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mfaiz0655
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FAMILY LAW - I (HINDU LAW)

Paper Code: BAL503 #Notes


Unit: I

Philosophy of Dharma: Hindu law is the body of principles or rules


called ‘Dharma’. ‘Dharma’ according to the Hindu text – ‘Embarrasses
everything in life’. According to the Hindus – Dharma includes not only
what is known as law in modern sense of the term but all rules of good
and proper human conduct.
The word 'Dharma' according to the Hindu mythology means 'duty'
looking at the contest and the religious references Dharma has
different meanings just like the Buddhist believe that the word Dharma
means only a universal law which is very much essential and the Jain
and the Sikh believe that it is only a religious path for the victory of the
truth.
According to the Hindu Jurisprudence – Dharma means ‘Responsibility
in different expect of life which explains it as either religious
responsibility or social, legal and even spiritual duties’. Whereas, some
people understand as rightness which enable moralistic interpretation
legally speaking. Dharma refers to the concept of justice Hence there is
no difference between Dharma and law but it is always understood as a
religious and moral bases as well as refer to in the 'Bhagwat Geeta'.
God creates a life using the principle of Dharma. they are patience,
forgiveness, self control, honesty, sensitity (cleanliness in the mind,
body and soul) control of senses, reasons knowledge, truthfulness and
absence of anger. Accordingly the salvation which means 'Moksha' is
the eternal Dharma for humans.

Origin of Hindu law: There are two views as regards the origin of Hindu
law.

According to the first view it is of “divine origin” while the other states
that Hindu law is based upon “immemorial customs & usages”.
According to the first view since High Court is derived from revelation
from one god it binds the sovereign as well as his subjects law is the
king of the kings nothing can be mightier man the law by whose did the
weak may prevail over the strong.

1
The second view of Hindu law is based upon immemorial customs and
usages but this is not correct publications of the criminal textbook
along with the commentaries and digest and Research there in have
shown the above views as incorrect. Jurist of the modern times says
that since the theory of 'law as the command of sovereign' does not fit
in with Hindu law it is not a law but one should remember that so long
as the Hindu King occupied the Throne of Hindu community the upper
class enjoyed the legislative power and commands issue by the
member were generally oveyed.

Nature of Hindu Law: Despites the other schools of jurisprudence. The


Hindu jurisprudence takes more care over the duties more than the
rights the nature of these Dharma changes person to person there are
many duties of many people in this world, like easier The king duties
was to upload the religious law and the other hand a farmer duty is to
produce food, the doctor has to care the people the lawyers have to
fight for justice.
Being a highly religious concept in nature Dharma is multifacilated. it
contains many laws and Customs in a large range of subject which is
essential and needed to be followed by each and every person for
example. Manusmriti deals with religion, administration, economic, civil
and criminal law marriage, succession, etc.

Application of Hindu Law: The term ‘Hindus’ denotes all those persons
who profess Hindu religion either by birth from Hindu parents or by
conversion to Hindu faith.
In the Yaganpurus Dasji v/s Muldas AIR 1966 SC
The supreme court accepted the working formula evolved by Tilak
regarding Hindu religion that 'acceptance of Vedas' with reverence
recognitions of the fact that the number of Gods to be worship at large
that indeed is the distinguished feature of Hindu religion.

Shastri v/s Muldas AIR, 1966 SC


In this case Supreme Court expressly define the term 'Hindu' this case is
related to the Swami Narayan temple in Ahmedabad there are a group
of people called the Satsangi who were managing the temple and they
restricted Non- Satsangi harijans to enter the temple. They argued that
Satsangi is a different religion and they are not bound by Hindu law the
2
Supreme Court held that the Satsangi are Samaji and Radha Swami all
these belong to the Hindu religion because they are originated under
Hindu philosophy.

Peerumal v/s Punnuswami AIR, 1971 SC


(The case related to Conversion & Reconversion), The Supreme Court
held in this case that a person can be a Hindu if after expressing the
intention of becoming a Hindu follows the customs of the caste, tribe or
community and the community accept him.

Mohan Das v/s Dewaswan Board AIR, 1975 SC


In this case court held that a mayor declaration and actions are enough
for becoming a Hindu.

Hindu concept of law: For the Hindus, law is a branch of 'Dharma'.


