HINDU LAW (Model answers)
Question 1) Who is a Hindu?
Answer) Hindu word is not defined anywhere, it is derived from the word Sindhu but in general terms “All the persons who profess Hindu religion either by birth or by conversion to the Hindu faith, are called Hindu”. The Supreme Court has also observed that the word Hindu is derived from the word Sindhu, otherwise known as Indus river.
Following are the people who fall in this category:
1. Hindu by Religion: Following two types of persons fall in this category:
i) Followers of Hindu Religion: Any person who follows Hindu religion either by practicing it or by professing it is a Hindu
ii) Converts and Reconverts to Hinduism: Under the codified Hindu law any person converted to Hinduism, Jainism, Buddhism or Sikhism is a Hindu. The Supreme Court in Perumal v. Poonuswami, (1971 S.C. 2352) observed that a person may be a Hindu by birth or by conversion. No formal ceremony of purification is necessary to effectuate conversion.
2. Hindu by Birth: Following persons are deemed to be Hindus by birth:i) When both the parents are Hindu: Children born of Hindu parents are Hindus. Such a child may be legitimate or illegitimate. It is also immaterial that such a child does or does not profess, practice or has faith in the religion of its parents.ii) When one Parent is Hindu: When one of the parents of a child is Hindu and he is brought up as a member of Hindu family, he is a Hindu. It is clear by the explanation (b) of Section 2(1) of Hindu Marriage Act, 1955 that child's religion is not necessarily that of the father
3. Persons who are not Muslims, Christians, Parsis or Jews: The codified Hindu law lays down that a person who is not a Muslim, Christian, Parsi or Jew is governed by Hindu law, unless it is proved that Hindu law is not applicable to such a person. Those persons who are atheists or who believe in all faiths or in conglomeration of faiths may fall under this class. Under the codified Hindu law such persons will be Hindus for the purpose of the application of Hindu law.
Question 2- What are the sources of Hindu law?
Answer- There are two types of sources of Hindu law, which are discussed as follows-
1. Ancient Sources:
a) Sruti
b) Smriti
c) Digests and Commentaries
d) Custom
2) Modern Sources:
a) Judicial Decisions
b) Legislation
c) Equity, Justice and Good Conscience
ANCIENT SOURCES-
1. Sruti: Sruti, literally, means that which was heard, this word has taken from the word 'Sru' i.e. to hear. Manu has defined Sruti as follows- "By Sruti or what was heard from above (from God) is meant the Veda". Four Vedas are –
(i) Rigveda (praise of forces of nature),
(ii) Yajurveda (Rituals etc.),
(iii) Samveda (Prayers),
(iv) Atharvaveda (Magic, spell and incarnation).
2. Smriti: They are utterances and precepts of the Almighty, which have been heard and remembered and handed down by the Rishis (sages) from generation to generation. The smritis are divided into Primary and Secondary Smritis contained in Dharma Sutra (Prose) and Dharmashastras (Poetry). Although Smrities deal with rules of morality and religion, they are more secular than the Sruties.
3. Commentaries and Digests: After the Smrities, the next step in the development of Hindu Law was the composition of a number of commentaries and Digests based upon the Smrities. The commentaries are to interpret the law as laid down in the Smrities. The writing of a particular Smriti is called commentary while the writing on different smritis is called Digests. There are a number of commentaries but the main area-
i) Daya Bhaga by Jimutavahana
ii) Mitakshara by Vijnaneshwara
4. Custom: When human beings came to live in groups, it was but natural that they should, for harmonious group life, conform to certain patterns of human behaviour. In course of time, a pattern of behaviour emerged and is called usage or custom.
Essentials of Customs:
a) It should be certain
b) Reasonable
c) It should not be immoral
d) Reasonable
e) Must not be opposed to public policy
f) It must not be forbidden by any express enactment of the legislature
MODERN SOURCES-
1. Judicial Decisions: During British regime in this country Hindu law was administered by British judges with the help of Hindu Pandits because they interpreted the Sanskrit texts for them to apply them to the dispute and to arrive at a decision.
