Family Law – I Y.

S Visveswarapura College of Law, Bangalore

UNIT-I
Family Law-I Concept of Dharma
Hindu Social Structure
Introduction
The word Dharma comes from the Sanskrit word dhri, which means “to hold,” "to maintain,”
support or "to preserve." and, Duty. According to Buddhists the word Dharma means
‘Universal Law’ and the Jains and the Sikhs believe that it is only a religious path for the victory
of the truth. According to the Hindu Jurisprudence, Dharma means the duties in many ways.
Just like the sociological duties, legal duties, or spiritual duties. the Hindu Jurisprudence takes
more care over the duties more than the rights. The nature of these Dharma changes from
person to person. There are many duties of many people in this world like earlier, the king’s
duty was to uphold the religious law and the other hand a farmer’s duty is to produce food, the
doctor has to cure the people, the lawyers have to fight for justice. According to Manu "the
Vedas, the Smriti, the approved usage, and what is agreeable to one's soul or good conscience,
are the four-fold direct evidence of Dharma. According to Yajnavalkya "the Sruti, the Smriti,
the approved usage, what is agreeable to one's soul (or good conscience) and desire sprung
from due are ordained the foundation of Dharma.

Types of Dharma
1. Ashrama Dharma
According to the Shastric concept of Hindu life, it has been considered that the average life of
a human being was of hundred years to be divided into four stages, i.e., twenty-five years for
each. This division of life was related to the division of life into four Ashramas as—
Brahmacharya, Grihastha, Vanaprastha and Sanyas Ashram. An individual could get salvation
from this physical world by performing the prescribed duties under these four Ashrams.
According to the Purushartha theory, there are four objectives of human life, namely, Artha,
Dharma, Karma and Moksha, which must be attained by an individual in order to make the life
successful.
A) Brahmacharya-Ashrama
According to our Dhannashastras, the first twenty-five years of age were called the
Brahmacharya-Ashrama. During this period an individual is expected to gain learning under
the guidance and control of a Guru. After learning Vedas and other sciences during this period
and having been blessed by his preceptor (Guru) his Brahmacharya-Ashram came to an end.

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Thus, with the completion of the twenty-fifth year, he entered the second stage of life that is
known as Grihastha-Ashram.
B) Grihastha-Ashram
Once a student returned to his home from the gurukula after completing his education, having
developed his body and mind fully and became adept in the Vedic knowledge, he was entitled
to get married and to experience the pleasures of life. The two objectives of life provided by
the Purushartha theory as Artha and Kama were to be acquired in this Ashram. Artha means
the acquisition of wealth and prosperity while the Kama means the enjoyments and pleasures,
including the sexual enjoyment. These two objectives, Artha and Kama must be acquired
simultaneously.
C) Vanaprasth-Ashrama
Next after the Grihastha-Ashrama, the third stage was termed as Vanaprasth- Ashrama. At this
stage, the husband and wife left the worldly life, detached themselves from the family and
usually went to forest for devoting their time in worship or upasana. This was the beginning of
the ultimate goal of human life. An individual, at this stage, should try to get rid of the illusions
(Maya) of this physical world and to realise the truth.
D) Sanyasa-Ashram
The last stage of human life was known as Sanyasa-Ashram. In this Ashram one had to give
up everything which was worldly. It was a life of complete renunciation. Its Considered civilly
dead, he was free to wander, living a life dependent on God alone. The sannyasis are
conspicuous in their saffron dress. They are often called sadhus After leaving home, wife,
children, and worldly possessions a bhikshu should dwell outside the village, should wander
from place to place without a companion so that he will free from attachments and the pangs
of separation.
2. Varnashrama Dharma
Hindu social structure was based on Varna Vyavstha, i.e., caste system. There are four castes,
namely, Brahmin, Kshatriya, Vaishya and Sudra, the first three of which were supposed to be
regenerate classes. According to Sukra Niti, Guna, Karma and Swabhava are the criteria for
the division of society into these four classes. According to another theory, first three so-called
upper classes descended respectively from the mouths. arms and thigh of Brahma, whereas the
Sudra came down from feet of Brahma. Yet another view about the basis of the classification
is the occupation and Karma of the people in society. There are four types of varnashrama
Dharama. they are
A) Brahmana (priests, scholars and teachers)
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The group of persons who engaged themselves into the study, Jap-Tapa. making of sacrifices,
etc. termed as Brahmans and were regarded as superior to other classes.
B) Kshatriya (rulers, warriors and administrators)
The group of persons who engaged themselves into the protection or people, study and war,
etc., called Kshatriyas, they were considered inferior to the Brahmans because they had lesser
power of self-control. They constituted the class of warriors.
C) Vaishyas (agriculturalists and merchants)
The group of persons who engaged themselves in the occupation of trade and commerce came
to be known as Vaishyas. Their main work was trade and business.
D) Sudra (laborers and service providers)
The fourth class of persons whose only duty was to serve people belonging to three castes were
called Sudras
3. Sanatana Dharma
The words, "Sanatana Dharma", come from the ancient Sanskrit language. "Sanatana" is a
Sanskrit word that denotes that which which is Anadi (beginningless), Anantha (endless) and
does not cease to be, that which is eternal and everlasting Sanatana-dharma is the oldest religion
in the world. It is based upon the collection of spiritual laws discovered by Rishi’s thousands
of years ago. The foundation of Sanatana Dharma is Sruti; Smritis are the walls; the Itihasas
and Puranas are the buttresses or supports. In ancient times, the Srutis were learnt by heart. The
teacher sings them to his pupils and the pupils sing them after him. They were not written in
book form. All the sects, all the philosophical systems, appeal to the Sruti, is the final authority.
The Smriti stands next in authority to the Sruti.