Dharma pervades throughout the Hindu philosophical thought and the
Hindu social structure. law in the sense is considered as a branch of
Dharma. According to Manu - "Dharma" is what followed by those who
are learn in Vedas and what is approved by conscience or the virtuas
who are exempted from hatred and in ordinate affection. Further
medhatithi one of the early commentators on Manu says that the term
"Dharma" stands for 'duty' it signifies the sum total of the religious,
moral, social and legal duties from this aspect. It has been said that
Hindu system is a system based on duty.

Hindu law is a law which emanates from Smrities expounded in Sanskrit


commentaries and digest these Smriti text do not make any clear cut
distinguished between rules of laws and rules of morality or religion.
These rules of religion and morality were dealt with at one and the
same place with the rules of law.

In this case of Shree Balsu Previ Council distinguished between


mandatory (legal) rules and directory (moral rules). The High Court in
India have tried to laid down some test Ram Harak v/s Jagannath 1938
Allahabad approved in Abhiraj v/s Devan 1962 SC on this basis and
entire body of Hindu law has been built up even during the momden
rule in the country. The Smriti law was continue to fully recognised.

3
Sources of Hindu Law:
 The phrase sources of law has several cannotations.
 It may be the authority which issues rules of conduct which are
recognized by Courts as binding.
 In this context ‘source of law’ means the ‘maker of law’
 It may mean the social conditions which inspires the making of
law for the governance of the conditions in this context it means
cause of law.
 It may also mean in its literal sense the material from which the
rules & laws are known.
 In this sense the expression means the evidence of law & it is in
this sense that the expressions sources of law accepted in
jurisprudence.

Sources of Hindu Law

Primary / Ancient Sources Secondary / Modern Sources


Shruti Justice Equity & good conscience
Smrities Legislation
Custom
Digest & Commentaries

Primary / Ancient Sources


1. Shruti :
 It literally means that which has been hurt the word is
derived from the root ‘Shru’ which means ‘to hear’.
 In theory it is the primary & paramount source of Hindu law
and is believe to be language of the Devine regulation
through the sages.
 The Synonium of Shruti is ‘Veda’ it is derived from the root
‘vid’ meaning “to know”
 The term ‘Veda’ is based on the tradition that they are the
repository of all knowledge.
 Vedas primary emphasized upon the standard of conduct,
privilages, duties & obligation of a man as well as philosophy
Devine attainment.
4
There are four Vedas namely —
i. Rig Veda (containing hymns in Sanskrit to be recited by the Chief
priest.
ii. Yajurva Veda (containing formulas to be recited by the officiating
priest.
iii. Sama Veda (containing versus to be chanted by Seers)
iv. Atharva Veda (containing a collection of spells & incantations
stories prediction apotrophic charms & some speciculaty hymns.

Each Veda has three parts i.e.,


1. Sahinta (which consists mainly of hymns)
2. Brahman (tell us our duties & means of performing them) &
3. Upanishad (containing the essence of these duty)

The Shruti include the Vedas along with their components.


Rig Veda is the first and foremost among the Shruties for the
knowledge of law it comprehensively deals with the duties of a king te
Rig Veda enjoins observance of the ancient rules of Aadi Manu do not
take us for away from the path of rules of Dharma prescribed by Manu
& came down to us from our Forefathers.

2. Smrities :
The word ‘Smriti’ is derived from the root ‘Smri’ meaning
‘to remember’ traditionally Smrities contain those the sages forgot in
their original form & the idea whereby they wrote in own language with
the help of their memory.
Thus, the basis of the Smrities is Shruties but they are human burns.
There are two kinds of Smrities i.e.
i. Dharm Sutaras (mini magazines)
ii. Dharm Shastra (long Verses/ श्लोक)

There subject matter is almost same. the difference is that the Dharm
Sutaras are written in prose in short magazines (Sutaras) and the
Dharam Shastra are composed the poetry (Shlokas).
However, occasionally be find Shlokas in Dharam Sutaras and Sutaras in
the Dharam Shastras. In a narrow sense the word 'Smriti' is used to
denote the poetrically Dharm Shastras.
5
The number of Smriti writers is almost impossible to determine but
some of the noted Smriti writers innumerated by Yajnavalkya (says
from mithla & the major figure in the Upanishads) are Manu, Atri,
Vishnu, Harita, Katyayana, Brihaspati, Parashar, Viyas, Shank, Daksh,
Gautam, Shatapapa, Vasishtha etc.

