INTRODUCTION
Law is a system of rules that describes the right procedure or behavior of living in a society. India is a secular State where many religions like Hindu, Muslim, Sikh, Christian and Parsi live together. Hindu law is a personal law, which is applicable upon all Hindus.Personal law may be defined as that branch of law which deals with matters pertaining to a person and his or her family. Personal Law is the law by which an individual is governed in respect of various matters such as, principles relating to marriage, divorce, maintenance, adoption, inheritance, guardianship, succession, etc. The word Hindu is extremely popular and famous term. In modern times important Hindu laws are –
- Hindu Marriage Act 1955
- Hindu Adoption and Maintenance Act 1956
- Hindu Minority and Guardianship Act 1956, and
- Hindu Succession Act 1956.
NATURE OF HINDU LAW
It is believed that Hindu law is a divine law. It was revealed to the people by God through Vedas. Various sages and ascetics have elaborated and refined the abstract concepts of life explained in the Vedas. It proceeds on the theory that Hindu law was revealed to the sages who had attained great spiritual heights and they were in communication with supreme poweri.e. God.
- According to Dharmashastra writers, law was taken to be dynamic i.e. it should respond to the needs and requirements of the given period. Hindu law is not a king made law unlike the concept given by Austin. Under Hindu law the sovereign or the King is not immune from Dharma Hindu law is not lex-loci but personal law.
- According to Hindu jurists, law is the enforceable part of Dharma. Dharma does not emanate from sovereign. It generally includes all kinds of rules, religious, moral, legal, physical, metaphysical, in the same way as the law does, in its widest sense.
- According to Mayne, Hindu law is the law of ‗Smritis‘ as expounded in the Sanskrit Commentaries and Digests, which as modified and supplemented by custom, is administered by the courts.
ORIGIN OF HINDU LAW
The word ‗Hindu‘ came into existence through Greeks who called the residence of the Indus Valley nation as ‗Indoi‘. Later it became ‗Hindu‘.The key ideal before a Hindu has always been the achievement of the moksha, the attainment of salvation. Hindu law, over five thousand years has gone through phases. There are mainly two views regarding the origin of Hindu law i.e.
1. Origin is based on divine aspect2. Origin is based on custom and usage
According to Hindus, Hindu law has been derived from Vedas, the Upanishads, the Geeta, or any other Hindu scripture which are relatively from the almighty. As per this view, law was independent of state and it was binding on the sovereign as well as on its subjects. Hindu law is considered ―Apauruseya‖. A view emerging from these texts leads to the recognition of the law as Dharma. The term dharma can be loosely translated as ―duty‖. Many Hindu Jurists believe that Law is an enforceable part of Dharma. Thus, the Law is Dharma.
According to the Second opinion Hindu law is based upon immemorial customs, which existed prior to and independent of Brahmanism. At the time of Aryans there was number of usages and Brahmans modified their customs by introducing the religious element in legal concepts.
Thus the belief is that the primary sources of Hindu laws are Shrutis, Smritis, Upnishads, customs, digests, and commentaries. The Hindu Laws practiced during the colonization were based on Manusmriti. However, the genesis of Hindu law cannot be determined accurately owing to its centuries-old origin.
Manohar Joshi v/s NitiaBhausher Patil, 1996explain the term Hinduism related to Hindu as the life style and mentality of this continent.
It is believed that Hindu Law is a Divine Law and had been revealed by the God through the Vedas to the people. Sources of Hindu Law can be divided into two parts - Ancient and Modern. Before the codification of Hindu Law, the ancient literature was the only source of the law. It includes religious text such as Shrutis and the Smritis, aside from that this source includes Commentaries & digest and Custom.
