Hindu Law

Popularly known as Family Law I

&
Personal Law of Hindus
 Codified and Uncodified Laws
- Uncodified Laws
Sphere of personal law
Persons governed by Hindu Law
Sources of Hindu Law
Schools of Hindu Law
The Hindu Joint family
Impartible estate
Hindu religious endowments
- Codified Laws
The Hindu Marriage Act, 1955
The Hindu Adoptions and Maintenance Act,
1956
The Minority and Guardianship Act, 1956
The Hindu Succession Act, 1956
Family Courts Act 1984
 Sphere of personal Law
• Family - a basic unit of societal fabric and a
miniature of the social organization.
• The relationship among the members of the
family is based upon consanguinity, affinity and
adoptions.
• Mating relationship through the institution of
marriage, procreation and legalizing the children,
having distinct identifiable name for the family,
common habitation economic base, closely
knitted relations are some of the important
features of the family.
• Origin of the family – there is a belief that
family emerged out of certain needs of the
human beings like sexual urge, sharing of
emotional sentiments, procreation etc.
• As the family existed there was need for a law
to govern them, people started applying such
rules what were commonly followed by them
and on later stages that itself took the frame
of personal laws.
 Forms of family
1. Patriarchal family &Matriarchal family ( these two are
based on authority)
2. Nuclear family & Extended family
3. Patrilocal family & Matrilocal family ( based on residence)
4. Polygamous family ( man with more than one wife)
polyandrous family (woman with more the one husband)
and Monogamous family (a man with a woman)
5. Patrilineal family and matrilineal family (based on
ancestry)
6. Extragamous family and Endogamous family (based on in
group and out group affinity)
 Personal law distinguished from
territorial law
• Personal law applies to those who profess a
particular religion.
• Territorial law applies by virtue of their
connection with the territory of a particular state.
• Some territorial laws superseded the personal
laws.
• The legislation rarely legislated in the sphere of
personal law to remove obnoxious customs like
abolition of sati, Hindu widow’s remarriage act
etc.
 Topics of personal law
• Succession
• Marriage and divorce
• Guardianship
• Maintenance
• Joint family and partition
• Adoption
• Religious institutions
 Codification Hindu Law
• A comprehensive Hindu Code was drafted by the Rau
committee. It was introduced in the Legislative
Assembly in 1947.
• The first personal law to be codified was Hindu
marriage act 1955 (18/5/1955) and has been
extensively amended by Act 63 of 1976.
• The next was Hindu Succession Act 1956 (w.e.f
17/6/1956)
• Hindu Minority and Guardianship Act, 1956,
supplemental to the Guardians and Wards Act, 1890.
• Hindu Adoptions and Maintenance Act, 1956.
 Persons governed by Hindu Law
• Sec 2 of HMA, HSA, HA&MA – applies to only Hindus.
• Sec 3 of HM&GA also makes it clear that the act applies
only to Hindus.
1. Hindus by birth – Myna Baee v. Ootaram (PC) 1861,
illegitimate children where the father is a Christian and the
mother a Hindu, and the children are brought up as Hindus;
- 2 questions for consideration – by what law are the children
govern and do the children succeed to his property;
Held as children were brought up as Hindus, they will have
right to inherit Christian father’s property as legal heirs, under
the provisions of Hindu Law.
 Shashti Yagnapurushdasji v. Muldas Bhundardas Vaishya

AIR 1966 SC 1119.

- Indian sect known as satsangis is distinct community
outside the Hindu sect.
- Satsang was founded by a Brahmin reformer Sri
swaminarayana in 1780.
- His followers regarded him as god and build a temple for
him after his death.
- Satsangi’s also worship Lord krishna
- Hindu temples were thrown open to Harijanas by ‘Bombay
Hindu Places of Public Worship Act 1956’.
- Article 26 – freedom to establish religious institutions
- Art 25(b) – allows opening of Hindu temple to all classes of
Hindus……
2. Off shoots of Hinduism: the followers of Bramho
Samaj, Arya Samaj, any other established by reformist
religious leaders who were themselves Hindus;
3. Persons who are not Muslims, Christians, Parsis or Jews
are Hindus;
4. Conversion to Hinduism – Ratansi Morarji v.
Administrator General of Madras AIR 1952 Mad 160 –
Australian lady converted to Hinduism by the Hindu
Missionary Society of Bombay……. Will was drafted
before her death, will was not attested……
Will is held valid.
 Perumal v.Ponnuswami – AIR (1970) 1
SC 2352
Annapazham, an Indian Christian was married to Perumal Nadar, a Hindu in
accordance with Hindu ceremonies and rights….. Son filed a petition for the share of
the property (Ponnuswami) before the District Court, Madras.
Contentions:
(i) that Annapazham was an Indian Christian and a marriage between a Hindu and
an Indian Christian must be regarded as void;
(ii) that the marriage was invalid because the appellant was already married before
he married Annapazham and bigamous marriages were prohibited by Madras
Act 6 of 1949;
(iv) that the appellant and Annapazham were living apart for a long time before the
birth of the plaintiff and on that account the plaintiff could not be regarded as a
legitimate child of the appellant.
HELD : The question whether marriage between a Hindu male and a Christian female
is valid or not did not arise for consideration in the present case because the finding of
the Courts below that Annapazham was converted to Hinduism before her marriage
with Perumal was amply supported by evidence.
- son has all the right to inherit the property from
Perumal - the person born within 280 days after
the dissolution of the said marriage, the mother
remaining unmarried is given legitimacy and
deemed to be born to the earlier father – Section
112 of Evidence Act.