The rules laid down in Smrities can be divided into three categories:
i. Achar (relating to majority)
ii. Vyavhar (signifying procedural & substantive rules which the king
or the state apply for settling dispute of adjudication for
commission of a wrong)
iii. Prayaschit (signifying the Penal provisional for the commission of
a wrong)

Notes
i. Manu Smriti: It is an important and foremost Smriti of the world.
It has 12 chapters, 8 chapters describe 18 titles of law which
includes both Civil and Criminal law promenant among which are
law of Inheritance, Contract, Property, Master-Servant
relationship and defamation.

ii. Yajnavalkya Smriti: Contains rules of procedure and evidence to


be followed in civil dispute it does not confine the justiceable
causes to 18 titles of dispute as enjoyed by Manu but won the
other hand it has laid down that when ever the right of a person
is infringe or a wrong is done to him in contravention of Smriti or
a customary law a judicial proceeding could be initiated.

iii. Narad Smriti: It is highly advance and progressive in nature. It


includes ownership property gift partnership inheritance. He
recognises the right of separation and remarriage by a woman in
certain circumstances. It also gives some detailed rules relating to
payment of interest. It deals with the law relating to pleading,
procedure and evidence. this Smriti has been the recognition of
the authority of the King made law.

6
3. Custom:
Custom is regarded as the 3rd source of Hindu Law
from the earliest period custom (Achara) is regarded as the highest
Dharma as defined by the judicial commity custom significe a rule
which is in a particular family or in a particular class or in district has
from long usages obtained the force of law.
In literal word when certain course of conduct is followed
continuously for long time in a particular family or particular class or
in a particular locality it obtain one force of law.

It can be categorized in three types:—


(i) Local Custom: These are customs recognized by courts to have
been prevalent in a particular region or locality.
(ii) Class Custom: These are customs which are acted upon by a
particular class i.e. there is a custom among a class of Vaishyas to
the effect that desertion or abandonment of the wife of the
husband abrogated the marriage and the wife is free to marry
again during the lifetime of the husband.
(iii) Family Custom: These are customs which are binding upon the
members of the family i.e. there is a custom in families of ancient
India that the eldest male member of the family shall inherit
estates.

Deivnai Achi v/s Chidambram, 1954 Madras


In the instant case it was held that in order to become legally
sanctioned by law and binding on the people of a custom must be
continuous in practice it should not be vague and ambiguous and
should not oppose the well established must be in the completer
observation of society.

Essentials of Custom:
 Ancient
 Invaiability & Continuous
 Reasonableness
 Clarity & Unambiguity
 Not opposed to morality or public policy
 Not opposed to express provision of law
 Onus
7
 Judicial notice of a custom

Collector of Madras v/s Mottoo Ramlinga, 1868


In this case the Prevy Council in its decision clearly stated that a clear
proof of usages will out way the written text of law

Shiromani v/s I. Hemantwar & other AIR 1968 SC


Supreme Court in recent decision observed that a custom must be
proved to be ancient, certain & reasonable it is to be recognized and
acted upon by courts of law.

4. Digest & Commentaries: After Shruties came the era of


commentator and digest commentaries (tika or bhashya) and digest
(nibandh) covered a period more than thousand years from 7th
century to 1800 AD. In the first part of the period most of the
commentaries were written on the smrities but in the later period
the works were in the nature of digest continuing a synthesis of the
various Smriti is and explaining and recouncelling the various
contradictions.
The evolution of the different schools of Hindu law has been
possible on account of different commentories that were written by
various authorities, the original source of Hindu law was the same
for all Hindus but schools of Hindu arore as the people choose to
adhere to one or the other school for different reasons.

The Dayabhagya and mitakshara are the two major source of Hindu
law.

The Daya Bhagya school of Hindu law is based on the commentaries


of Jimutvahana (author of Dayabhagya which is the digest of all
courts) and the Mitakshara is based on the commentaries written by
Vijnaneshwara on the court of Yajnavalkya.

Secondary / Modern Sources

8
1. Justice, Equity & Good Conscience:
Occasionally it might happen that a dispute comes before a court
which can’t be settled by the application of any existing rule in
any of the sources available such a situation may be rare but it is
possible because not every kind of fact, situation which arises can
have a corresponding law governing it.

The Courts can’t refuse to the settle the dispute in the absence of
law and they are under an obligation to decide such a case cases
the courts relay upon the basic values norms & standards of fair
play & propriety.
In terminology this is known as principles of justice, equity and
good science they may also be term as natural law this principle
in our country has enjoyed the states of a sources of law since
the 18th Century when the British administration made it clear
that in the absence of a rule the above principle shall be applied.

2. Legislation: Legislations are acts of parliament which have been


playing a profound role in the formation of Hindu Law after India
achieved Independence some important aspects of Hindu Law
have been codified.