Conclusion

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SOURCES OF HINDU LAW

Explain/Enumerate the various Sources of Hindu Law OR Explain the Ancient and
Modern Sources of Hindu Law OR Explain Primary or Secondary Source of Hindu law
Introduction
Source of Law could be defined in various manners. It could mean "the maker of the law",
Cause of the Law', or 'the evidence of law'. According to Manu there are four sources of
Dharma, namely "the Vedas, the Smriti, the approved usage, and what is agreeable to one's
conscience. According to Yajnavalkya "the Sruti, the Smriti, the approved usage, what is
agreeable to one's soul (or good conscience) and desire sprung from due are ordained the
foundation of Dharma. Sources of Hindu Law can be divided into two parts – 1. Ancient
Sources. 2. Modern Sources.
A. Ancient Sources or Primary Source of Hindu law
Before the codification of Hindu Law, the ancient literature was the only source of the Hindu
law. These sources can be divided into four categories: -
1. Srutis
Sruti means "what is heard". The word is derived from the root “Sru” which means ‘to hear’ In
theory, it is the primary and paramount source of Hindu law and is believed to be the language
of the divine revelation through the sages. It is believed that the rishis and munis had reached
the height of spirituality where they were revealed the knowledge of Vedas. The Vedas are the
oldest spiritual scriptures of the world. The Srutis consists Vedas and the Upanishads. The
word Vedas derived from the root “vid” meaning ‘to know’. Veda literally means
“knowledge,” specifically the highest knowledge about God and man. Vedas are the spiritual
truth, said to have been a direct revelation from God through Dev Vani - the voice of God
to Rishis (self-realised saints) during their meditations. This truth was then passed on orally
through an unbroken chain of a Master-Disciple relationship. Hence the Vedas are also
called Shruti, there are four Vedas, they are: - Rig Veda-It is the earliest form of Veda (Praise
Knowledge). The oldest Veda is the Rigveda, Yajurveda-It is also called the book of prayers,
Atharvaveda-The book of magic and charms and Samaveda-The earliest reference for singing.
Upanishads –The word Upanishad derived from the Sanskrit word upa "means near"
and ni-ṣad "means sit down. Upanishad literally means "To sit at the Master's feet and listen to
His words or teachings." The Upanishads form the philosophical and spiritual essence of the
Vedas and transmit the highest knowledge about God, the soul and the world, as well as about
the importance of ceremonies and sacrifices. They are mostly written in the form of a
conversation between a disciple and his teacher (questions and answers). The Upanishads are
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the end part of the Vedas. There are total 108 Upanishads Some of the most famous
are Brihadaranyaka Upanishad, Taittiriya Upanishad, Kena Upanishad, Iso Upanishad,
Mundaka Upanishad, Atma-Bodha Upanishad, Mantrika Upanishad, Paramahamsa
Upanishad, Amrita-Bindhu Upanishad, Yoga-Chudamani Upanishad, Maha Upanishad
Skanda Upanishad, Brahma Upanishad and Mandukya Upanishad. Each of these
major Upanishads is connected to one of the four Veda
2. Smritis
Smriti means "what is remembered". Smritis are a written memoir of the knowledge of the
sages Many sages, from time to time, have written the concepts specified in Vedas. A
systematic study and teaching of Vedas started with Smritis. After the Vedic period, the
regulation of society was required. Thus, the study of Vedas and the incorporation of local
culture and customs became important. It is believed that many Smritis were composed in this
period and some were reduced into writing. The smritis can be divided into two parts:
A) Dharma Sutras
The Dharma sutras were written from 800 to 200 BC. They were mostly written in prose form
but also contain verses. They were considered as a training manual of sages for teaching
students which contained the knowledge of Vedas with local customs. They explain the duties
of men in various relationships. They do not pretend to be anything other than the work of
