Hindu Law

THE ICFAI UNIVERSITY
ICFAI LAW SCHOOL
Rajawala Road, Dehradun
Family Law Assignment
Assignment on
“Hindu Law”
Submitted to- Submitted By-
Dr. Ashish Singhal Twinkle Rajpal
Faculty-in-charge 18FLICDDN02175
Ba.LLb(H)[2nd Year]
Evolution and Sources of 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
jus”ce 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
in the force of law and also a valid
Rajashasana
Concept of Dharma
according to
‘Dharma’
term but all
jus”ce what
righteous conduct,
custom having
Rajashasana
Concept of Dharma
according to
‘Dharma’
term but all
jus”ce what
righteous conduct,
custom having
Rajashasana
Concept of Dharma
according to
‘Dharma’
term but all
jus”ce what
righteous conduct,
custom having
Rajashasana
Concept of Dharma
according to
‘Dharma’
term but all
jus”ce what
righteous conduct,
custom having
Rajashasana
Concept of Dharma
according to
‘Dharma’
term but all
jus”ce what
righteous conduct,
custom having
Rajashasana
according to
‘Dharma’
term but all
jus”ce what
righteous conduct,
custom having
Rajashasana
according to
‘Dharma’
term but all
jus”ce what
righteous conduct,
custom having
Rajashasana
according to
‘Dharma’
term but all
jus”ce what
righteous conduct,
custom having
Rajashasana
according to
‘Dharma’
term but all
jus”ce what
righteous conduct,
custom having
Rajashasana
according to
‘Dharma’
term but all
jus”ce what
righteous conduct,
custom having
Rajashasana
according to
‘Dharma’
term but all
jus”ce what
righteous conduct,
custom having
Rajashasana
according to
‘Dharma’
term but all
jus”ce what
righteous conduct,
custom having
Rajashasana
according to
‘Dharma’
term but all
jus”ce what
righteous conduct,
custom having
Rajashasana
Concept Of Dharma
In Hinduism, dharma signifies ehaviours that are considered to be in accord with Ṛta, the order that
makes life and universe possible, and includes duties, rights, laws, conduct, virtues and “right way of
living”. In Buddhism, dharma means “cosmic law and order”, and is also applied to the teachings of
Buddha. In Buddhist philosophy, dhamma/dharma is also the term for “phenomena”. Dharma in
Jainism refers to the teachings of tirthankara (Jina) and the body of doctrine pertaining to the
purification and moral transformation of human beings. For Sikhs, the word dharm means the path of
righteousness and proper religious practice.
The word dharma was already in use in the historical Vedic religion, and its meaning and conceptual
scope has evolved over several millennia. The ancient Tamil moral text of Tirukkural is solely based
on aṟam, the Tamil term for dharma. The antonym of dharma is adharma.
Who are Hindus?
A. Definition
The Hindu Marriage Act, 1955 (Act) is applicable to following types of persons:
(i) By religion and birth: Those who are Hindus, Sikhs, Jains or Buddhist by religion or by
birth;
(ii) By not belonging to a non-Hindu religion: Those who are not Muslims, Christians, Parsis
or Jews by religion or by birth;
(iii) Domicile in territory: To any other person domiciled in the territories to which this Act
extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that
any such person would not have been governed by the Hindu law or by any custom or
usage as part of that law in respect of any of the matters dealt with herein if this Act had
not been passed.
Exception
Section 2(2) of the Act says that this definition does not apply to Schedule Tribes even if Hindus
unless Central Government by law defines them so by issuing a notification in official gazette.
B. Hindu by Birth
The person whether legitimate or illegitimate child is classified as Hindu by birth irrespective
of his religion if:
(i) If one parent is Hindu
(ii) If both the parent is Hindu
Sources of Hindu Law
The sources of Hindu law can be classified under the following two heads:
I. Ancient Sources Under this would come the following:
(i)Shruti
(ii)Smriti
(iii)Digests and Commentaries and
(iv)Custom.
II. Modern Sources
Under this head would come:
(i) Justice, equity and good conscience

(ii) Precedent, and
(iii) Legislation.
Ancient Sources
(i) Shruti-
It literally means that which has been heard. The word is derived from the root “shru”
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.
The synonym of shruti is veda. It is derived from the root “vid” meaning ‘to know’. The
term Veda is based on the tradition that they are the repository of all knowledge. There
are four Vedas namely, Rig Veda (containing hymns in Sanskrit to be recited by the chief
priest), Yajurva Veda (containing formulas to be recited by the officiating priest), Sama
Veda (containing verses to be chanted by seers) and Atharva Veda (containing a
collection of spells and incantations, stories, predictions, apotropaic charms and some
speculative hymns)
Each Veda has three parts viz. Sanhita (which consists mainly of the hymns), Brahmin
(tells us our duties and means of performing them) and Upanishad (containing the essence
of these duties). The shrutis include the Vedas along with their components.
iv. Smritis-
The word Smriti is derived from the root “smri” meaning ‘to remember’. Traditionally,
Smritis contain those portions of the Shrutis which the sages forgot in their original form
and the idea whereby they wrote in their own language with the help of their memory.
Thus, the basis of the Smritis is Shrutis but they are human works.
There are two kinds of Smritis viz. Dharmasutras and Dharmashastras. Their subject
matter is almost the same. The difference is that the Dharmasutras are written in prose, in
short maxims (Sutras) and the Dharmashastras are composed in poetry (Shlokas).
However, occasionally, we find Shlokas in Dharmasutras and Sutras in the
Dharmashastras. In a narrow sense, the word Smriti is used to denote the poetical
Dharmashastras.
The number of Smriti writers is almost impossible to determine but some of the noted
Smriti writers enumerated by Yajnavalkya (sage from Mithila and a major figure in the
Upanishads) are Manu, Atri, Vishnu, Harita, Yajnavalkya, Yama, Katyayana, Brihaspati,
Parashar, Vyas, Shankh, Daksha, Gautama, Shatatapa, Vasishtha, etc.
The rules laid down in Smritis can be divided into three categories viz. Achar (relating to
morality), Vyavahar (signifying procedural and substantive rules which the King or the
State applied for settling disputes in the adjudication of justice) and Prayaschit (signifying
the penal provision for commission of a wrong).
(iii) Digests and Commentaries-