5. Reconverts to Hinduism : Rajgopal v. Arumugan

AIR 1969 SC 101 a Hindu adi-drawida converted to
Christianity in 1949.
• In the 1967 election to the State Legislative Assembly, the appellant and
the 1st respondent claiming to be Adi Dravidas, stood as candidates for a
seat reserved for Scheduled Castes.
• The respondent was declared elected. The appellant`s election petition
challenging the election was allowed by the High Court.
• The SC with the Bench of Justice Bhagawati, J.Chandrachud,
J.Sarkaria, and Ranjit Singh, dismissed the respondent's appeal holding,
- (1) that the respondent was converted to Christianity in 1949,
- (2) that on such conversion he ceased to be an Adi Dravida,
- (3) that he was reconverted to Hinduism but
- (4) assuming that membership of a caste can be acquired on conversion or
reconversion to Hinduism, the respondent had failed to establish that he
became a member of the Adi Dravida caste after reconversion.
It was held that as he is not a reserved candidate the election result would
stand quashed.
- In the 1972 elections, the appellant and respondent again filed their
nominations as Adi Dravidas for the seat reserved for Scheduled
Castes;
- On objection by the appellant, the Returning officer rejected the
nomination of the respondent on the view that on conversion to
Christianity, he ceased to be an Adi Dravida and that on
reconversion, he could not claim the benefit of the Constitution
(Scheduled Castes) order, 1950, and the appellant won the case;
- The respondent challenged the election and the High Court held
that the question (a) whether the respondent embraced
Christianity in 1949, (b) whether on such conversion he ceased to
be an Adi Dravida, and (c) whether he was reconverted to
Hinduism, were concluded by the decision of this Court in the
earlier case.
 Effects on conversion on rights of
inheritance
• By The Caste Disabilities Act, 1850, the
converts do not loose their right to inherit the
property, the act is also called the Freedom of
Religion Act,
• it has abolished the customary law, which
entitles forfeiture of rights of inheritance
consequent upon conversion or deprivation of
caste.
Effects of conversion on marital rights
- Under HMA, conversion of either party is per se a
ground for seeking divorce to the other party.
In Vilayat v. Sunila AIR 1983 Delhi 351, - whether a
Hindu husband, who has embraced Islam
subsequent to the marriage, can file a petition for
divorce under HMA?
- He could do so because u/s 13 of HMA “at the
time of presentation of petition, the parties need
not be Hindus”.
 Effect of conversion on right to
Maintenance & guardianship
• The spouse who retains as Hindu has the right to
seek separate residence and maintenance from
the other who converted to other religion under
the Hindu Adoptions and maintenance act.
• The paramount consideration with regard to
guardianship is the welfare of the minor, it
becomes a factor to be taken into account in
considering the fitness of the parent to continue
as guardian.
 Module II
sources of Hindu Law
• Introduction
• Traditional Sources or ancient sources –
1. The Vedas: means knowledge from the root vid = to know.
The four Vedas are Rig, Yajur, Sama and Atharva
The oldest of these is Rigveda – consisting of 1028 hymns.
Yajur Veda – sacrificial Veda, a part of Rig Veda hymns
Sama Veda – Chant Veda, intended to chanted at certain
ceremonies
Atharva Veda – so called after the classes of priests known as
Atharavas by whom it was complied.
Vedic religion consists worships of trinity of Gods – the fire
God, the Rain God, the Sun God, the Vayu God etc.
2. The Sruti: Hindu law is considered as divine law, revealed law.
-The word sruti literally means “what was heard”.
-The vedas, are believed to be heard and thus contain the divine
revelation.
- The term sruti stands for the vedas.
- The theory of revealed law was sacred law, because it was believed
that it was directly from the god the sages heard.
- In this view the entire body of Hindu is emanated from Srutis, i.e.,
Vedas.
- The approximate period of the Vedas is accepted to be 4000-1000
BC.
- The Sruti depict the life of our early ancestors, their customary law
etc.,
3. The Smritis: the word Smriti literally means “what has
been remembered”.
-The smritis are based on the memory of the sages who
were the repositories of the sacred revelation.
- The smritis are divided into Dharmasutras and
Dharmashastras - to expound the meaning contained
in the vedas. (mainly to deal with the duties of men in
their various relations)
- Dharmasutras were mostly written in prose, though a
few of them were written in prose and verse.
- The main dharmasutras were Gautama, Baudhyana,
Apastamba, Haridrasa, Vasista and Vishnu.
• Dharmashastras are mostly in poetry form.
• They deal with the subject matter in a very systematic
way.
• The dharmashastras are divided into three parts:
Achara (rules of religious observances), Vyavahara (civil
law) and Prayachitta (penance or expiation)