mortals based on the teachings of Vedas and the legal decisions given by those who were
acquainted with Vedas and local customs. The principal authors or writers of the Dharma Sutras
are:
a) Gautama - He belonged to Sam Veda school and deals exclusively with legal and religious
matters. He talks about inheritance, partition, and Stridhan.
b) Baudhayan - He belonged to the Krishna Yajurved school and was probably from Andhra
Pradesh. He talks about marriage, sonship, and inheritance. He also refers to various customs
of his region such as marriage to maternal uncle's daughter.
d) Vasishta - He was from North India and followed the Rigveda school. He recognized
remarriage of virgin widows.
B) Dharma Shastras
Dharma Shastras were mostly in poetry style and were based on Dharma sutras. However, they
were a lot more systematic and clearer. They dealt with the subject matter in three parts:
i. Aachara - This includes the theories of religious observances,
ii. Vyavahar -This includes civil law.
iii. Prayaschitta- This deal with penance and expiation.
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However, they were a lot more systematic and clearer. From the time of their composition, the
works of the Dharma Shastras have played a significant role in influencing Hindu culture and
law. In fact, the shastras were still being cited in cases of legal contracts as late as the mid-19th
century in some regions of India. The principal authors or writers of the Dharma Shastras are:
Manu- Manusmriti
This is the earliest and most important of all. It the most authoritative of the books of the Hindu
Code (Dharma-shastra) in India. Manu-smriti is the popular name of the work, which is
officially known as Manava-dharma-shastra. It is attributed to the legendary first man and law
giver, Manu. It contains 12 chapters of stanzas, which total 2,694. It deals with cosmogony;
the definition of the dharma; the sacraments (samskaras); initiation (upanayana) and the study
of the Vedas (the sacred texts of Hinduism); marriage, hospitality, funeral rites, dietary
restrictions, pollution, and means of purification; the conduct of women and wives; and the law
of kings. The Manu-smriti prescribes to Hindus their dharma i.e., that set of obligations
incumbent on each as a member of one of the four social classes (Varnas) and engaged in one
of the four stages of life (Ashramas).
Yajnavalkya -Yajnavalkya Smriti
Yajnavalkya also gave a lot of importance to customs but holds the king to be below the law.
He considers the law to be the king of kings and the king to be only an enforcer of the law. He
did not deal much with religion and morality but mostly with civil law. It includes most of the
points given in Manusmriti but also differs on many points such as the position of women and
Sudras. He was more liberal than Manu. Vijnaneshwar's commentary 'Mitakshara' on this
Smruti, is the most important legal treatise followed almost everywhere in India except in West
Bengal and Orissa. Though written after Manusmruti, this is a very important smriti. Its
language is very direct and clear. The text is the "best composed" and systematic specimen of
this genre, with large sections on judicial process theories, one which had greater influence in
medieval India's judiciary practice than Manusmriti. It later became influential in the studies
of the legal process in ancient and medieval India, during colonial British India, with the first
translation published in German in 1849. The text is notable for its differences in legal theories
from Manusmriti, for being more liberal and humane, and for extensive discussions on
evidence and judiciousness of legal documents.
Narada -Narada Smriti
Narada smriti is a 1028 verses very ancient Smriti. It has two commentaries. The first is by
Asahaya and other by Bhavasvamin. The treatise on Narada smriti is similar to Manusmriti.
Some of the subject dealt with the text are recovery of debts, deposits and lending, gifts,breach
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of contract of service, sale without ownership, violation of convention of guilds, settlement of

