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Hindu Law: Principles and
Enactments
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 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
Hindus by birth Off shoots of Hinduism Persons who are not Muslims, Christians, Parsis or Jews Converts to Hinduism Reconverts to Hinduism Harijans Aboriginal Tribes
To whom Hindu law does not apply
Converts from the Hindu to the Mohammedan faith The Hindu converts to Christianity 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:
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
Family Custom
These are the customs that are followed by a family from a long time. These are applicable to families wherever they live.
Class or Caste Custom
These are the customs that are followed by a particular caste or community. It is binding on the members of that community or caste. By far, this is one of the most important sources 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 the notice of the court repeatedly, no further proof is required.
Usage and Custom
The term "custom" and "usage" is commonly used in commercial law, but they 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.
The Doctrine of Stare Decisis
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 the Supreme Court is binding on all courts across
India, and the judgment of the High Court 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 of 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 Supreme Court on the basis that new customs cannot be invented. However, Tamil Nadu 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 situations, the decision should be given that is acceptable to at least ten people who are knowledgeable in shastras. Yagyavalkya has said that wherever there are conflicting rules, the decision must be based on 'Nyaya'.
Schools of Hindu Law
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 of 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
The Dayabhaga School
It exists in Bengal and Assam only. It differs from the Mitakshara School in many respects. Dayabhaga School is based on the code of Yagnavalkya commented by Jimutuvahana. Inheritance is based on the principle of
Can a Husband Compel his Wife to Resign her Job and Stay
with him?
The text discusses the issue of whether a husband can compel his wife to resign her job and stay with him, in the context of a petition for restitution of conjugal rights.
Void and Voidable Marriages
Void Marriages
The text discusses the concept of void marriages under Section 11 of the Hindu Marriage Act, 1955. A marriage is void in the following three circumstances:
At the time of marriage, a party has a living spouse. The parties are within the prohibited degrees of relationship. The parties are within the sapinda relationships.
The text also discusses the Constitutionality of Section 11 , the Applicability of Section 11 , the issue of Delay , Death of a Spouse , Bigamous Marriages , Injunction , and the Effects of Void Marriages , including the Legitimacy of Children.
Voidable Marriages
The text discusses the concept of voidable marriages, including the Grounds for the Remedy , such as Impotency , Unsoundness of Mind , Consent obtained by Force or Fraud , and Pregnancy of the Bride. It also covers the Petition for Annulment , the Decree for Annulment , the Distinction between Void and Voidable Marriages , and the Legitimacy of Children in both cases.
Judicial Separation
The text discusses Judicial Separation under Section 10 of the Hindu Marriage Act, 1955, including the Grounds for judicial separation, such as Adultery , Cruelty , Desertion , Conversion , Unsoundness of Mind , Leprosy , Venereal Disease , and Renunciation of the World. It also covers the Presumption of Death as a ground for judicial separation.
The text further discusses the Power of the Court to Rescind the Decree of Judicial Separation and the Effects of Judicial Separation.
Divorce
Divorce in Ancient Hindu Law
The text provides a historical perspective on the concept of divorce in ancient Hindu law, where divorce was considered a sin and the marital tie was believed to be unbreakable.
Grounds for Divorce
The text discusses the various Grounds for Divorce available under Section 13 of the Hindu Marriage Act, 1955, including Adultery , Cruelty , Desertion , Conversion , Unsoundness of Mind , Venereal Disease , Renunciation of the World , Presumption of Death , Non-resumption of Cohabitation after Judicial Separation , and Non-compliance with the Decree of Restitution of Conjugal Rights.
It also covers the additional grounds available specifically for the wife, such as Bigamy , Rape, Sodomy and Bestiality , Maintenance Decreed to Wife , and Repudiation of Marriage by Wife.
Alternate Relief and Divorce by Mutual Consent
The text discusses the concept of Alternate Relief under Section 13A of the Hindu Marriage Act, 1955, where the court may grant a decree of judicial separation instead of divorce in certain cases.
It also covers the provision of Divorce by Mutual Consent under Section 13B, which was introduced through the Hindu Marriage (Amendment) Act,
Distinction between Judicial Separation and Divorce
The text highlights the key Distinctions between Judicial Separation and Divorce , including the status of the marital relationship, the restoration of the original relationship, the ability to remarry, and the availability of maintenance.
Presentment of Petition for Divorce and Remarriage after
Divorce
The text discusses the Presentment of Petition for Divorce under Section 14 of the Hindu Marriage Act, 1955, which imposes a one-year waiting period before a divorce petition can be filed, with certain exceptions.