Ancient Sources of Hindu Law:
According to the traditional source of Hindu law, there are 4 sources of Hindu law, which are as follows:
1. Shruti (Vedas)
2. Smrities
3. Digest and commentaries.
4. Customs
1. Shruti
Shruti is claimed to be the major source of Hindu law. The word is derived from the root ―shur‖. The word Shruti means; ‗what was heard‘ and Hindu law is considered as revelation by God, which is contained in Shruti. Shruti is divided into Vedas, Brahmanas, Aranyak and Upanishad. Another term for Shruti is Veda. It includes 4 vedas – Rigveda, Yajurveda, Samveda and Athravaveda. The brahmins used to pronounce whatever was written in these Vedas to the people. Since brahmins were considered to be most knowledgeable people, whatever they said was of supreme importance therefore shrutis contain what‘s written and pronounced by the brahmins. It contains theories about sacrifices, rituals, customs.
2. Smriti
This Smriti is the oldest and most vital of all. Smriti provides supplementary exposition of the rules contained in Vedas. Smriti is derived from the word ―smri‖ which means to remember. Smritis are those parts of shrutis which the sages forgot to put in their original form and thus shrutis are considered to be the basis of smritis. There are 2 kinds of smritis – Dharmashashtras and Dharmasutras. Dharmashashtras contains the principles regarding the moral code of conduct for Hindus, whereas Dharmasutras contains the principles regarding the government, caste, the connection between people, economic affairs, eating habits, etc.Technically smritis mean those works which are created by the virtue of memory of sages. The basis of smritis is shrutis. Smritis can be referred to as a step ahead of smritis.
There is a very thin line of difference between the two. The basic difference lies in the fact that dharamsutras are written in the form of prose, in short maxims while dharamshashtras are written in the form of shlokas (poetry).
There are many Smriti writers and it is impossible to determine how many authors are there of smrities. However, there are some notable Smriti writers, enumerated by yajanvalkya are Manu, Attri, Vishnu, Harita, Yama, katyana, Brihaspati, Parashar, Vyas, etc.
3. Manusmriti
The name of the author of manusmriti is unknown as the author has formulated it under a hypothetical name of Manu, who was considered to be the first human. Maybe it was done to gain divine and authoritative status. Manusmriti has 12 chapters and 1294 shlokas and it is a collection of rule of law. As per the Manusmriti king is subordinate to law but has divine powers with divine rights. It believed in strict rules. It is pro- Brahamins and harsh on Shudras and women. He holds customs to be of utmost importance and asks the king to follow customs and he cloaked the king with divinity.
4. Commentaries and Digest –
Digests and commentaries came after Smritis during the 7th century to 1800 A.D. The evolution of different schools of Hindu law is a result of these digests and commentaries as these digests and commentaries are interpretations of the Smriti. They expanded the scope of Hindu law and played a serious role in developing the concept of hindu law. Single interpretation of the Smritis is called as a commentary whereas Digest contains all the important aspect of Smritis. Dayabhaga and Mitakshara are considered to be the most important commentaries.
One of the most important digest is Jimutvahan‘s Dayabhaga that is applicable in Orissa and Bengal. Mitakshara is one of well-known and supreme source of law in India. It is based on the commentaries written by Vijayneshwara on the code of yajanvalkya while Dayabhaga law school is based on the commentaries of Jimutvahana. Dayabhaga and Mitakshara are two main sources of Hindu law in India.
5. Custom –
Customs are the most important and the oldest sort of lawmaking, customs mean the traditions, practices, activities that has been practiced in society since past. This practice is under the continuous observations of individuals. Smritis has given importance to customs. It is superior to written law. Most Hindu law is based on the customs and it is recognized as a legit means of a source of law even in Smritis also. Customs can be classified into 4 types:
Local customs:
These customs are followed in a particular geographical area and its application is limited to that particular area only. For example in Rajasthan, there was a custom of child marriage prevalent.
Caste and community customs:
These customs prevail in a certain community of people and the people of that particular community follow the custom. For example in Sikhs, marriage is solemnized by Anand Karaj.
Family customs:
It refers to customs that exist in a particular family. They can be easily abandoned as compared to other forms of customs.
Guild customs:
These customs are followed by a certain group of traders.