boundaries, dayabhaga (partition and inheritance), marital relations, crimes and punishments,
Vyavahara ( social conduct). Unlike Manu Narada supported the remarriage of widows,
gambling with state control and charging levy. Nāradasmṛti is an Indian literary tradition that
serves as a collection of legal maxims relating to the topic of dharma. This text is purely
juridical in character in that it focuses solely on procedural and substantive law. Known as the
"juridical text par excellence," the Nāradasmṛti is the only Dharmaśāstra text to not cover areas
such as righteous conduct and penance. Its focused nature has made the text highly valued by
rulers and their governments.
3. Commentaries and Digest
The third most important source of law is the digests and the commentaries written by various
authors of Hindu law. Commentaries generally comment on the smritis, the area of
commentaries is from the 7th century to 1800 AD. Commentaries also laid the foundation of
various schools of Hindu law. Digests contain the important aspects of all the smritis and
discussed their reconciling and contradictions. Various digests and commentaries have been
written by various authors on the two most famous smritis that is manusmriti and yajnavalkya
smriti. The principal Commentaries are:
1. Dayabhaga by Jimutavahana,
2. Mitakshara, a commentary on Yajnavalkya-Smriti by Vijnaneshwara,
3. Viramitrodaya by Mitra Misra,
4. Vivada Chintamoni, by Vachaspati Misra,
5. Vivada-Ratnakara, by Chandeshwara,
6. Dayatattwa, by Raghunandana,
7. Dayakramasangraha by Sri Krishna Tarkalankar,
8. Smriti, Chandrika, by Devan Bhatta,
9. Parashara Madhaviya, commentary on Parashara Smiriti, by Madhavacharya and
10. Vyavahara Mayukha, by Nilkantha Bhatt.
4. Custom and Usages
Customs are the most important and the oldest form of lawmaking, customs mean the
traditions, practices, activities, that people have been following for generations and overtime
recognized as law. The essence behind considering customs as a major source of law is that
since people follow customs and if some customs are not harmful to society, then the state has
no problem recognizing it. In order, that a custom becomes law there are some essentials which
it may fulfill such as a custom must be valid, it should be in continuity, it should be followed
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by a large number of people and last it must not be discriminating and should not be opposed
to public policy.
B. Modern Sources or Secondary Source of Hindu law
After the arrival of British many changes were brought in the personal laws of Hindus and
many legislations were also passed, the modern sources of Hindu Law the doctrine of justice
equity good consciousness, legislation, and precedents.
1. Precedents or Judicial Decisions
After the establishment of British rule, courts were established and the hierarchy was
introduced. Precedent means following the decision of the higher courts by the courts below it,
if a particular case has already been decided, it seems reasonable to follow the same decision
if the facts of the case are similar to the decided case. In today’s time, the decision of the
supreme court is binding on all the made by other courts.
2. Legislation
The legislation means the acts of the parliament, various Acts were passed by the legislature
such as the Child Marriage Restraint Act, 1929, Hindu Successsion Act, 1956, Hindu Marriage
Act, 1955, Hindu Minority and Guardianship Act, 1956. The legislation passed is binding upon
all the other sources of law. Legislation is codified this means it has been written in a proper
way and it has to accepted and followed by all the people governing it. In modern times
legislation is also called as the law-making body.
3. Justice, Equity and Good Conscience
In cases where there was no proper law to settle the disputes nor there was an existing law,
then the judges used to give judgments according to the concept of Justice Equity and Good
Consciousness. This doctrine was based on the concept of fair play, this doctrine did not have
a uniform application since thinking of one judge may be different from the other, however,
this doctrine played a huge role in transforming the personal laws of the Hindus.