After Shrutis came the era of commentators and digests. Commentaries (Tika or Bhashya)
and Digests (Nibandhs) covered a period of more than thousand years from 7 th century to
1800 A.D. In the first part of the period most of the commentaries were written on the
Smritis but in the later period the works were in the nature of digests containing a
synthesis of the various Smritis and explaining and reconciling the various contradictions.
The evolution of the different schools of Hindu law has been possible on account of the
different commentaries that were written by various authorities. The original source of
Hindu law was the same for all Hindus. But schools of Hindu law arose as the people
chose to adhere to one or the other school for different reasons. The Dayabhaga and
Mitakshara are the two major schools of Hindu law. The Dayabhaga school of law is
based on the commentaries of Jimutvahana (author of Dayabhaga which is the digest of
all Codes) and the Mitakshara is based on the commentaries written by Vijnaneswar on
the Code of Yajnavalkya.
(iv) Custom-
Custom is regarded as the third source of Hindu law. From the earliest period custom
(‘achara’) is regarded as the highest ‘dharma’. As defined by the Judicial Committee
custom signifies a rule which in a particular family or in a particular class or district has
from long usage obtained the force of law.
Custom is a principle source and its position is next to the Shrutis and Smritis but usage
of custom prevails over the Smritis. It is superior to written law. There are certain
characteristics which need to be fulfilled for declaring custom to be a valid one. They
are:-
(i) The custom must be ancient. The particular usage must have been practised for a long
time and accepted by common consent as a governing rule of a particular society.
(ii) The custom must be certain and should be free from any sort of ambiguity. It must
also be free from technicalities.
(iii)The custom must be reasonable and not against any existing law. It must not be
immoral or against any public policy and
(iv)The custom must have been continuously and uniformly followed for a long time.
Indian Courts recognize three types of customs viz: (a) Local custom – these are customs
recognised by Courts to have been prevalent in a particular region or locality. (b) Class
custom – these are customs which are acted upon by a particular class. Eg. There is a
custom among a class of Vaishyas to the effect that desertion or abandonment of the wife
by the husband abrogates the marriage and the wife is free to marry again during the life-
time of the husband. (c) Family custom – these are customs which are binding upon the
members of a family. Eg. There is a custom in families of ancient India that the eldest
male member of the family shall inherit the estates.
II. Modern Sources

(i) Justice, equity and good conscience-
Occasionally it might happen that a dispute comes before a Court which cannot be settled
by the application of any existing rule in any of the sources available. Such a situation
may be rare but it is possible because not every kind of fact situation which arises can
have a corresponding law governing it.
The Courts cannot refuse to the settle the dispute in the absence of law and they are under
an obligation to decide such a case also. For determining such cases, the Courts rely upon
the basic values, norms and standards of fairplay and propriety.
In terminology, this is known as principles of justice, equity and good conscience. They
may also be termed as Natural law. This principle in our country has enjoyed the status of
a source of law since the 18th century when the British administration made it clear that in
the absence of a rule, the above principle shall be applied.
(ii) Legislations-
Legislations are Acts of Parliament which have been playing a profound role in the
formation of Hindu law. After India achieved independence, some important aspects of
Hindu Law have been codified. Few examples of important Statutes are The Hindu
Marriage Act, 1955, The Hindu Adoptions and Maintenance Act, 1956, The Hindu
Succession Act, 1956, The Hindu Minority and Guardianship Act, 1956, etc.
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.
(iii) Precedents-
After the establishment of British rule, the hierarchy of Courts was established. The
doctrine of precedent based on the principle of treating like cases alike was established.
Today, the decisions of Privy Council are binding on all the lower Courts in India except
where they have been modified or altered by the Supreme Court whose decisions are
binding on all the Courts except for itself.
Nature and Scope of Hindu Law
Hindu law is not a law as understood in modern times. A law in the present sense would mean an act
framed by the legislature of a State. Hindu law has not been made by legislature but it is the law made
by the Divine Being and which has been re-built in the Vedas.
It is the Dharma, i.e. the duties and rules of conduct- moral, religious, and political, enjoined by the
Almighty on the Hindu community. Thus, it covers all the laws which are kept separate under the
modern system of law.
Thus, Hindu law as understood in the ancient times was not the command of the political sovereign of
community. Rather, it was the command of the Supreme Being applicable to both- the King and his
subjects, the ruler and the ruled. The King and his subjects were equally subjected to the law. In order
to bring certainty to them, the laws were codified by the writers of Dhramashastra. Thus, the nature of
the Hindu Law is essentially different from the laws of the land.
According to the Hindu Law, those violate the Dharma shall be destroyed and those who follow it
shall be protected. This is applicable both to the King and his subject. Later on, this law was applied
to the Hindus by the authority of the following:
iv. Acts of the Parliament
ii. Imperial Legislation

iii. Provincial Legislation
iv. Principles of Justice, Equity and Good Conscience.
The concept of Hindu law is deeply rooted in the Hindu philosophy and Hindu religion. The ancient
Hindu social structure and its continuance in modern times is, to a great extent, outcome of the Hindu
philosophy and religion.
The ultimate aim of life, according to Hindu law is to achieve salvation or Moksha from the physical
world. Human being is mortal but the soul is immortal. When a person dies, the soul is in a free state
and it acquires a new form of re-birth. Thus the change of birth and death continue till the soul
attains Moksha from this world.
According to the Dharmashastra, there are four goals of human life- Artha, Dharma,