2. Legislation: Legislation is the modern source of Hindu law and has a colossal importance, in the evolution and development of Hindu law. The Hindu law has been reformed and modified by the legislature through various enactments in this regard.
Before the independence important legislations passed were :-
a. The caste Disabilities Removal Act, 1850
b. The Hindu Widow's Remarriage Act, 1856.
c. Inheritance (Removal of Disabilities) Act, 1928.
d. The Indian Succession Act, 1925. e. The Child Marriage Restraint Act, 1928.
3. Equity, Justice and Good Conscience: In the absence of any specific law in the Smriti, or in the event of a conflict between the Smritis, the principles of justice, equity and good conscience would be applied.
Q3) What are the essentials of a valid Hindu marriage?
Answer) WHO IS A HINDU?: The term ‘Hindu’ denotes all those persons who profess the Hindu religion either by birth, from Hindu parents or by conversion to the Hindu religion.
The Hindu Marriage Act 1955, is applicable to all those persons who is a Hindu, Jain, Buddha, or Sikh by religion and those who convert and reconvert to Hinduism including (Buddhists, Jains, Sikhs).
ESSENTIALS OF VALID HINDU MARRIAGE : Section 5 of the Hindu Marriage Act, 1955 lists out the essential conditions for a valid Hindu Marriage.Monogamous Relationship: Under section 5(i) of the Hindu Marriage Act, the first essential condition of a valid Hindu marriage is that neither party should have a living spouse at the time of marriage. Section 5(i) may read with Section 11,17 of the Hindu Marriage Act, 1955 which makes a Hindu guilty of the offence of bigamy under Section 491 of Indian Penal Code and it is ultra vires to the constitution on the ground that it violates Article 14, 15 or 25(1) of Constitution of IndiaFree Consent: Section 5(ii) of the Act provides that at the time of marriage neither party shall be incapable of giving free valid consent on the basis of unsoundness of mind, mental disorder and insanity (unfit for marriage and procreation of children). Free consent is a necessary element of a Hindu Marriage. A Hindu Marriage takes in contravention of this condition is not per se void but voidable under Section 12 (1)(b) of the Act.
Age: Under section 5(iii) of the Act, at the time of marriage the male shall be minimum 21 years of age and female 18 years of age. Any violation of the required age of this clause is not void or even voidable but it is the breach of condition and is punishable with simple imprisonment which may extend to fifteen days, or with fine, or with both by Section 18(a) of the Act. {P. Venkataramana v. State (1977)}Prohibited relationship: Under section 5(iv) of the Act, neither parties shall fall under degrees of prohibited relationship except when such union is allowed by custom or usage. A marriage solemnized within the prohibited degrees of relationship would be void under Section 11 of the Act and is punishable for simple imprisonment which may extend upto one month, or with fine or with both by Section 18(b) of the Act. If a custom is prevailing it must be a valid custom under Section 3(a) of the Hindu Marriage Act. The marriage constituted within the degrees of prohibited relationship will only become legal and valid if there exists a valid custom.
Sapinda Relationship: Under section 3 (f)(ii) of the Act, two persons are said to be “sapindas” of each other if one is lineal ascenda nt of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them. Sapinda marriages are prohibited and is liable for punishment as per section 18(b), unless when such union are allowed by custom or usage. Thus according to this section marriages between persons of blood relationship are void.