• In Vyavhara rules of substantive and procedural law is
discussed.
• The writers of the smritis are termed as ‘smritikara’
and Manu(supreme authority), Yajnavalkya, Narada,
brihaspathi are some of the great smritikaras.
3. Digests and Commentaries: there was much need
for clear and systematic exposition of rules of law,
legal concepts and principles,
 The rules of enunciated in the smrities were not
always clear cut and they did not cover all
situations
 One smriti differed from the other, these needs
were satisfied by the commentators and digest
writers.
 The conflict between the smriti and commentary,
the later will be of great importance.
• Commentaries on all the smrities put in a book is
termed as digest and commentary on each smriti
written in separate book is called commentary.
• Most honoured commentary on Manusmriti are
by Medhatithi, Govindraja and Kulluka Bhatta,
Ashaya and Vishnuvamin.
• Some of the Commentaries on Yajnavalkya smriti
are Visvarupa, Vijnansehwara, Apararka,
Shulapani and mitra Mishra
• Among all these commentaries Mitakshara in
various parts of the country and Dayabhaga in
bengal is very much authoritative.
• Dattaka Mimansa and Dattaka Chandrika are
the authoritative commentaries on Adoption,
written by nanapandita
4. Customs: Contribution of Historical school of
Jurisprudence, conclusively established in early
societies is main vehicle for legal development.
 origin and nature of custom: by forming a
group, to lead a harmonious life, conform to
certain patterns of human behavior.
Types of customs : Local, class, family custom
Essentials of valid Custom:
Ancient
Invariable and continuity
Reasonableness
Clarity and unambiguity
Not opposed to public policy
Not opposed to express provisions of law,
Onus
 Modern Sources
1. Judicial decisions:
2. Legislation:
3. Justice, Equity and Good Conscience
 Module III
School of Hindu Law
• Mitakshara and Dayabhaga are the two important
schools of Hindu Law which has given us the required
information about the present legislated laws.
• It remarked the smritis and did not agree on all the
concepts of smrits
• These are two commentaries on two different smritis
• Mitakshara written by Vijnaneshwara is a running
commentary on Yajnavalkya Smriti
• Dayabhaga is a commentary written by Jimuthavahana
as it has not shown on which particular smriti the
comment was written, it is more clearly called as
Digest.
• Mitakshara is written on later part of 11th century – it is a
comprehensive commentary which deals with all titles of
Hindu law.
• It prevails and accepted through out India and Dayabhaga
was accepted in Bengal and Assam.
• Mitakshara is sub-divided into five schools-
 The Banaras School – whole of North India
 The Mithila School – Tirhoot and North Bihar
 The Dravida or Madras School - Madras
 The Bombay or Maharashtra School – whole of Bombay or
Mharashtra and
 The Punjab School – North-west part of country
 Differences between Mitakshara and
Dayabhaga Schools of Law
Mitakshara
1. As regards Joint Property:
 Right to property of the
Coparcener arises by Birth
 Son is a co-owner with the father
of the ancestral property
 Father has the restricted power
of alienation of ancestral
property
 On death of the member the
property will fall on other
members on rule of survivorship
 The members of the joint family
cannot dispose of their shares
while undivided
Dayabhaga
 Right to Property of the
Coparcener arises by Death
 Son has no right to ancestral
property during father’s life time
 Father has the absolute power of
alienation of ancestral property
 On death of the holder of the
property, the property will fall on
his legal heirs on the rule of
inheritance or succession
 Any member of joint family may
sell or give away his share even
when undivided.
 Mitakshara school
2. As regards inheritance:
 Inheritance is governed by the
rule of consanguinity
 Cognates are postponed to
agnates.
 Doctrine of factum valet:
recognition is to a very limited
extent.
- Under the new Hindu Law, the
difference between the two
schools is no longer tenable
Dayabhaga school
 Inheritance is governed by the
rule of affinity/ religious efficacy
of offering pindas to the dead
ancestors.
 Some cognates like sister's sons
are preferred to many agnates.
 Extended to full recognition to
doctrine of factum valet.
- Under Hindu Succession Act, 1956
we have one uniform law of
succession for all Hindus, whatever
school they may belong.
 “factum valet quod fieri non debuit” – what ought not
to be done becomes valid when done.
-The doctrine declares that a fact cannot be altered by a
hundred texts of law.
 migration and the school: a Hindu family carries with
it, its laws including customs of locality and the burden
is heavy on the party alleging otherwise.
 Where a Hindu family migrates from one part of India
to another, prima facie they carry with them their
personal law, and if they are alleged to have become
subject to a new local custom, their new custom must
be affirmatively proved to have been adopted.