Kama and Moksha. Moksha or salvation is the ultimate goal. As a matter of fact, Artha and Kama are
concerned with this world, whereas, Dharma and Moksha are concerned with the next world. A life in
accordance to Dharma leads to happiness and pleasure in this life also.
Hindu social structure is the outcome of Hindu philosophy. According to Hindu philosophy, the
attainment of salvation is the ultimate goal of life and can be achieved by performing good deeds.A
person suffers pain as well as pleasure in his life according to the good or bad deeds that he may have
done. The entire human life is controlled by his past deeds.
The Hindu social structure may be referred alongside the concept of Ashrama- Dharma. According to
Shastric concept of human life, it has been considered that the average life of a human being is a
hundred years. It is to be divided into four stages of twenty five years each. The division is related to
the division of the four Ashramas:
i.Brahmacharya
ii. Grihastha
iii. Vanaprastha
iv. Sanyasa.
An individual could get salvation from this physical world by performing the prescribed duties under
these four Ashramas. Though the Dharma dominated all the four stages of Ashramas, yet the
attainment of the other three objectives are not less essential than Dharma and the human beings
should conduct their lives in accordance with Dharma.
Due to the emergence of various
commentaries on SMIRITI and
SRUTI,
Schools of Hindu Law
The term “Dayabhaga” is derived from a similarly named text written by Jimutavahana. The term-,
“Mitakshara” is derived from the name of a commentary written by Vijnaneswara, on the Yajnavalkya
Smriti. The Dayabhaga and The Mitakshara are the two schools of lawthat govern the law of
succession of the Hindu Undivided Family under Indian Law. The Dayabhaga School of law is
observed in Bengal and Assam. In all other parts of India the Mitakshara School of law is observed.
The Mitakshara School of law is subdivided into the Benares, the Mithila, the Maharashtra and the
Dravida schools.
The differences between the Dayabhaga and the Mitakshara schools of law may be categorized under
the following:-
I] 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 grand –son. 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 the Dayabhaga school as the father has overall and uncontrolled power over the family
property till death.
2] Coparcenary/Co-ownership:-Under the Mitakshara law school 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 the coparcener’s share is not defined and cannot be disposed. In the Dayabhaga the
share of each Coparcener is defined and can be disposed.
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 the Mitakshara School the intention involves holding the property in 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
coparcener 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 Woman: – In the Mitakshara system the wife cannot demand partition. She however has
the right to a share in any partition affected 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.
Conclusion: – The Mitakshara system is Conservative. It provides good security in times of