Essentials of valid custom:
The following are the essentials of a valid custom:
(1) Ancient,
(2) Invariability and continuity,
(3) Reasonableness,
(4) Clarity and unambiguity,
(5) Not opposed to morality or public policy,
(6) Not opposed to express provisions of law,
(7) Onus/Burdon of proof- on the person who alleges it.
(8) Judicial notice of a custom.
Deivanai Achi v. chidambaram (1954) Mad. 667.
In the instant case it was held that in order to become legally sanctioned by law and binding on the people a custom must be continuous in practice, it should not be vague and ambiguous and should not oppose the well-established public policy. A customary rule must be in the complete observation of society.
Laxmi v. bhagwantbuva AIR 2013 SC 1204
In the instant case, the Supreme Court stated that a custom becomes legally enforceable when the majority of people make the continuous use of such practice.
6. Usage
The words customs and usages are often used interchangeably but there is some sort of distinction between the two. Usage is the repetition of acts while custom is a law or general rule that arises from such repetition. A usage may exist without custom but custom can never exist without usage. Usage derives its authority from the parties to the transaction but custom where existing is binding on the parties.
Modern sources of Hindu law–
After the advent of British many changes were brought in the personal laws of Hindus and many legislations were also passed. Modern sources of Hindu law refer to those sources which are comparatively new sources that emerged over time and evolved in the present form. Following are the main source of Hindu law:
1. Equity justice and good conscience
2. Legislation
3. Precedent
1. Equity justice and good conscience
Equity means fairness in dealing. These are the basic rules of law. This rule of law applies when an existing law doesn‘t apply in a case where there was no proper law to settle the disputes, then the judges used to give judgments according to the concept of Equity and Good Conscience. This doctrine played a major role in changing the personal laws of the Hindus.
For example- a rule of law founded on the public policy that the murdered is to be disqualified from succeeding the properties of the victim found in the Hindu succession act 1956.
2. Legislation
The legislation is an act of parliament that plays an important role in the formation of Hindu law. The legislation is often regarded as a tool for social change. After the independence of India, there has been a steep increase in legislation regarding the codification of personal laws. After codification, any point dealt with by the codified law is final. The enactment overrides all prior law, whether based on custom or otherwise unless an 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.
In modern society, this is the only way to bring in new laws. The parliament, in accordance with the needs society, constituted new laws. For example:
- The Hindu marriage Act
- Hindu succession Act
- Hindu minority and guardianship Act,
- Hindu adoption and maintenance Act, etc.
These statutes came into force on different dates with a gap of several months in order to prevent communal disorder in the country that could occur if there were sudden changes in the personal laws.Also, most of the Hindu laws have now been codified as mentioned in the beginning.
3. Precedents –
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 decisions made by other courts.
Precedent is called to be a source of Hindu law in two senses –First – practically all the important principles and rules of Hindu law have now been embodied in case law. In such matters, recourse to the source is not necessary. Reference to a leading decision is enough.
Secondly, – Precedent is a source of law in the sense that by the purpose of judicial interpretation, doctrines, principles, and rules of law stand modified or altogether principles, doctrines, and rules have been introduced in the body of Hindu law. For these principle doctrines and rules, the sources of authority are Precedent.
Thus, Hindu law has been critiqued for its orthodoxy, patriarchal character and does not bear a really modern outlook of society. There are many areas where the Hindu law must upgrade itself. It is often said that proper codification of Hindu law without room for ambiguity is that the need of the hour. There are many Smritis which are yet to be found consistent with Historians and lots of conflicts of opinions and interpretations have been arisen for the prevailing ones, thus creating a window of ambiguity under Hindu law. There are also several areas where Hindu law is silent. It is often said that where this sources of Hindu law are uninviting the Legislature could check out sources and customs of other religions and incorporate them into Hindu law if it caters to the necessity of the society and meets the test of the time.