Conclusion

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CUSTOM
Explain the ‘Custom’ as a Source of Hindu law OR under Hindu Law “A clear proof of
Custom or usage will outweigh the written text of law” Explain
Introduction
The word ‘custom’ literally, grammatically, or ordinarily means; tradition, practice;
usage; observance; way; convention; procedure; ceremony; ritual; ordinance; formality;
fashion; mode; manner; unwritten rule; habit; conventional social behaviour; etc. Custom play
a very important role in the formation of Hindu law. Custom is the parent of personal law in
all countries and India. Custom is a rule, which a particular family, class, community or district,
has owning to prolonged use, obtained the force of law. Section 3(a) of the Hindu Marriage
Act,1955, Section 3(a) of the Hindu Adoptions and Maintenance Act, 1956, and Section 3(d)
of the Hindu Succession act 1956 define Custom and Usage means any rule which, having been
continuously and uniformly observed for a long time, has obtained the force of law among
Hindus in any local area, tribe, community, group or family: In collector of Madurai v/s
Mootoo Ramalinga 1868, which is known as Ramnad case, Sir James Colville, Justice stated
that “clear proof of Custom or usage will outweigh the written text of law”.
Types or Kinds of Custom
Customs are of three types:
1. Local Customs- Local customs are those types of customs which exist in a certain
geographical locality and are thus part of that place’s culture. It is specific to that place
alone. However, when certain communities migrate, they take their customs with them.
And so, local customs are then further divided into two parts – geographical local
customs and personal local customs.
2. Family Customs - These are the customs that are followed by a family for a long time.
These are applicable to families where ever they live. They can be more easily
abandoned those other customs. In the case of Soorendranath vs Heeramonie and
Bikal vs Manjura, Privy Council observed that customs followed by a family have
long been recognized as Hindu law.
3. Class Customs- Such Custom related with caste. This Custom followed by a particular
profession or occupation people. e.g.-agriculture, trade, mechanical.
Essentials of valid Custom
1. Ancient
The custom must be ancient, which should have been established much earlier and have existed
for a long time uniformly. Antiquity of a custom is an essential and foremost element of a valid
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custom. Customs must belong to a very distant past. It must be followed by people from time
immemorial. Though Hindu Law did not fix any particular period of time to judge the antiquity
of the custom but English Law fixed year 1189 to test the antiquity of the custom.
2. Continuous
It is important that the custom is being followed continuously and has not been abandoned.
Thus, custom maybe 400 years old but once abandoned, it cannot be revived. It should be
followed without any interruption. If a custom is not continued for a period of time or is
discontinued it comes to an end and such tradition or practise is no longer considered to be a
custom.
3. Clarity and Unambiguity
There should be clarity in giving the evidence of a custom. The group of people who are
following it must prove it through their actions or acts or general instances for the existence of
such custom. In collector of Madura v. Mootoo Ramalinga, the court held that if there is clear
proof of custom, it will supersede the written text or laws.
4. Reasonableness
There must be some reasonableness and fairness in the custom. Though what is reasonable
depends on the current time and social values. A custom must be reasonable, although it is not
necessarily founded on reason. But an unreasonable custom is void and no amount of reasoning
would make it valid. Customs differ from place to place. The reasonableness is, therefore, to
be determined in context of society in which it exists. There may be certain customs, which are
to be held unreasonable in all times and in all societies.
5. Not against morality
It should not be morally wrong or repugnant. For example, a custom to marry one's
granddaughter has been held invalid. In the case of Chitty vs. Chitty 1894, a custom that
permits divorce by mutual consent and by payment of expenses of marriage by one party to
another was held to be not immoral. In the case of Gopi Krishna vs. Jagoo 1936, a custom
that dissolves the marriage and permits a wife to remarry upon abandonment and desertion of
the husband was held to be not immoral.
6. Not against public policy
If a custom is against the general good of the society, it is held invalid. In the case of Mathur
vs ESA, a custom among dancing women permitting them to adopt one or more girls was held
to be void because it was against public policy.
7. Not against any law