difficulties as a member can rely on the joint family. However sometimes a member can become a
parasite. 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.
Marriage Under Hindu Law
According to Hinduism, marriage is a sacred relationship. ] In some Hindu systems of marriage, there
is no role for the state as marriage remained a private affair within the social realm. Within this
traditional framework reference, marriage is undoubtedly the most important transitional point in a
Hindu’s life and the most important of all the Hindu ‘’sanskaras’’ (life-cycle rituals). The Congress
Government diluted the Hindu Marriage in 1955 by enactment of HMA and then in 1983 by
introduction of 498A. Special Marriage Act in 2000. Therefore there was fierce religious opposition
to enacting such laws for marriage, succession and adoption. The greatest opposition was to the
provision of divorce, something which is anathema to the Hindu religion. Also resisted was the
principle of equal inheritance by sons and daughters regardless of whether the daughter was married
or unwed. This was contrary to the Hindu view of family, where married daughters were regarded as
belonging to the family of their husband, not to the family of their father.
Some have argued that Hindu marriage cannot be subjected to legislative
intervention. Derrett predicted in his later writings that despite some evidence of modernization, the
dominant view in Hindu society for the foreseeable future would remain that marriage is a form of
social obligation.
Conditions
Section 5 of Hindu Marriage Act, 1955 states:-
"Section 5. A marriage may be solemnized between any two Hindus, if the following conditions
are fulfilled, namely-
1. neither party has a spouse living at the time of the marriage
2. at the time of the marriage, neither party-
a. is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
b. though capable of giving a valid consent, has been suffering from mental disorder of
such a kind or to such an extent as to be unfit for marriage and the procreation of
children;
3. the bridegroom has completed the age of twenty-one years and the bride the age of eighteen
years at the time of the marriage;
4. the parties are not within the degrees of prohibited relationship unless the custom or usage
governing each of them permits of a marriage between the two;
5. the parties are not sapindas of each other, unless the custom or usage governing each of them
permits of a marriage between the two."
Marriage can be solemnized between two Hindus if neither party has a living spouse at the time of
marriage;
The conditions also stipulate that at the time of the marriage, neither party is incapable of giving valid
consent or suffering from a mental illness that inhibits their fitness for marriage or procreation of
children or suffering from recurrent episodes of insanity or epilepsy. In the original Act, the age of
valid marriage was fixed at 18 for the boys and 15 for the girls, however this age requirement was
later raised to 22 and 18 respectively for the boys and the girls through the Child Marriage Restraint
(Amendment) Act 1978. Marriage of a female less than 18 years of age or a male of less than 21 years
of age is voidable but not void: The marriage will become valid if no steps are taken by the minor
spouse to seek a declaration that the marriage is void.
Finally, the Act specifically disallows marriages between prohibited degrees of relationships.
According to Hinduism there are eight different types of marriages. Not all have
religious sanction.
The eight types are:
1. Brahma marriage - The Brahma marriage is the marriage of one's daughter, after decking
her with costly garments and with presents of jewels, to a man of good conduct learned in the
Vedas, and invited by oneself. A Brahma marriage is where a boy is able to get married once
he has completed his student hood, or Brahmacharya. Brahma marriage has the most supreme
position of the eight types of Hindu matrimony. When the parents of the boy seek for a
female, they would consider her family background, but the girl’s father would make sure that
the boy that wishes to wed his daughter had the knowledge of Vedas. It is these things that
make the basis for Brahma marriage, not a system of dowry.
2. Daiva marriage - The type of marriage that is considered inferior because it is degrading to
womanhood. This is where the woman’s family will wait for a specific time to get her wed. If
she doesn’t get a suitable groom, then she would be married off to places where family
choose by matchmaking through priest who duly officiates at a religious ceremony, during the
course of its performance. This used to be the practice followed by many Royals in ancient
times to forge diplomatic ties with allies and enemies alike.
3. Arsha marriage - An Arsha marriage is where the girl is given in marriage to a sage. The
bride used to be given in exchange for some cows. Agasthya married Lopamudra accordingly.
Kings often could not refuse the sages who had such power and standing in society and hence
the numerous stories in Mahabharata that portray this practice.
4. Prajapatya marriage - Prajapatya is when a girl's father gives her in marriage to the
bridegroom, treating him with respect, and addresses them: 'May both of you perform
together your duties'. Unlike in Brahma marriage, Prajapatya matrimony is where the bride’s
father goes in search of a groom, although this isn’t considered as good as the grooms parents
searching for the perfect bride. Also, unlike Arsha marriage, monetary transactions are not a
part of the Prajapatya marriage.
5. Gandharva marriage - The voluntary union of a maiden and her lover on own is called
Gandharva marriage. When it comes to ‘love’ marriage, it is Gandharva marriage that is the
most similar. This is where a groom and his bride could wed without their parents knowledge
or sanction. This is how Dushyanta married Shakuntala. Note that this is not same as Dating.
Here the bride and the groom exchange vows in the presence of some person, creature, tree,
plant or deity before any further action.
6. Asura marriage - Asura marriage is when the bridegroom receives a maiden, after having
given of his own free will as much wealth as he can afford, to the bride and her kinsmen. It is
Asura marriage that sets itself apart from the other types of marriage. This is a matrimony
where the groom may not often be compatible with the bride and may even possess some
abnormality but either greed or compulsion on the part of the bride’s father coupled with the
groom's desire and wealth may render it. At all times this type of marriage was considered
lowly. In modern times this is unacceptable because it is much like buying a product off the
shelf and against common Indian law.
7. Rakshasa marriage - Rakshasa marriage is the marriage of a maiden involving her forcible
abduction from her home after her kinsmen have been slain or wounded much like its practice
in Kazakh and Uzbek cultures where it is still practised as a ritual. The groom will force
battles with the bride’s family, overcome them and carry the bride away to convince her to
marry him. Because of its use of force this marriage is essentially rape in modern parlance,
and it was never considered right - hence the pejorative name rakshasa attached to it. This is
condemned in the Manusmriti as a base and sinful act. In modern times it is a crime. Arjuna's
marriage to Subhadra was made to look like this but in reality it was a Gandharva Marriage
because both of them were in love a priori and they had the consent of Subhadra's brother Sri
Krishna who actually suggested this subterfuge to preempt Balarama from dissent.
8. Paishacha marriage - When a man by stealth seduces a girl who is sleeping, intoxicated, or
mentally challenged, it is called Paishacha marriage. This is condemned in the Manusmriti as
a base and sinful act. In modern times this is called Date Rape and is a crime in most civilized
lands.
Guardianship Under Hindu Law
The Dharmashastras did not deal with the law of guardianship. During the British regime the law of
guardianship was developed by the courts. It came to be established that the father is the natural
guardian of the children and after his death, mother is the natural guardian of the children and none
else can be the natural guardian of minor children. Testamentary guardians were also introduced in
Hindu law: It was also accepted that the supreme guardianship of the minor children vested in the
State as parens patrie and was exercised by the courts. The Hindu law of guardianship of minor
children has been codified and reformed by the Hindu Minority and Guardianship Act, 1956. The
subject may be discussed under the following heads:
(i) Guardianship of person of minors,
(ii) Guardianship of the property of minors, and
(iii) De facto guardians, and
(iv) Guardians by affinity.
Guardianship of the person
Minor Children
Under the Hindu Minority and Guardianship Act, 1956, S. 4(b), minor means a person who has not
completed the age of eighteen years. A minor is considered to be a person who is physically and
intellectually imperfect and immature and hence needs someone's protection. In the modern law of
most countries the childhood is accorded protection in multifarious ways. Guardian is "a person
having the care of the person of the minor or of his property or both person and property." It may be
emphasized that in the modern law guardians exist essentially for the protection and care of the child
and to look after its welfare. This is expressed by saying that welfare of the child is paramount
consideration. Welfare includes both physical and moral well-being. Guardians may be of the
following types: 1. Natural guardians, 2. Testamentary guardians, and 3. Guardians appointed or
declared by the court. There are two other types of guardians, existing under Hindu law, de facto
guardians, and guardians by affinity.
Natural Guardians
In Hindu law only three persons are recognized as natural guardians: father, mother and husband,
Father: “Father is the natural guardian of his minor legitimate children, sons and daughters." Section
19 of the Guardians and Wards Act, 1890, lays down that a father cannot be deprived of the natural
guardianship of his minor children unless he has been found unfit. Me effect of Lh1s provision has
been considerably whittled down by judicial decisions and by Section 13 of the Hindu Minority and
Guardianship Act which lays down that welfare of the minor is of paramount consideration and
father's right of guardianship is 5;ubordinate to the welfare of the child. The Act does not recognize
the principle of joint guardians. The position of adopted children is at par with natural-born children.
The mother is the natural guardian of the minor illegitimate children even if the father is alive.
However, she is the natural guardian of her minor legitimate children only if the father is dead or
otherwise is incapable of acting as guardian. Proviso to clause (a) of Section 6, Hindu Minority and
Guardianship Act lays down that the custody of a minor who has not completed the age of five years
shall ordinarily be with the mother. Thus, mother is entitled to the custody of the child below five
years, unless the welfare of the minor requires otherwise.
In Gita Hariharan v. Reserve Bank of India and Vandana Shiva v. Jayanta Bandhopadhaya, the