It also covers the provisions for Divorced Persons to Marry Again under Section 15 of the Act.
Doctrine of Pious Obligation
The text refers to the Doctrine of Pious Obligation, which is a concept in Hindu law, but does not explain it further.
Partition and Reunion
The text states that the topics of partition and reunion within the Mitakshara Joint Family are discussed, but does not provide any details.
Religious and Charitable Endowment
The text indicates that the topic of religious and charitable endowments is covered, but does not elaborate on it.
Inheritance and Succession
Historical perspective of traditional Hindu Law relating to
Inheritance
The text mentions that the historical perspective of traditional Hindu law relating to inheritance is discussed, but does not provide any specifics.
Detailed study of Hindu Succession Act, 1956
The text states that a detailed study of the Hindu Succession Act, 1956 is included, but does not provide any further information.
Stridhana- Woman's Property
The text refers to the concept of Stridhana, which is the woman's property in Hindu law, but does not elaborate on it.
Recent State and Central Amendments to Hindu
Succession Act
The text indicates that recent state and central amendments to the Hindu Succession Act are covered, but does not provide any details.
Gifts and Testamentary Succession – Wills
The text mentions that the topics of gifts and testamentary succession, including wills, are discussed, but does not provide any additional information.
Minority and Guardianship
Law relating to Hindu Minority and Guardianship
The text states that the law relating to Hindu minority and guardianship is covered, including the kinds of guardians.
The Hindu Minority and Guardianship Act, 1956
The text indicates that a detailed study of the Hindu Minority and Guardianship Act, 1956 is included, but does not provide any further details.
Duties & Powers of Guardians
The text mentions that the duties and powers of guardians are discussed, but does not elaborate on this topic.
Hindu Adoption and Maintenance Act, 1956
The text states that a detailed study of the Hindu Adoption and Maintenance Act, 1956 is included, but does not provide any additional information.
Case Laws
The text refers to two case laws: Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228 and Maintenance: Traditional Rights and Rights under Hindu Adoption & Maintenance Act 1956, but does not provide any details about these cases.
The Hindu Adoption and Maintenance Act,
1956
Application of Act
The Hindu Adoption and Maintenance Act, 1956 applies to all Hindus, including Buddhists, Jains, and Sikhs.
Definitions
The Act provides definitions for key terms such as "father", "mother", and "guardian".
Overriding effect of Act
The provisions of this Act override any text, rule, or interpretation of Hindu law or any custom or usage as part of that law.
Persons capable of giving in adoption
Only the father, mother, or guardian of a child can give the child in adoption. The father, if alive, has the sole right to give the child in adoption, but this right cannot be exercised without the consent of the mother, unless she has renounced the world, ceased to be a Hindu, or been declared of unsound mind by a court. The mother can give the child in adoption if the father is dead, has renounced the world, ceased to be a Hindu, or been declared of unsound mind by a court. If both parents are dead, have renounced the world, abandoned the child, or been declared of unsound mind, or the child's parentage is unknown, the guardian can give the child in adoption with the prior permission of the court. The court must be satisfied that the adoption is for the child's welfare and that the applicant has not received any improper payment or reward for the adoption.
The courts have held that the adoption of a "step-son" by the step-mother is invalid, as she does not have the capacity to give the child in adoption.
Persons who may be adopted
A person may be adopted if they are: 1. A Hindu 2. Not already adopted 3. Unmarried, unless there is a custom or usage that permits the adoption of married persons 4. Under the age of 15, unless there is a custom or usage that permits the adoption of persons over 15
The courts have clarified that a person aged 28 cannot be adopted, as the Act prescribes the age limit of 15. However, the adoption of a married Jat boy over 15 has been upheld based on the customs of that community.
Other conditions for a valid adoption
The Act outlines additional conditions for a valid adoption, such as the effects of adoption on the adopted child's marital prospects and property rights.
Effects of adoption
The Act specifies the effects of a valid adoption, including: - The adopted child cannot marry anyone they could not have married in their birth family.
- The adopted child's pre-existing property rights are maintained. - The adopted child does not divest any person or estate that vested in them before the adoption.
Maintenance and other provisions
The Act also includes provisions related to the right of adoptive parents to dispose of their properties, the determination of the adoptive mother in
certain cases, the prohibition of certain payments, and the maintenance of wives, widowed daughters-in-law, children, and aged parents.
Case Laws
The Act has been the subject of various court rulings, including Brijendra v. State of M.P., AIR 2008 SC 1058, which provided further interpretation and clarification of the Act's provisions.
