Family Law -I : Hindu law Part -I

Introduction to Hindu law

Hindu law is considered to be the most ancient and prolific law in the world. It has been around every phase. It is about 6000 years old. Hindu law has been established by the people, not for the purpose of removing any crime or transgression from society but it was established so that the people will follow it in order to attain salvation. Originally Hindu law was established so that the need of the people gets fulfilled. The concept was initiated for the welfare of the people.

Origin of Hindu Law

In Dharmasastra there is no word such as ‘Hindu’. It is a foreign origin. The word ‘Hindu’ came into existence through Greeks who used to call the residence of the Indus Valley nation as ‘Indoi’. Later it became a ‘Hindu’. This nation came to be known as ‘Hindustan’ and its people as Hindu. In history, the word ‘Hindu’ not only indicates a religion, but it also indicates a nation basically. The Hindu law has been modified through centuries and has been existing since the last 5000 years and has also continued to govern the social and moral figure of Hindu life by following the different elements of Hindu cultural life.

Concept of Dharma

We know that the word Dharma is related to Hindu law. Let me explain to you, the word “Dharma” according to Hindu Mythology means “duty”. Looking at the contexts and the religious references Dharma has different meanings just like, the Buddhists believe that the word Dharma means only a universal law which is very much essential, and the Jains and the Sikhs believe that it is only a religious path for the victory of the truth.

According to the Hindu Jurisprudence, Dharma means the duties in many ways. Just like the sociological duties, legal duties or spiritual duties. Through this context, we can say that Dharma can be referred to as the concept of justice.

Sources of Dharma

As referred to in the  “Bhagwat Geeta”,  God creates a life using the principles of Dharma. They are patience, forgiveness, self-control, honesty, sanctity (cleanliness in the mind, body and soul), control of senses, reasons, knowledge, truthfulness and absence of anger. Accordingly, The salvation which means “Moksha” is the eternal Dharma for humans according to Hinduism.

Hindu epics like the Ramayana and Mahabharata also refers to Dharma. They say that executing one’s Dharma is the right aim of every individual. And also at that time, the king was known as Dharmaraj because the main motive of the king was to follow the path of Dharma.

Nature of Dharma

Despite the other schools of Jurisprudence, the Hindu Jurisprudence takes more care over the duties more than the rights. The nature of these Dharma changes from person to person. There are many duties of many people in this world like earlier, the king’s duty was to uphold the religious law and the other hand a farmer’s duty is to produce food, the doctor has to cure the people, the lawyers have to fight for justice. Being a highly religious concept in nature, Dharma is multi-faceted. It contains many laws and customs in a large range of subjects which is essential and needed to be followed by each and every person. For example, Manusmriti deals with religion, administration, economics, civil and criminal law, marriage, succession, etc. These we study mainly in our law books.

Who are Hindus?

A person can be called as a Hindu, who:

• Is a Hindu by religion in any form.
• Is a Buddhist, Jaina or Sikh by religion.
• Is born from Hindu parents.
• Is not a Muslim, Parsi, Christian or Jews and are not governed under Hindu law.
• Lodge in India.

The Supreme Court of India in the landmark case of Shastri vs Muldas expressly defined the term ‘Hindu’. This case is related to the Swami Narayan temple in Ahmedabad. There is a group of people called the Satsangi who were managing the temple and they restricted non-Satsangi Harijans from entering the temple. They argued that Satsangi is a different religion and they are not bound by Hindu Law. The Supreme Court of India held that the Satsangi, Arya Samajis and Radhaswami, all these belong to the Hindu religion because they originated under Hindu philosophy.

Hindu by Religion:

• If any person follows the religion by practising it or by claiming it can be called as a Hindu.

Conversion and Reconversion to Hinduism:

• Under the codified Hindu law, any person converted to Hinduism, Buddhism, Jainism or Sikhism can be called a Hindu.
• From the case of Perumal vs ponnuswami, we can say that a person can be called a Hindu by conversion. 