Supreme Court has held that under certain circumstances, even when the father is alive mother can act
as a natural guardian. The term 'after' used in Section 6(a) has been interpreted as 'in absence of'
instead 'after the life-time'. –
Rights of guardian of person. -The natural guardian has the following rights in respect of minor
children:
(a) Right to custody, .
(b) Right to determine the religion of children,
(c) Right to education,
(d) Right to control movement, and
(e) Right to reasonable chastisement
These rights are conferred on the guardians in the interest of the minor children and therefore of each-
of these rights is subject to the welfare of the minor children. The natural guardians have also the
obligation to maintain their minor children.
Testamentary Guardians
When, during the British period, testamentary powers were conferred on Hindus, the testamentary
guardians also came into existence. It was father's prerogative to appoint testamentary guardians. By
appointing a testamentary guardian the father could exclude the mother from her natural guardianship
of the children after his death. Under the Hindu Minority and Guardianship Act, 1956, testamentary
power of appointing a guardian has now been conferred on both parents.' The father may appoint a
testamentary guardian but if mother survives him, his testamentary appointment will be ineffective
and the mother will be the natural guardian. If mother appoints testamentary guardian, her appointee
will become the testamentary guardian and father's appointment will continue to be ineffective. If
mother does not appoint, father's appointee will become the guardian. It seems that a Hindu father
cannot appoint a guardian. of his minor illegitimate children even when he is entitled to act as their
natural. guardian, as S. 9(1) confers testamentary power on him in respect of legitimate children. In
respect of illegitimate children, Section 9(4) confers such power on the mother alone.
Under Section 9, Hindu Minority and Guardianship Act, testamentary guardian can be appointed only
by a will. The guardian of a minor girl will cease to be the guardian of her person on her marriage,
and the guardianship cannot revive even if she becomes a widow while a minor. It is necessary for the
testamentary guardian to accept 'the guardianship. Acceptance may be express or implied. A
testamentary guardian may refuse to accept the appointment or may disclaim it, but once he accepts,
he cannot refuse to act or resign except with the permission of the court.
Guardians Appointed by the Court
The courts are empowered to appoint guardians under the Guardians and Wards Act, 1890. The High
Court’s also have inherent jurisdiction to appoint guardians but this power is exercised sparingly. The
Hindu Minority and Guardianship Act is supplementary to and not in derogation to Guardians and
Wards Act. Under the Guardians and Wards Act, 1890, the jurisdiction is conferred on the District
Court: The District Court may appoint or declare any person as the guardian whenever it considers it
necessary in the welfare of the child.' In appointing ,,a" guardian, the court takes into consideration
various factors, including the age, sex, wishes of the parents and the personal law of the child. The
welfare of the children is of paramount consideration.
The District Court has the power to appoint or declare a guardian in respect of the person as well as
separate property of the minor. The chartered High Courts have inherent jurisdiction to appoint
guardians of the- person as well as the property of minor children. This power extends to the
undivided interest of a coparcener.
The guardian appointed by the court is known as certificated guardian. Powers of Certificated
guardians. Powers of certificated guardians are controlled by the Guardians and Wards Act, 1890.
There are a very few acts which he can perform without the prior permission of the court. In the
ultimate analysis his powers are co-extensive with the powers of the sovereign and he may do all
those things (though with the permission of the court) which the sovereign has power to do. A
certificated guardian from the date of his appointment is under the supervision, guidance and control
of the court.
Guardianship by affinity
In pre-1956 Hindu law there existed a guardian called guardian by affinity. The guardian by affinity is
the guardian of a minor widow. Mayne said that "the husband's relation, if there exists any, within the
degree of sapinda, are the guardians of a minor widow in preference to her father and his relations."'
The judicial. pronouncements have also been to the same effect. The guardianship by affinity was
taken to its logical end by the High Court in Paras Ram v. State In this case the father-in-law of a
minor widow forcibly took away the widow from her mother's house and married her for money to an
unsuitable person against her wishes. The question before the court was whether the father-in-law was
guilty of removing the girl forcibly. The Allahabad High Court held that he was not, since he was the
lawful guardian of the widow.
A question has come before our courts; whether the nearest sapinda of the husband automatically
becomes a guardian of the minor widow on the death of her husband or whether he is merely
preferentially entitled to guardianship and therefore he cannot act as guardian unless he is appointed
as such? Paras Ram seems to subscribe to the former view, and the Madras and the Nagpur high
Courts to the latter view. Under Section 13, Hindu Minority and Guardianship Act, in the appointment
of 'any person as guardian, the welfare of the child is paramount consideration. The fact that under
Hindu law father-in-law has preferential right to be appointed as guardian is only a matter of
secondary consideration.
In our submission, it would be a better law if the guardianship of the minor wife, both of her person
and property, continues to vest in the parents. We do not have much of textual guidance or case law
on the powers of the guardians by affinity. Probably his powers may be taken to be at par with those
of the natural guardian.
De Facto Guardian
A de facto guardian is a person who takes continuous interest in the welfare of the minor's person or
in the management and administration of his property without any authority of law. Hindu
jurisprudence has all along recognized the principle that if liability is incurred by one on behalf of
another in a case where it is justified, then the person, on whose behalf the liability is incurred or, at
least, his property, is liable, notwithstanding the fact that no authorization was made for incurring the