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Customs to be valid and accepted in the eyes of law, it must not be in derogation with the laws
of the country. The customs must not be opposed to dharmashastras. It must not be forbidden
by any laws or enactment of the legislature. It is necessary that customs are collateral with the
laws to be accepted as a valid custom.In the case of Prakash vs Parmeshwari, it was held that
law means statutory law.
8. Onus of Proof/ Burden of proof
The burden of proving the existence of a custom lies on the person who alleges it. Where the
members of a Hindu family set up a custom derogatory to the law, the burden lies on them to
prove the custom. A custom which has been judicially recognised needs no further proof. The
Supreme Court in Munna Lai v. Raj Kumar observed that when a custom was repeatedly
brought to the notice of the court of a country, the court might hold that the custom had been
introduced into the law without the necessity of its proof in each individual case. Harihar Prasad
Singh V. Balmiki Prasad Singh, In this case supreme court held that burden of proof lies upon
a person who claims its existence and such person have to prove that the custom is valid enough
to be established contrary to laws. In case where a person wants any custom to be discontinued,
again such burden lies upon that person to prove that he has reasonable grounds and reasons
for the discontinuance of such customs.
9. Custom cannot be Created by Agreement
A mere agreement among certain persons to adopt a particular rule cannot create a new custom
binding on others, whatever its effect may be upon themselves.

Conclusion

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SCHOOLS OF HINDU LAW

Discuss the different schools of Hindu Law OR Write an explanatory note on two main
schools of Hindu Law and state the distinctions between them. OR Explain Salient
Features of Mitakshara and Dayabhaga Schools
Introduction
School means rules and principles of Hindu Law. Schools of Hindu Law came into
being when different commentaries appeared to interpret the Smritis' with reference to different
local customs that were in vogue in different parts of India. In Rutcheputty v. Rajendra, it has
been observed by the Privy Council that the different local customs prevailing in different
provinces of India. The commentators on the Smritis could not ignore the local customs and
usages and while interpreting the texts, they eventually incorporated different local customs.
The local conditions and customs of the different provinces have, therefore, gone to mould the
principles of law prevailing in each province.
Schools of Hindu Law
The Schools of Hindu Law has emerged from the commentaries and digests. There are
two main schools namely: 1) Mitakshara School and 2) Dayabhaga School. The Mitakshara
and Dayabhaga are the two important schools of Hindu Law which has given us the required
information about the present legislated laws.
Mitakshara Schools of Hindu Law
The Mitakshara School is a running commentary on the code of Yajnavalkya, and was
written by Vijnaneshwara in the latter part of the eleventh Century and prevails in all parts of
India as a Supreme authority except in Assam and Bengal. But in some matters Mitakshara
prevails even in Assam and Bengal as authority on all questions in respect of which Dayabhaga
is silent. The Mitakshara School is divided into five sub schools prevailing in different parts of
India. These different schools have the same fundamental principles and acknowledge the
supreme authority of the Mitakshara, but differ in matters of details, especially in the matters
of adoption and inheritance. These five sub-schools are namely: -
1. Benaras law school
This law school comes under the authority of the Mitakshara law school and covers Northern
India including Orissa. Viramitrodaya Nirnyasindhu vivada are some of its major
commentaries.
2. Mithila law school