SCHOOLS OF HINDU LAW
Due to the emergence of various commentaries on Smriti and Shruti, different schools of thoughts arose. School means rules and principles of Hindu Law which are divided into opinion. It is not codified. Schools of Hindu law are considered to be the commentaries and the digestives of the Smritis. These schools have widened the scope of Hindu law and explicitly contributed to its development. The two major schools of Hindu law are as follows-
1. Mitakshara
2. Dayabhaga
Mitakshara School prevails throughout India except in Bengal. It is a running commentary on the code of Yajnavalkya (Yajnavalkya Smriti). Mitakshara is an orthodox School whereas the Dayabhaga is Reformist School. The Mitakshara and Dayabhaga Schools differed on important issues as regards the rules of inheritance. However, this branch of the law is now codified by the Hindu Succession Act, 1956, which has dissolved the differences between the two. Now, the main difference between them is on joint family system. Mitakshara is further divided into five sub-schools namely:
1. Benaras law school
This law school comes under the authority of the Mitakshara law school and covers Northern India including Orissa. Viramitrodaya Nirnyasindhuvivada are some of its major commentaries.
2. Mithila law school
This law school exercises its authority in the territorial parts of Tirhut 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
This is also one of the most important schools of hindu laws. It exists in Bengal and Assam only. Its primary focus was to deal with partition, inheritance and joint family. The Yagna Valkya Smriti and some other Smritis are commented on by Jimutavahana under the title Dayabhaga. It has no sub-school. Dayabhaga School is based mainly 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 and some parts of Assam only.
In Dayabhaga school various other commentaries were followed such as:
- Dayatatya
- Dayakram-sangrah
- Virmitrodaya
- Dattaka Chandrika
The main features of this School are as follows:
- 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.
- Each brother has ownership over a definite fraction of the joint 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 descendants
- On the death of the husband the widow becomes a co-parcenar with other brothers of the husband. She can enforce partition of her share.
DIFFERENCE BETWEEN MITAKSHARA AND DAYABHAGA SCHOOLS:
The differences between the Dayabhaga and the Mitakshara schools of law may be categorized under the following: –
1. Joint Family: –
According to the Mitakshara law school a joint family refers only to the male member of a family and extends to include his son, grandson and great-grandson. They collectively have co-ownership/Coparcenary in the Joint Family. Thus, a son by birth acquires an interest in the ancestral property of the joint family. Under the Dayabhaga law school, the son has no automatic ownership right by birth but acquires it on the demise of his father.
In the Mitakshara school, the father‘s power over the property is qualified by the equal rights by birth enjoyed by a son, a grandson and a great-grandson. An adult son can demand partition during his father‘s lifetime or his three immediate ancestors. He has a say in the disposition of the family property and can oppose any unauthorized disposition of ancestral or family property. This is not possible under Dayabhaga school as the father has overall and uncontrolled power over the family property till death.
2. Coparcenary/Co-ownership: –
Under the Mitakshara School of law all the members of the joint family enjoy coparcenary rights during the father‘s lifetime. Under Dayabhaga School when the father is alive the sons do not have coparcenary rights but acquire it on the death of the father. In the Mitakshara School of coparcener‘s share is not defined and cannot be disposed of. In the Dayabhaga the share of each Coparcener is defined and can be disposed of.
3. Partition: –
While both the Mitakshara and the Dayabhaga schools hold that the true test of partition is in the intention to separate the manifestation of this intention is different in each of the schools. In the case of Mitakshara School, the intention involves holding the property is defined definite shares while in the Dayabhaga School there has to be a physical separation of the property into specific portions and assigning of separate share to each coparcener.
In the Mitakshara system, none of the members of the coparceners can claim a definite physical share of the joint property. So, partition in this system involves in ascertaining and defining the share of the coparcener i.e. In the numerical division of the property. In the Dayabhaga system, each of the coparceners has a definite share in the joint family property even though the family is joint and undivided and the possession is common. So, partition in this system involves the physical separation of the joint property into the separate shares of the coparceners and assigning to each of the coparceners the specific portion of the property.