liability.'
The term 'de facto guardian' as such is not mentioned in any of the texts, but his existence has never
been denied in Hindu law. In Sriramulu, Kanta. said that Hindu law tried to find a solution out of two
difficult situations : one, when a Hindu child has no legal guardian, there would be no one who would
handle and manage his estate in law and thus without a guardian the child would not receive any
income for his property and secondly, a person having no title could not be permitted to intermeddle
with the child's estate so as to cause loss to him. The Hindu law found a solution to this problem by
according legal status to de facto guardians.
A mere intermeddler is not a de facto guardian. An isolated or fugitive act of a person in regard to
child's property does not make him a de facto guardian. To make a person a de facto guardian some
continuous course of conduct is necessary on his part. In other words, a de facto guardian is a person
who is not a legal guardian, who has no authority in law to act as such but nonetheless he himself has
assumed, the management of the property of the child as though he were a guardian. De facto
guardianship is a concept where past acts result in present status. The term literally means 'from that
which has been done.'
The de facto guardian was recognised in Hindu law as early as 1856. The Privy Council in Hanuman
Pd. said that 'under Hindu law, the right of a bona fide encumbrance, who has taken a de facto
guardian a charge of land, created honestly, for the purpose of saving the estate, or for the benefit of
the estate, is not affected by the want of union of the de facto with the de jure title.
Dissolution Of Marriage
In Ancient times, the concept of divorce was not known to anyone. They considered marriage as a
sacred concept. According to Manu, the husband and wife cannot be separated from each other, their
martial tie cannot be broken. Later the concept of divorce came in the picture and established as a
custom to put the marriage to an end.
According to the Arthashastra, marriage can end if dissolved by mutual consent and should be
unapproved marriage. But Manu does not believe in the concept of the dissolution. According to
Manu the only way to end the marriage is the death of one of the spouses.
The provision related to the concept of divorce was introduced by the Hindu Marriage Act, 1955. The
Hindu Marriage Act defines divorce as a dissolution of the marriage. For the interest of the society,
the marriage or the marital relationship needs to be surrounded by every safeguard for the cause
specified by law. Divorce is permitted only for a grave reason otherwise given other alternative.
Different Theories of Divorce
Fault Theory
Under this theory, marriage can be ended when one party to the marriage is responsible or liable for
the offence under matrimonial offences done against another spouse. Only the innocent spouse can
seek this remedy. The only drawback of this theory is when both the spouse are at fault, then no one
can seek these remedy of divorce.
Mutual Consent
Under this theory, the marriage can be dissolved by mutual consent. If both the spouse mutually gives
their consents to end the marriage, they can take the divorce. But many philosophers criticise this
theory as this concept is immoral and leads to hasty divorce.
Irretrievable Breakdown
According to this theory, the dissolution of marriage happens due to failure of the matrimonial
relationship. The divorce can be taken by the spouse as a last resort i.e. when both of them are not
able to live together again.
Divorce under Hindu Marriage Act, 1955
In the Hindu Marriage Act, there are some provisions given regarding a valid divorce, i.e. when the
spouse can get divorce or appeal for dissolution of marriage in the court of law. For the interest of the
society, the marriage or the marital relationship needs to be surrounded by every safeguard for the
cause specified by law. Divorce is permitted only for a grave reason otherwise given other alternative.
The Hindu Marriage Act is based on the fault theory in which any one of the aggrieved spouses
(Section 13(1)) can approach the court of law and seek the remedy of divorce. Section 13(2) provides
the grounds on which only the wife can approach the court of law and seek the remedy of divorce
Grounds of Divorce as per The Hindu Marriage Act
Adultery
The concept of Adultery may not be considered as an offence in many countries. But as per the Hindu
Marriage Act, in the matrimonial offence, the adultery is considered as one of the most important
ground for seeking divorce. Adultery means the consensual and voluntary intercourse between a
married person with another person, married or unmarried, of the opposite sex. Even the intercourse
between the husband and his second wife i.e. if their marriage is considered under bigamy, the person
is liable for the Adultery.
The concept of Adultery was inserted under the Hindu Marriage Act by the Marriage Laws
Amendment Act, 1976.
In Swapna Ghose v. Sadanand Ghose
In this case, the wife found her husband with other girl lying on the same bed and the neighbour also
confirmed that the husband has committed an offence. Here the wife gets the divorce.
In Sachindranath Chatterjee vs Sm. Nilima Chatterjee
In this case, the petitioner and the defendant were married. After marriage, the husband leaves the
wife in his home town so that she can complete her studies and go to another city for work. He visited
twice or thrice a month to meet her. Later he found that his wife commits the adultery i.e. to involve
in sexual intercourse with his own nephew, watchman etc. The plaintiff approaches the court to
demand divorce on the ground of adultery and his petition was accepted and the marriage gets
dissolved.
Essentials of Adultery
1. One of the spouses involved in the intercourse with another person, married or unmarried,
of the opposite sex.
2. Intercourse should be voluntary and consensual.
3. At the time of the act, the marriage was subsisting.
4. There must be sufficient circumstantial evidence to prove the liability of another spouse.
Cruelty
The concept of cruelty includes mental as well as physical cruelty. The physical cruelty means when
one spouse beats or causes any bodily injury to the other spouse. But the concept of mental cruelty
was added as the spouse can also be mentally tortured by the other spouse. Mental Cruelty is lack of
kindness which adversely affects the health of the person. Well it is easy to determine the nature of
physical cruelty but difficult to say about mental cruelty
1. What is considered as Mental Cruelty against Husband by wife:

2. Humiliating the husband in front of his family and friends.
3. Undertaking the termination of pregnancy without husband consent.
4. Making false allegation against him.
5. Denial for Martial Physical Relationship without a valid reason.
6. Wife having affair.
7. Wife living an immoral life.
8. The constant demand for money.
9. Aggressive and uncontrollable behaviour of Wife.
10. Ill-treatment to the husband parents and family.
In Balram Prajapati vs Susheela Bai
In this case, the petitioner filed the divorce petition against his wife on the ground of mental cruelty.
He proved that his wife that behaviour with him and his parents was Aggressive and uncontrollable
and many times she filed the false complaint against her husband. The court accepts the petition and
grants the divorce on the ground of cruelty.
What considered as Mental Cruelty against wife by Husband
1. False accusation of adultery.

2. The demand for dowry.
3. Impotency of Husband.
4. Force to abort the child.
5. The problem of drunkenness of husband.
6. Husband having affairs.
7. The husband lives an immoral life.
8. Aggressive and uncontrollable behaviour of the husband.
Humiliating the wife in front of family and friends
Desertion
Desertion means the permanent abandonment of one spouse by the other spouse without any
reasonable justification and without his consent. In General, the rejection of the obligations of
marriage by one party.
Essentials
1. Permanent abandonment of the other spouse.

2. Rejection of the obligation of marriage.
3. Without any reasonable justification.
4. No consent of another spouse.
In Bipin Chander Jaisinghbhai Shah vs Prabhawati
In this case, the respondent leaves the house with the intention to abandon his wife. Later the wife
approaches the court, but the defendant proved that even though he left the house with the intention to
desert, but he tried to come back and he was prevented from doing so by the petitioner. Here, the
defendant cannot be held liable for desertion.
Conversion
If one of the spouses converts his religion to any other religion without the consent of the other
spouse, then the other spouse can approach the court and seek the remedy of divorce.
Illustration
A, a Hindu has a wife B and two children. One day A went to church and converted to Christianity
without the consent of B, here B can approach the court and seek for divorce on the ground of
conversion.
In Suresh Babu vs Leela
In this case, the husband converts himself into Muslim and marries another woman. Here the wife
Leela filed a case and demanded the divorce on the ground of conversion without her consent and
cruelty.
Insanity
Insanity means when the person is of unsound mind. Insanity as a ground of divorce has the following
two requirements-
1. The respondent has been incurably of unsound mind.

2. The respondent has been suffering continuously or intermittently from mental disorder of
such a kind and to such an extent that the petitioner cannot reasonably be expected to live
with the respondent.
In Vinita Saxena vs Pankaj Pandit
In this case, the petitioner filed a case to get the divorce from the respondent on the ground that the
respondent was suffering from Paranoid Schizophrenia which means mental disorder. She came to
know these after her marriage. Here, the court grants the divorce on the ground of insanity of
husband.
Leprosy
Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. this disease is
transmitted from one person to another. Thus it is considered as the valid ground for divorce.
In Swarajya Lakshmi vs G. G. Padma Rao
In this case, the husband filed the case for granting the divorce on the ground of leprosy. He claimed
that his wife is suffering from incurable leprosy with the expert’s reports. Here he succeeds in getting
the divorce on the ground of leprosy.
Venereal Disease
Under this concept, if the disease is in communicable form and it can be transmitted to the other
spouse, then this can be considered as the valid ground for divorce.
Illustration
A and B married on 9 September 2011. Later A suffered from a venereal disease and it is incurable.
There’s also a chance that B can also get infected by that disease if she lives with A. Here, B can
approach the court for dissolution of marriage
Renunciation
It means when one of the spouses decide to renunciate the world and walk on the path of the God,
then the other spouse can approach the court and demand the divorce. In this concept the party who
renunciates the world is considered as civilly dead. It is a typical Hindu practice and considered as a
valid ground for divorce.
Illustration
A and B got married and lives a happy life. One day A decides to renunciate the world. Here, B has a
right to approach the court and seek the remedy of divorce.
Presumption of Death
In this case, the person is presumed to have died, if the family or the friends of that person does not
hear any news about the person alive or dead for seven years. It is considered as the valid ground for
divorce, but the burden of proof is on the person who demands the divorce.
Illustration
A was missing from the last seven years and his wife B does not get any news about him of being
alive or dead. Here B can approach the court and ask for the divorce.
Concept of Divorce with Mutual Consent
As per Section 13B, the person can file the petition for divorce by mutual consent of both the parties.
If the parties want to dissolve their marriage as a mutual consent are required to wait for one year
from date of marriage. They have to show that they are living separately for one or more year and not
able to live with one another.
No petition for Divorce within one year of Marriage
As per Section 14, no Court will entertain the petition of divorce within the one year of the marriage.
But can be entertained if the matter is related to bigamy, and where the consent of the spouse was
taken through misrepresentation, fraud, undue influence etc.
Remarriage of Divorced Person
As per Section 15, after the marriage gets dissolved and no further petition was filed by any of the
spouses against the order of the court and the time for appeal has expired. At that time it is assumed
that both the spouse are satisfied. Then only the divorced person can marry again.
Evolution of Family Courts
Introduction
Marriage is an institution which is considered as sacred in India. But with the changing times
marriage has become a subject of great judicial scrutiny. Before 1984 all family matters were seen by
ordinary civil court judges who used to deal with matters like recovery of money or property. In 1984
the Government of India after the recommendation of the Law Commission in their 59 th Report the
family courts were created by a Gazette notification of the Central Government. This Act was known
as ‘The Family Courts Act, 1984’.
Jurisdiction
1. Civil matters
The family courts exercise the entire jurisdiction which is exercised by any District Court or
any subordinate civil court in the following matters-
• Matrimonial causes
• Maintenance and alimony of spouses
• Custody and guardianship of children
• Settlement of spousal property
2. Criminal matters
The judge is vested with the power exercisable by the Magistrate of First Class under Chapter IX of
Code of Criminal Procedure which is Order for maintenance of wives, children and parents.
Powers of Family Court
1. The family court has the power to make their own procedure.
2. They are not required to record the oral statement of the witness at length.
3. The appeal from family courts lies directly to the High Court.