In this case, Perumal was the father of Poonuswami who got married to an Indian Christian. In the future due to certain differences, they were living separately. In the future, the mother of Poonuswami asked Perumal for the share of his properties. Perumal denied and said “marriage between a Hindu and a Christian is void”. The Supreme Court of India held that a real intention is sufficient evidence of conversion and no formal ceremony of purification is needed (Conversion of Hinduism). So it is not void and Poonuswami would get a share.

• For conversion, the person should have a bonafide intention and also shouldn’t have any reason to be converted.
• Reconversion basically happens, when a person is Hindu and gets converted to a non-Hindu religion and he will again become Hindu if he/she gets converted into any four religions of Hindu.
• If a person is born from a Hindu family, he/she is a Hindu.
• When one of the parents of a child is Hindu and he/she is brought up as a member of the Hindu family, he/she is a Hindu.
• If a child is born from a Hindu mother and a Muslim father and he/she is brought up as a Hindu then he/she can be considered as a Hindu. We can explain that a child’s religion is not necessarily that of a father.
• The codified Hindu Law lays down that a person who is not a Muslim, Parsi, Christian or Jews is governed by Hindu Law is a Hindu.

What are Sources of Hindu law?

There is the two-fold classification of the sources of the Hindu law

• Ancient sources
• Modern sources

Ancient source

Ancient sources are the source that developed the concept of Hindu law in ancient times. It is further classified into four categories

• Shruti
• Smriti
• Customs
• Digest and commentaries

Shruti

The term Shruti means what has been heard. It contains the sacred words of the god. This source is considered to be the most important and essential source of all. Shruti’s are the sacred pure utterance that has been enshrined in the Vedas and the Upanishads. They have religious nexus with a person and help him in a way to attain the knowledge of salvation and incarnation. It is considered to be the primitive source containing the knowledge of the law.

Smritis

Smritis are considered as text which has been remembered and then interpreted by the rishis throughout the generation. There is a further classification of the term Smrities which are as follows

• Dharma Sutra (Prose)
• Dharmashastras (Poetry).

Commentaries and digest

The third ancient source of Hindu law is commentaries and digestives. Commentaries and digestives have expanded the scope of Hindu law. It played a very major role in developing the very concept of Hindu law. It helped in the interpretation of the smritis. Single interpretation of the smritis is called as a commentary while different interpretations of the smritis are known as digestive. Dayabhaga and Mitakshara are considered to be the two most important commentaries.

Customs

Customs is the tradition that has been practiced in society since ancient times. It is the type of practice that is under the continuous observation of the people and has been followed by the people.

Further, the customs have been classified into two categories-

• Legal customs
• Conventional customs

Legal customs

Legal custom is those customs which are enforceable or sanctioned by law. It can’t be deemed invalid until the law itself declares it invalid. There are two types of legal customs.

1. 1. Local customs: Local customs are the customs that are practiced in a local area. This type of custom is not highly recognized.

• General customs: General customs are the customs or traditions which are practiced in a large area. This type of custom is highly recognized by people.

Conventional customs

Conventional customs are customs that are related to the incorporation of an agreement and it is conditional.

What are the essentials of a custom?

Following are the essential points which constitute a custom-

• A customs must be continuous in practice
• A custom should not be vague or ambiguous
• A  custom must have time antiquity
• There must be a complete observation of the custom
• It should be certain and clear
• A custom must not oppose the public policy which will affect the interest of the general public.

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.

Onus 

Generally when a custom attains judicial recognition no further proof is required, however in certain cases where the customary practices do not attain the judicial recognition, the burden of proving lies on the person who alleges its existence.

Munna lal v. Raj Kumar AIR 1972 SC 1493

In the instant case the supreme court stated that a custom brought before a court several times, the court might hold that such custom has been enforced by the law with the necessity of its proof.