4. Rights of Women: –
In the Mitakshara system the wife cannot demand partition. She, however, has the right to a share in any partition effected between her husband and her sons. Under the Dayabhaga this right does not exist for the women because the sons cannot demand partition as the father is the absolute owner.
In both the systems, in any partition among the sons, the mother is entitled to a share equal to that of a son. Similarly, when a son dies before partition leaving the mother as his heir, the mother is entitled to a share of her deceased son as well as share in her own right when there is a partition between the remaining sons.
5. Widow‘s rights: –
When one of the brothers dies, his widow can succeed to his share under the Dayabhaga but under the Mitakshara her rights are excluded by the right of survivorship of the brothers. The widow can then have only a right to maintenance.
6. Sapinda: Heirship: –
The relationship of Sapinda arises according to Mitakshara by propinquity or community of blood. Under the Dayabhaga it arises utilizing Pinda offerings to deceased ancestors. The spiritual benefit is the criterion for heirship under the Dayabhaga while consanguinity (blood relationship) is the guiding principle under the Mitakshara.
7. Survivorship: –
Brothers who have inherited property from their father have a right of survivorship in the Mitakshara joint family. The Dayabhaga does not response any right of survivorship and the brothers hold in quasi- severalty with the full power of alienation.
CONCLUSION
The Hindu laws were made with the purpose of the welfare of people. Dayabhaga and Mitakshara both were made to fulfill everyone‘s needs but with the modernization of the world, these laws too have been through advancements and amendments through various acts. Thus the Mitakshara system is conservative. It provides good security in difficult times as a member can rely on the joint family. The Dayabhaga system is more liberal. Among the two the Dayabhaga is more likely to last in modern times with the growth of individualism, individual enterprise and economic compulsions.
HINDU MARRIAGE ACT,1955
PURPOSE/ OBJECT OF HINDU MARRIAGE ACT,1955
The Hindu Marriage Act, 1955 was intended to secure the rights of marriage for the bride and groom who are Hindu and are bound under the sacred bond of marriage under any ceremony. This act was floated after several cases were seen where both man and woman were petrified or humiliated under a fraud case in the name of marriage. This act is binding to any person who is Hindu, Jain, Sikh and Buddhists and is not a Muslim, Christian, Parsi or Jew and is governed by some other law. This law is binding to any person who is Hindu by Birth or Hindu by Religion. There is a complete definition of Hindu under Section 2 of Hindu Marriage Act, 1955.
WHO IS HINDU?
Hindu Law legislations like Hindu Marriage Act, Hindu Succession etc. shall apply to any person who is Hindu. Section 2 of Hindu Marriage Act, Section 2 of Hindu Succession Act and Section 3 of Hindu Minority and Guardianship Act, 1956 talk about the applicability of these Acts. The term 'Hindu' is a general term.
There is no mention of the term 'Hindu' in the ancient Sanskrit text or Dharmashastras. The word Hindu has been derived from the word 'Sindu' which means the river 'Indus' in the subcontinent. The subcontinent came to be known as 'Hindustan' and the people living there as 'Hindu'. The term ‗Hindus‘ denotes all those persons who profess Hindu religion either by birth from Hindu parents or by conversion to Hindu faith.
By referring to the Acts codified by Parliament in four acts i.e. the Hindu Succession Act 5511, the Hindu Marriage Act 5511, the Minority and Guardianship Act 5511, the Hindu Adoption and Maintenance Act 5511, the definition of the term 'Hindu' could be inferred as:
“A person who is a Hindu by religion in any of its form or development who is a Buddhist Jain or Sikh by religion. Hindu is a person who is domiciled in India, who is not a Muslim, Christian, Parsi or Jew by religion. A Person who is domiciled in territories to which these four acts extends and those people who are followers of Hindu Law."Thus, a person can be considered to be a Hindu in following ways:
1. As per Section 2(1)(a) of the HMA, any person who is a Hindu by religion in any of its form including Virashiva, Lingayat or a follower of Brahmo, Prarthana or Arya Samaj. The word ‗including‘ suggests that the list is not exhaustive.
