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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 justice 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
Origin of Hindu law
The Hindu system as modified through centuries has been in existence for over five thousand
years and has continued to govern the social and moral patterns of Hindu life with harmonizing
the diverse elements of Hindu cultural life. Magne says, Hindu law has the oldest pedigree of
any known system of Jurisprudence and even now it shows no signs of decrepitude.
Nature and scope of Hindu Law
Hindu law, though believed to be of divine origin, is based essentially on immemorial custom
and many of the acts of the people which were purely of a secular nature. But the secular nature
of the acts have been modified to suit the religious preferences of a Brahmin community. With a
desire to promote the special objects of religion or policy, they have used their intellectual
superiority and religious influence to mold the customs of the people.
Who are Hindus
The term Hindus denotes all those persons who profess Hindu religion either by birth from
Hindu parents or by conversion to Hindu faith. In Yagnapurus dasji v. Muldas [AIR 1966 SC
1119], the Supreme Court accepted the working formula evolved by Tilak regarding Hindu
religion that acceptance of vedas with reverence, recognition of the fact that the number of
Gods to be worshiped at large, that indeed is the distinguishing feature of Hindu religion.
In Shastri v Muldas SC AIR 1961, SC has held that various sub sects of Hindus such as
Swaminarayan, Satsangis, Arya Samajis are also Hindus by religion because they follow the
same basic concept of Hindu Philosophy. Converts and Reconverts are also Hindus.
If only one parent is a Hindu, the person can be a Hindu if he/she has been raised as a Hindu.
In Sapna vs State of kerala, Kerala HC, the son of Hindu father and Christian mother was held
to be a Christian
To whom Hindu Law apply
1.
2.
3.
4.
5.
6.
Hindus by birth
Off shoots of Hinduism
Persons who are not Muslims, Christians, Parsis or Jews
Converts to Hinduism
Reconverts to Hinduism
Harijans
7.
Aboriginal Tribes
Presently, Hindu Law is applied through the Hindu Marriage Act, 1955; the Hindu Succession
Act, 1956; the Hindu Minority and Guardianship Act, 1956; and the Hindu Adoptions and
Maintenance Act, 1956
Constitutional enactments are:
Before the codification of Hindu Law, the ancient literature was the only source of the law. These
sources can be divided into four categories:
01. Shruti (Vedas)
Shruti means what is heard. It is believed that the rishis and munis had reached the height of
spirituality where they were revealed the knowledge of Vedas. Thus, shrutis include the four
vedas rig, yajur, sam, and athrava along with their brahmanas. The brahmanas are like the
apendices to the Vedas. Vedas primarily contain theories about sacrifices, rituals, and customs.
02. Smritis
Smriti means what is remembered. With Smritis, a systematic study and teaching of Vedas
started. Many sages, from time to time, have written down the concepts given in Vedas. So it can
be said that Smritis are a written memoir of the knowledge of the sages. Immediately after the
Vedic period, a need for the regulation of the society arose.
Dharmasutras: The Dharmansutras were written during 800 to 200 BC. They were
mostly written in prose form but also contain verses. It is clear that they were meant to be
training manuals of sages for teaching students.
Dharmashastras: Dharmashastras were mostly in metrical verses and were based of
Dharmasutras. However, they were a lot more systematic and clear.
Manusmriti: This is the earliest and most important of all. It is not only defined the way
of life in India but is also well know in Java, Bali, and Sumatra. The name of the real author is
not known because the author has written it under the mythical name of Manu, who is
considered to the the first human.
Yajnavalkya Smriti: Though written after Manusmriti, this is a very important smriti. Its
language is very direct and clear. It is also a lot more logical. He also gives a lot of
importance to customs but hold the king to be below the law.
Narada Smriti: Narada was from Nepal and this smriti is well preserved and its
complete text is available. This is the only smriti that does not deal with religion and morality
at all but concentrates only on civil law.