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This law school exercises its authority in the territorial parts of tirhoot and north Bihar. The
principles of the law school prevail in the north. The major commentaries of this school are
Vivadaratnakar, Vivadachintamani, smritsara.
3. Maharashtra or Bombay law school
The Maharashtra law school has the authority to exercise its jurisdiction over the territorial
parts including Gujarat Karana and the parts where there is the Marathi language is proficiently
spoken. The main authorities of these schools are Vyavhara Mayukha, Virmitrodaya, etc.
4. Madras law school
This law school tends to cover the whole southern part of India. It also exercises its authorities
under Mitakshara law school. The main authorities of this school are Smriti Chandrika,
Vaijayanti, etc.
5. Punjab law school
This law school was predominantly established in east Punjab. It had established its own
customs and traditions. The main commentaries of this school are viramitrodaya and it
established customs.
Dayabhaga School
The Dayabaga School which is followed mainly in Bengal and Assam., 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. The Dayabaga or the Bengal school as it is sometimes called is the reformist school
of Hindu Law. The Dayabaga School is not divided into any sub-schools. The authorities of
this school are - Dayatatva, Daya-sangraha, Viramitrodaya and Dattaka-Chandrika.
Difference between Mitakshara and Dayabhaga Schools
1. Right to ancestral property
Under Mitakshara Schools, the right to property for the son arises by birth; hence the son is a
co-owner with the father in ancestral property. This means the moment a son is born in the
family; he receives the right in the joint family property. Under Dayabhaga Schools The right
to property appears after the death of the last owner. Therefore, the son has no right to ancestral
property during his father’s lifetime.
2. Power of Alienation
Under Mitakshara School, the father has the limited power of Alienation for an ancestral
property Under Dayabhaga School, the father has absolute power of alienation for ancestral
property

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3. Right to Enforce Partition

Under Mitakshara School, the son can demand partition of the joint family property even
against the father, Under Dayabhaga School, the son cannot demand partition against the
father.
4. Right to Widow
Under Mitakshara School, the widow of a deceased Co-parcener cannot enforce partition of
her husband’s share against his brothers. Under Dayabhaga School, 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.
5. Right of Survivorship
Under Mitakshara School, the survivorship rule is prevalent. In case of the death of any member
in the joint family, his interest shall pass to other coparcener. Under Dayabhaga School, the
interest of the member on their death shall pass on to their heirs like widow, son, daughters.
6. As regard inheritance
Under the Mitakshara school, inheritance is governed by the rule of consanguinity, i.e., blood
relationship, whereas under the Dayabhaga school inheritance is governed by the rule of
spiritual efficacy.
7. Woman’s Property Right
In Mitakshara School property rights of the women were restricted to a great extent; women
were believed to never be able to become a coparcener. Under the Dayabhaga school,
the property allotted to a woman on partition did not become her stridhana.
8. Right to Maintenance:
Under the Mitakshara and Dayabhaga school, A coparcener’s wife and children are entitled to
be maintained out of coparcenary funds and a member of a joint Hindu family is under a
corresponding legal obligation to maintain all the male members, their wives and unmarried
daughters in the joint family

Conclusion

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 Family Law – I Y. S Visveswarapura College of Law, Bangalore

APPLICATION OF HINDU LAW

Who is Hindu? Who are the persons governed by Hindu Law? OR Who are Hindu?
Persons to whom Hindu Law Does and Does not Apply?

Introduction

The word "Hindu" originates from the Sanskrit word for river, sindhu. The Indus River running
through northwest India into Pakistan received its name from the Sanskrit term sindhu. The
Persians designated the land around the Indus River as Hindu, a mispronunciation of the
Sanskrit sindhu.
When a question arises as to whom Hindu Law applies, the obvious answer is that
Hindu Law applies to Hindus. The question again arises as to who are Hindus? The term
"Hindu" denotes all those persons who profess Hindu religion either by birth, or by
conversion to the Hindu faith. In the Case of Yagnapurusdaji vs Muldas AIR 1966 In the
case the Supreme Court accepted the working formula evolved by Bal Gangadhar Tilak
regarding Hindu religion. According to him “Acceptance of absolute supremacy of Vedas with
reverence, recognition of the fact that the means or ways of salvation are diverse and realization
of the truth that the number of Gods to be worshipped is large, that indeed is the distinguishing
feature of Hindu religion”.
Persons to Whom Hindu Law Applies
A) According to Uncodified Hindu Law
Uncodified Hindu Law Applies to following categories of persons
1. Hindu by Birth
a) When both the parents are Hindus
A child who’s both the parents were Hindus, Sikhs, Jains or Buddhists at the time of
his birth, is regarded as Hindu. Such a child may be legitimate, illegitimate he will be
a Hindu.
(Legitimate" children are those whose parents are married)
b) When One Parent is Hindu
Any person whose father or mother is a Hindu and the children are brought up as Hindu.
Sapna vs State of Kerala, AIR 1993
In this Case Sapna Jacob who was child of a Hindu mother Uma Jacob and Christian father
V.M. Jacob. Mother continued to follow the Hindu religion and she was not baptized or