Few examples of important statutes are :—


 The Hindu Marriage Act, 1955
 The Hindu Adoption Maintenance Act, 1956
 The Hindu Succession Act, 1956
 The Hindu Minority & Guardianship Act, 1956

After codification any point dealt with by the codified law is final
the enactment over rights all prior law whether based on custom
or otherwise unless & express saving is provided for in the
enactment itself in matters not specifically covered by the
codified law the old textual law contains to have application.

Schools of Hindu Law

Mitakshara Dayabhaga
9
1. Mitakshara : The Mitakshara school of Hindu Law is one of the
oldest & most widely followed school of Hindu law in India. It is
based on the commentary on the Yajnavalkya smriti by
Vijnaneshwara a medieval Hindu Jurist. The Mitakshara school
is prevalent in most parts of India accept for the State of Bengal
& Assam.

Key concepts of Mitakshara school:

i. Joint Family: The Mitakshara school recognizes the concept of


joint family where the property is held jointly by all the
members of the family and is inherited by the male members
of the family in a line of unbroken male descent. The property
is considered to be undivided & coparcenery and the male
members have equal rights in the property.

ii. Coparcenery: Coparcenery refers to the joint ownership of


property by male members of a Hindu joint family. The
Mitakshara school recognizes the concept of coparcenery
where the sons, grand sons, and great grand sons of the holder
of the property have an equal share in the property by birth.

iii. Right to Survivorship: The Mitakshara school recognizes the


right to survivorship where upon the death of a coparcener his
share in the property passes by survivorship to the surviving
coparceners and not by Succession or Inheritance.

iv. Hindu Succession Act 1956: The Hindu Succession Act 1956
which is the main legislation governing succession and
inheritance in Hindu law is based on the principles of the
Mitakshara school. According to Mitakshara school only male
coparceners have a right to inherit ancestral property and
female members do not have coparcenery rights. However,
The Hindu Succession Act 1956 brought about significant
changes to the Mitakshara school of Hindu law by introducing
gender equality and giving rights to both male & females heirs
in matters of inheritance as per the Hindu Succession
10
Amendment Act of 2005, Daughter now have equal
coparcenery rights in ancestral property which means that
there are entitle to share in the property by birth just like sons.

v. Stridhan: Every kind of money which stri hold or which she is


owner.

vi. Partition: In Mitakshara share of every coparcener has


uncertain and when the share of the member decided it is
known as partition.

vii. Payments of debt: According to Mitakshara son have pious


obligation to pay father, grandfather, or great grandfather’s
debt.

viii. Sapinda Relationship: In Mitakshara, Sapinda relation means


blood of same body (If two person have same forefathers then
they are sapinda relative)

2. Dayabhaga: Main features of Dayabhaga, it exist in state of


West Bengal and others part of the Eastern part of India it is
based on the commentary on the Yajnavalkya Smriti and other
Smriti by Jimutavahana. The daughter school has some
differences in its principles and practices as compare to the
Mitakshara schools.

Key concepts of Dayabhaga:

i. Individual Property: Unlike the concept of joint family in the


mitakshara schools the Dayabhaga school recognize the concept
of individual property where the property is on and inherited by
individual and not by joint family as a whole. there is no concept
of coparcenery in the Dayabhaga school and each individual
have independent ownership and control over the property.

11
ii. Testamentary Succession: Dayabhaga School recognize the
concept of testamentary succession where a person has the
right to make a will and dispose of his/her property as per
his/her wishes. the mitakshara school on the other hand does
not recognize the concept of will and the property is inherited by
the coparceners as per the rule of succession.

 The system of devolution of property by inheritance. The legal


heirs (sons) have definite shares after the death of father.
 Each brother has ownership over a definite fraction of one
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 descendent.
 On the death of the husband the widow becomes a coparcener
with other brothers of the husband she can enforce partition of
her share.
 In Dayabhaga Sapinda relation is by panda offerings.

Effect of Migration: When a Hindu family migrate from one state


to another. The law draws a presumption that it carries with its
personal law i.e. the laws and customs prevailing in the state
from which it came. The presumption can however we rebuted
by showing that such a family has adopted the law and usages of
new provins where it has settle down.

Abdu Rahim v/s Halima Bai, 1916


The court observed “where a Hindu family migrate from one
part of India to another prima facie they carry with them their
personal law and if are alite to have become subject to a local
custom this new custom must be affirmatively proved to have
been adopted”.

12

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