Modern sources

Judicial Decisions

Judicial decisions are considered to be the most important ingredient of modern sources. Judicial decision is considered to be authoritative and binding. The doctrine of precedent was established and it was applied in the cases resembling the same facts and circumstances of a case already decided.

The legislation is considered to be the codification of customs which plays an essential role in expanding the concept of Hindu law. Legislations are enacted by the parliament.

Justice equity and good conscience

Justice equity and good conscience is the basic rule of law. This rule of law applies when an existing law doesn’t apply in a case before the court decides the particular matter by applying its rationality and the concept of justice equity and good conscience.

This rule is considered to be the fairest and reasonable option available to a person.

In Gurunath v Kamlabai the supreme court held that in the absence of any existing law the rule of justice equity and good conscience was applied.

Kanchana v. girimalappa (1924) 51 IA 368

In the instant case, the privy council barred the murderer from inheriting the property of the victim.

Legislation

The legislation is considered to be the most important source of Hindu law. It is considered as a base for the growth of Hindu law in the modern world. It has been stated that in order to meet the new conditions of society it became a necessity to codify the law.

Schools of Hindu law

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-

• Mitakshara
• Daya Bhaga

Mitakshara

Mitakshara School: Mitakshara is one of the most important schools of Hindu law. It is a running commentary of the Smriti written by Yajnvalkya. This school is applicable in the whole part of India except in West Bengal and Assam. The Mitakshara has a very wide jurisdiction. However different parts of the country practice law differently because of the different customary rules followed by them.

Mitakshara is further divided  into five sub-schools namely

• Benaras Hindu law school
• Mithila law school
• Maharashtra law school
• Punjab law school
• Dravida or madras law school

These law schools come under the ambit of Mitakshara law school. They enjoy the same fundamental principle but differ in certain circumstances.

Benaras law school

This law school comes under the authority of the Mitakshara law school and covers  Northern India including Orissa. Viramitrodaya Nirnaya Sindhu vivada are some of its major commentaries

Mithila law school

This law school exercises its authority in the territorial parts of tirhoot and north Bihar. The principles of the law school prevail in the north. The major commentaries of this school are Vivadaratnakar, Vivadachintamani, smritsara.

Maharashtra or Mumbai law school

The Maharashtra law school has the authority to exercise its jurisdiction over the territorial parts including Gujarat Karana and the parts where the Marathi language is proficiently spoken. The main authorities of these schools are Vyavahara Mayukha, Virmitrodaya, etc.

Madras law school

This law school tends to cover the whole southern part of India. It also exercises its authority under Mitakshara law school. The main authorities of this school are Smriti Chandrika, Vaijayanti, etc.

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 its established customs.

Dayabhaga school

Dayabhaga school predominantly prevailed in Assam and West Bengal. This is also one of the most important schools of hindu laws. It is considered to be a digest for the leading smritis. Its primary focus was to deal with partition, inheritance and joint family. According to Kane, it was incorporated in between 1090-1130 A.D.

Dayabhaga school was formulated with a view to eradicating all the other absurd and artificial principles of inheritance. The immediate benefit of this new digest is that it tends to remove all the shortcomings and limitations of the previously established principles and inclusion of many cognates in the list of heirs,  which was restricted by the Mitakshara school.

In Dayabhaga school various other commentaries were followed such as:

• Dayatatya
• Dayakram-sangrah
• Virmitrodaya
• Dattaka chandrika

Sapinda relationship and degrees of prohibited relationship

All prohibited relationships are Sapinda but all Sapinda relationships are not prohibited relationships. Sapinda relationship is the chain of all the relationship from the side of the brother and sister in the family; they can’t marry each other due to prohibited relationship and also their generation till three generations from the girl side and five-generation from the boy side, till that they all are in Sapinda relationship. Avoidance of Sapinda can be achieved as the girl reaches the fourth generation and boy (brother) reaches the sixth generation after that both families can have a  marriage that will be neither prohibited relationship nor Sapinda relationship.