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 Family Law – I Y. S Visveswarapura College of Law, Bangalore

converted to Christianity. In this case court has held that Sapna Jacob is not Hindu but she is
Christian, So the bringing up of children is essential element.
Moyna Boyee vs Octaram 1861
In the case the illegitimate children where the father is a Christian and the mother a Hindu, and
the children are brought up as Hindus. The court held that if either of the parents is Hindu and
child is brought up as Hindu then he would be considered as a Hindu.
2. Hindu by Religion
Person who follows Hindu religion in any of its forms or development either practising it or by
professing it is a Hindu. Those who are originally Hindus, Sikhs or Buddhist by religion.
Shastri vs Muldas, AIR 1961
This case is related to Swami Narayan temple at Ahmedabad. There is a sect known as poojaries
who were managing the temple and they restrained Satsangis to enter the temple, they argued
that Satsangi is different religion and they are not bound by Hindu law. In this case Supreme
Court held that Satsangis, Aryasamajis and Radha Soami all sect belongs to Hindu religion
because they originated under Hindu philosophy
3. Hindu by Conversion
A convert is a person Who renounces his faith and adopts another religion. Any person
converted to Hinduism, Jainism, Buddhism or Sikhism is a Hindu.
Peerumal vs Poonuswami AIR 1971
In the case the court put down necessary conditions for who are converted Hindu religion. First
is he voluntarily puts his intention to live as a Hindu, Second, he starts living as a Hindu and
Hindu community accepts him as a part of its own
4. Hindu by Re Conversion
A person who is a re-converted to Hinduism is also a Hindu. A person who ceases to be a Hindu
by converting to a non-Hindu religions Will again become Hindu if he re-converts to any of
the four religions of Hindus. It is not necessary that he re-converts to the same religion from
which he was converted to the non-Hindu religion, thus a Jain who was converted to Islam will
be a Hindu if he Re- Converts to Sikhism.
5. Hindu by Declaration
Mohandas v. Devasan Board 1975
In this case Jesudas a famous pop singer was the Christian by birth. He used to perform his
devotional Hindu music in a temple and used to worship Hindu God. He also filed a declaration
that he is a follower of Hindu faith. The court held that because his declaration is Bonafede to
accept Hindu faith thus he becomes Hindu by conversion
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 Family Law – I Y. S Visveswarapura College of Law, Bangalore

B) According to Codified Hindu Law

Section 2 of the Hindu Marriage Act 1955, Section 2 of the Hindu Succession Act 1956, Section
2 of the Hindu Adoption and Maintenance Act 1956 and Section 3 of the Hindu Minority and
Guardianship Act 1956 define to whom Hindu law apply to a person who is Hindu. The
following persons are Hindus for the purposes of these codified laws:
1. Any person who is Hindu by religion irrespective of or regardless of its forms or
developments, including—
a) A Virashaiva,
b) A Lingayat,
c) A follower of the Brahmo, Prathana or Arya Samaj.
2. Any person who is either—
a) A Buddhist by religion; or
b) A Jain by religion; or
c) A Sikh by religion.
3. Any other person domiciled in the territories to which this Act extends who is not—
a) A Muslim by religion, or
b) A Christian by religion, or
c) A Parsi by religion, or
d) A Jew by religion,
4. The following persons are Hindus, Buddhists, Jains or Sikhs by religions:
a) Any child, legitimate or illegitimate, both of whose parents (father and mother) are
Hindus, Buddhists, Jains or Sikhs by religion;
b) Any child, legitimate or illegitimate, one of whose parents either (father or mother) is
a Hindu, Budhist, Jaina or Sikh by religion and who is brought up as a member of the
tribe, community, group or family to which such parent (either the father or the mother)
belongs or belonged;
c) Any person who is a convert or reconvert to the Hindu, Buddhist, Jaina or Sikh religion.
To whom Hindu law does not apply
➢ to converts from the Hindu to the Mohammedan faith
➢ to the Hindu converts to Christianity
➢ to the Hindu converts to Parsi
➢ to the Hindu converts to Jew
Conclusion

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