2. Section 2(1) (b) of HMA lays down that any person who is a Buddhist, Jain or Sikh is also considered to be a Hindu.
3. A person will be considered to be a Hindu if:
- He is domiciled in the territories to which this Act extends.
- He/she must not be a Muslim, Christian, Parsi or Jew.
4. A person who follows Hindu Law can be:
- Legitimate child of Hindu parents
- An illegitimate child of Hindu parents
- Children of one Hindu parent
- Someone who has gone through conversion
If the above-mentioned conditions are proved, the court presumes the person to be a Hindu. But the Burdon of proof lies upon the opposite party who can rebut the claim to be Hindu. If the opposite party succeeds in doing so then the person claiming to be Hindu will not be considered to be a Hindu.
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.
In Sapna vs State of Kerala 1993
It was held by Kerala High Court that If only one parent is a Hindu, the person can be a Hindu if he or she has been raised as a Hindu.
Commissioner of Income tax v/s Sridharan -1976
A question also arose that whether a child from Hindu father & Christian mother shall be considered to be Hindu or not?
A positive answer was given and said that if either of the parent is Hindu and child born out of them is brought up under Hindu traditions then that child shall be considered as Hindu. Also in our society the religion of father applies over the son.
PERSONS WHO ARE NOT SUBJECT TO HINDU LAW:
- Person who has converted from Hindu Religion to the Mohammedan faith, Christianity.
- Non- Hindu child of one Hindu Parent.
- Persons belonging to Scheduled Tribes
Under Section 2(2) of HMA, the protection has been given to the schedule tribes from the application of Hindu Laws upon them. The main policy of the Constitution has been to preserve the rich cultural practice of the tribe and not to interfere with their practices unnecessarily. Such tribes are free to practice their own laws upon marriage, succession, adoption etc. However, if the Central Govt. finds it suitable that a particular tribe should be governed by Hindu Law, then a declaration has to be made in official gazette, for the application of such laws on these tribes
Abrahim v/s Abrahim, 1863
The Privy Council held that the Hindu Law applies not only to those who are Hindu by birth but also applies to those persons who have become Hindu by conversion.
Perumal V. Ponnuswamy
The court held that the mere claim of a person that he is Hindu is not acceptable. It will not convert him to Hindu. The person's bonafide intention in his conversion to the Hindu faith and the manner and conduct of his way life could be considered as evidence.
In Vijay Kumari V. K.Devibalan AIR 2003
Court held that in case of an illegitimate child Hindu law would apply if either both of the parents or at least the mother of the child is Hindu and such child has been brought up as Hindu religion.
Peerumal v. Poonuswami AIR 1971 SC 2352
The court held that a person may also become Hindu if after expressing an intention, expressly and impliedly he lives as a Hindu and the community or casts into the fold of which he is ushered in accepts him as a member of that caste or community.
Mohandas V. Devaswami Board, 1975
In this case it was held that a person can be Hindu by declaration. One Jesudas, a Catholic Christian by faith and famous singer used to give a devotional music in a Hindu temple. He has also filed a declaration that ―I am a follower of Hindu faith‖. On this declaration Kerela High Court held him a Hindu by conversion.
CONCLUSION
The term ―Hindu‖ is not very precise in its significance. Therefore, the modern Hindu law is a body of rules of personal law applicable to Hindus as well as several non-Hindu communities. In the modern Hindu law all those persons to whom Hindu law applies are called "Hindus".
as per section 2 of Hindu Marriage Act the Hindu law is applicable to all those persons who are –
Hindu by birth, Offshoots of Hinduism, Persons who are not Muslim, Christians, Parsi, or Jews by Religion, Converts or reconverts to Hindu, Harijans, Aboriginal Tribes and The Hindu law is not applicable to all those persons who are converted to Islam, Converted to Christians from Hindu, Illegitimate child of a Hindu Father and Christian mother and is also bought up as Christians.