Both the parties to the marriage should be Hindu: Section 5 of the Hindu Marriage Act of 1955 specifies the prerequisites for a lawful Hindu marriage, which provides that both parties must be Hindus. If one of the parties to the marriage is a Christian or a Muslim, the marriage will not be considered a genuine Hindu marriage under the Hindu Marriage Act of 1955. Therefore, under the Act of 1955, a lawful marriage cannot be solemnised if both parties are not Hindus. In Yamunabai Anant Rao Adhav v. Anant Rao Shivaram Adhav (1988), it was made clear that Section 5 of the Act only permits marriages to be performed between two Hindus
CONCLUSION: The above listed are the essential condition of a valid Hindu Marriage under Hindu Law. Hindu Marriage is not only a sacrament but a contract too. As soon as the marriage is completed it gives certain marital rights and duties to both husband and wife.
Q4) What are the bars to matrimonial reliefs?
Answer) “Nobody is allowed to take advantage of his own wrong”—J. ChandrachudIntroduction: The remedies mentioned in the Hindu Marriage Act, 1955 have certain bars which must be crossed in order to get matrimonial relief. These bars are based on the Doctrine of Equity. This doctrine states that “One who comes to equity must come with clean hands”. This means that the person seeking matrimonial relief must prove the fault of the other party and also cross the bars to matrimonial relief. The bars to matrimonial relief have been defined under Section 23 of the HMA.Before any relief is granted by the court to the petitioner, he/she must prove the fault of the respondent and make sure that there are no bars to such relief. If any relief is granted which is in contempt to clause (a) to(e) of Section 23(1) of Hindu Marriage Act, 1955 (HMA), then it’s destined to be quashed. Section 23(1) deals with the following bars:
Accessory
Connivance
Condonation
Collusion
DelayAny other legal grounds
Accessory: Section 23(1)(b) mentions the term “accessory”. This concept is mainly used in criminal cases. Accessory means participating in a criminal or immoral act. Hence, if the petitioner is in any small way involved or helping the respondent in an immoral or criminal act, matrimonial relief shall not be granted. The petitioner shall be an accomplice to the crime. This bar applies only to adultery under the Hindu Marriage Act.
Connivance: Connivance, like accessory, is involvement in an immoral or wrongful act. In accessory, the petitioner is guilty of helping the respondent in committing the crime whereas, in connivance, the petitioner encourages the wrongful act of th e respondent. Connivance is the anticipatory willing consent given by the petitioner to a wrongful act. In such a case, the petitioner will not be eligible for relief.Condonation: Condonation is the forgiveness of the crime committed by the offender. Hence while granting relief, the Court has to examine whether the act committed by the respondent in case of cruelty or adultery is not condoned/erased by the petitioner. It is assumed that once the act is condoned, the offender will not repeat it. The two main ingredients of condonation are forgiveness and reinstatement.Collusion: Section 23(1)(c) of the HMA, mentions the bar of collusion. Collusion is an absolute bar under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. Collusion is an agreement between the parties for obtaining matrimonial relief by deceiving or misrepresenting the court or producing false evidence. The only exception to this bar is divorce by mutual consent. The burden of proving to the court that there is no collusion on the part of the spouses rests with the petitioner. The HMA has abolished this bar in cases where marriages are null and void, but it is available under the Special Marriage Act.
Delay: Delays are never tolerated. It is quite natural to say that unnecessary delays are a bar to matrimonial relief. Likewise, the burden of proving that the delay was not intentional falls on the petitioner. This bar is based on the doctrine of Laches which states that in a civil dispute, a party may not be allowed to file a suit due to an unreasonable delay.
Other legal grounds: Section 23(1)(e) states that matrimonial relief shall not be granted if there is any other legal ground restricting matrimonial relief. This is a residuary bar.
CONCLUSION: Marriage is a very complex and delicate institution. The courts have to be very careful before granting any of the matrimonial reliefs. Section 23 provides bars in the grant of matrimonial remedies to the petitioners who try to take benefit of their wrongdoing, condoned, collusion with their spouse, and caused unnecessary delay in the filing of a petition. These bars work as a refinery by rejecting the fraud cases and helps in providing a speedy trial for the genuine matrimonial cases. They help in eliminating the devious or cases that are filed to take revenge on the spouse.