conform to certain patterns of human behavior.

Types of customs : Local, class, family custom

Essentials of valid Custom: AncientInvariable and continuityReasonablenessClarity and unambiguityNot opposed to public policyNot opposed to express provisions of law,Onus

Modern Sources

1. Judicial decisions:2. Legislation:3. Justice, Equity and Good Conscience

Module IIISchool of Hindu Law

• Mitakshara and Dayabhaga are the two important schools of Hindu Law which has given us the required information about the present legislated laws.

• It remarked the smritis and did not agree on all the concepts of smrits

• These are two commentaries on two different smritis• Mitakshara written by Vijnaneshwara is a running

commentary on Yajnavalkya Smriti• Dayabhaga is a commentary written by Jimuthavahana as it

has not shown on which particular smriti the comment was written, it is more clearly called as Digest.

• Mitakshara is written on later part of 11th century – it is a comprehensive commentary which deals with all titles of Hindu law.

• It prevails and accepted through out India and Dayabhaga was accepted in Bengal and Assam.

• Mitakshara is sub-divided into five schools- The Banaras School – whole of North India The Mithila School – Tirhoot and North Bihar The Dravida or Madras School - Madras The Bombay or Maharashtra School – whole of Bombay or

Mharashtra and The Punjab School – North-west part of country

Differences between Mitakshara and Dayabhaga Schools of Law

Mitakshara1. As regards Joint Property: Right to property of the Coparcener

arises by Birth Son is a co-owner with the father of

the ancestral property Father has the restricted power of

alienation of ancestral property On death of the member the

property will fall on other members on rule of survivorship

The members of the joint family cannot dispose of their shares while undivided

Dayabhaga

Right to Property of the Coparcener arises by Death

Son has no right to ancestral property during father’s life time

Father has the absolute power of alienation of ancestral property

On death of the holder of the property, the property will fall on his legal heirs on the rule of inheritance or succession

Any member of joint family may sell or give away his share even when undivided.

Mitakshara school2. As regards inheritance: Inheritance is governed by the rule

of consanguinity

Cognates are postponed to agnates.

Doctrine of factum valet: recognition is to a very limited extent.

- Under the new Hindu Law, the difference between the two schools is no longer tenable

Dayabhaga school

Inheritance is governed by the rule of affinity/ religious efficacy of offering pindas to the dead ancestors.

Some cognates like sister's sons are preferred to many agnates.

Extended to full recognition to doctrine of factum valet.

- Under Hindu Succession Act, 1956 we have one uniform law of succession for all Hindus, whatever school they may belong.

“factum valet quod fieri non debuit” – what ought not to be done becomes valid when done.

-The doctrine declares that a fact cannot be altered by a hundred texts of law. migration and the school: a Hindu family carries with it, its laws

including customs of locality and the burden is heavy on the party alleging otherwise.

Where a Hindu family migrates from one part of India to another, prima facie they carry with them their personal law, and if they are alleged to have become subject to a new local custom, their new custom must be affirmatively proved to have been adopted.