4. The Family Court can receive any document or statement even if it is not admissible under
Indian Evidence Act 1872.
Procedure to be followed by family court
1. Section 9 provides that the family court should try to resolve the matter through conciliation
and settlement.
2. If there is possibility of settlement of dispute the court should adjourn the proceedings until
such settlement is arrived at.
3. The parties of the proceeding are not required to hire a legal practitioner; however they are
entitled to appoint an ‘amicus curie’ to assist the parties in the settlement proceedings.
4. In camera proceedings can be ordered if the parties desire. (In camera proceedings means that
the public is not allowed to see the proceedings)
5. Judgment should be concise with the statement of the case, determination of the decision and
the reason for the decision.
6. Provisions of Code of Civil Procedure, 1908 are applied in the enforcement of the order or the
judgement.
7. The Court can take assistance of medical and welfare experts.
Appeal
1. Appeal from judgment or order of Family Court can be made to the High Court within 30
days of passing the order or the judgement.
2. The appeal can be on both question of law and question of fact.
3. The appeal should be heard by a High Court bench of two or more judges.
4. No appeal lies against an order which is passed with the consent of the parties.
Steps to follow for registering a suit in a Family Court

1. If a person wants to register a suit in the family court then he needs to describe all the details
clearly on a watermarked paper and submitted along with the court fees.
2. Along with the suit papers the petitioner should attach an affidavit that all the facts stated in
the plaint is true.
3. The papers are submitted to the registrar of the Family Court who verifies all the relevant
documents.
4. These files are presented to the Principal Judge of the Family Court. After verification of each
file and hearing the petitioners, the Principal Judge decides whether the suit is fit for
registration.
5. The applicant files the summons form and gets the next date for hearing.
Challenges
1. Inadequate number of conciliators- In many Courts it has been observed that they don’t
have counsellors or the counsellors are inapt. A major problem is the counsellors keep
changing frequently.
2. Attitude of Family Court Judges- The judges appointed to the family court do not have any
special expertise in dealing with family matters, nor do they have any special expertise in
settling disputes through conciliation. The appointment of women judge in Family Court is
still a dream to be achieved.
3. Lack of Uniformity in Rules and Procedures- The procedure established in different High
Courts have laid down different rules of procedure. This causes confusion during the
proceedings. There are still many High Courts who have not yet established Family Courts.
4. Permitting Lawyers- Though the act has provided that the proceedings should be conducted
without a legal practitioner, the system did not create any alternative system of simplified
rules. The litigants are at the mercy of court clerks and peons to advise them on the rules
followed.
5. Poor state of infrastructure- The Family Court suffers from lack of basic infrastructure. In
maximum Family courts there is absence of drinking water, canteen, typist, notary.This lack
of basic requirements creates hardship. The working conditions are basically unhygienic and
poor.
So far in India 153 family courts have been established. Yet many of them lack basic infrastructure
and proper rules and procedure. There are many states that still don’t have family courts like Haryana,
Arunachal Pradesh, and Mizoram.
However, the court has proved to be one of the most efficient mechanisms for solving family disputes.
Many marriages have been saved, many women were given their basic rights and many family
disputes have been resolved.
Though the record of Family courts have been pretty much mixed, formulating of certain remedies
such as uniform procedure, stricter laws and improvement in the infrastructure can improve the
functioning of the court.
Bibliography
 https://www.lawfarm.in
 https://blog.ipleaders.in
 http://www.legalserviceindia.com
 http://www.differencebetween.net
 https://www.srdlawnotes.com
 https://www.academia.edu
 http://www.shareyouressays.com
 http://www.infipark.com
 https://www.studocu.com

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THE ICFAI UNIVERSITY

ICFAI LAW SCHOOL

Rajawala Road, Dehradun

Family Law Assignment

Submitted to- Submitted By-

Dr. Ashish Singhal Twinkle Rajpal

Who are Hindus?

Sources of Hindu Law

I. Ancient Sources Under this would come the following:

II. Modern Sources

Under this head would come:

(i) Justice, equity and good conscience

(iii) Digests and Commentaries-

II. Modern Sources

Nature and Scope of Hindu Law

iv. Acts of the Parliament

ii. Imperial Legislation

iv. Principles of Justice, Equity and Good Conscience.

According to the Dharmashastra, there are four goals of human life- Artha, Dharma,

Conclusion: – The Mitakshara system is Conservative. It provides good security in times of

Section 5 of Hindu Marriage Act, 1955 states:-

1. neither party has a spouse living at the time of the marriage

2. at the time of the marriage, neither party-

a. is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

The eight types are:

Guardianship Under Hindu Law

(i) Guardianship of person of minors,

(ii) Guardianship of the property of minors, and

(iii) De facto guardians, and

(iv) Guardians by affinity.

Guardianship of the person

In Gita Hariharan v. Reserve Bank of India and Vandana Shiva v. Jayanta Bandhopadhaya, the

(b) Right to determine the religion of children,

(c) Right to education,

(d) Right to control movement, and

(e) Right to reasonable chastisement

Guardians Appointed by the Court

Different Theories of Divorce

Grounds of Divorce as per The Hindu Marriage Act

In Swapna Ghose v. Sadanand Ghose

In Sachindranath Chatterjee vs Sm. Nilima Chatterjee

1. What is considered as Mental Cruelty against Husband by wife:

In Balram Prajapati vs Susheela Bai

1. False accusation of adultery.

Humiliating the wife in front of family and friends

1. Permanent abandonment of the other spouse.

In Bipin Chander Jaisinghbhai Shah vs Prabhawati

In Suresh Babu vs Leela

1. The respondent has been incurably of unsound mind.

In Vinita Saxena vs Pankaj Pandit

In Swarajya Lakshmi vs G. G. Padma Rao

Concept of Divorce with Mutual Consent

No petition for Divorce within one year of Marriage

Remarriage of Divorced Person

• Matrimonial causes

• Maintenance and alimony of spouses

• Custody and guardianship of children

• Settlement of spousal property

Powers of Family Court

1. The family court has the power to make their own procedure.

3. The appeal from family courts lies directly to the High Court.

Procedure to be followed by family court

7. The Court can take assistance of medical and welfare experts.