After 200 AD, most the of work was done only on the existing material given in Smrutis. The
work done to explain a particular smriti is called a commentary. Commentaries were composed
in the period immediately after 200 AD. Digests were mainly written after that and incorporated
and explained material from all the smruitis. As noted ealier, some of the commentaries were,
manubhashya, manutika, and mitakshara. While the most important digest is Jimutvahans
Dayabhag that is applicable in the Bengal and Orissa area. Mitakshara literally means New
Word and is paramount source of law in all of India.
04. Customs
Most of the Hindu law is based on customs and practices followed by the people all across the
country. Even smrutis have given importance to customs. They have held customs as
transcendent law and have advised the Kings to give decisions based on customs after due
religious consideration. Customs are of four types:
Local Custom: These are the customs that are followed in a given geographical area.
Family Custom: These are the customs that are followed by a family from a long time.
These are applicable to families where ever they live.
Class or Caste Custom: These are the customs that are followed by a particular cast or
community. It is binding on the members of that community or caste. By far, this is one of the
most important source of laws.
Guild Custom: These are the customs that are followed by traders.
Ancient
Continuous
Certain
Reasonable
Not against morality
Not against public policy
Not against any law
Proof of Custom
The burden of proving a custom is on the person who alleges it. Usually, customs are proved by
instances. In the case of Prakash vs Parmeshwari, it was held that one instance does not prove a
custom. However, in the case of Ujagar vs Jeo, it was held that if a custom has been brought to
notice of the court repeated, no further proof is required.
Usage and Custom
The term custom and usage is commonly used in commercial law, but custom and usage can
be distinguished. A usage is a repetition of acts whereas custom is the law or general rule that
arises from such repetition. A usage may exist without a custom, but a custom cannot arise
without a usage accompanying it or preceding it. Usage derives its authority from the assent of
the parties to a transaction and is applicable only to consensual arrangements. Custom derives its
authority from its adoption into the law and is binding regardless of any acts of assent by the
parties. In modern law, however, the two principles are often merged into one by the courts.
Modern Sources
Judicial Decisions (Precedents)
The doctrine of stare decisis started in India from the British rule. All cases are now recorded and
new cases are decided based on existing case laws.Today, the judgment of SC is binding on all
courts across India and the judgment of HC is binding on all courts in that state.
Legislatures / Statutes (Codification of Hindu Law)
In modern society, this is the only way to bring in new laws. The parliament, in accordance with
the needs society, constitutes new laws. For example, a new way of performing Hindu marriages
in Tamil Nadu that got rid of rituals and priests was rejected by the SC on the basis that new
customs cannot be invented. However, TN later passed an act that recognized these marriages.
Justice, equity and good conscience
Equity means fairness in dealing. Modern judicial systems greatly rely on being impartial. True
justice can only be delivered through equity and good conscience. In a situation where no rule is
given, a sense of reasonableness must prevail. According to Gautama, in such situation, the
decision should be given that is acceptable to at least ten people who are knowledgeable in
shastras. Yagyavalkya has said that where ever there are conflicting rules, the decision must be
based on Nyaya.
The Mitakshara School exists throughout India except in the State of Bengal and Assam. The
Yagna Valkya Smriti was commented on by Vigneshwara under the title Mitakshara. The
followers of Mitakshara are grouped together under the Mitakshara School.
Mitakshara school is based on the code of yagnavalkya commented by vigneshwara, a great
thinker and a law maker from Gulbarga, Karnataka. The Inheritance is based on the principle or
propinquity i.e. the nearest in blood relationship will get the property.
The school is followed throughout India except Bengal state. Sapinda relationship is of blood.
The right to Hindu joint family property is by birth. So, a son immediately after birth gets a right
to the property.
Dravidian School Of Thought (Madras School)
Maharashtra School (Bombay School Of Thought)
Banaras School Of Thought
Mithila School Of Thought
It exists in Bengal and Assam only. The Yagna Valkya smriti is commented on by Jimootavagana
under the title Dayabhaga. It has no sub-school. it differs from Mistakshara School in many
respects.
Dayabhaga School is based on the code of yagnavalkya commented by Jimutuvahana,
Inheritance is based on the principle of spiritual benefit. It arises by pinda offering i.e. rice ball
offering to deceased ancestors.
This school is followed in Bengal state only. Sapinda relation is by pinda offerings.
The right to Hindu joint family property is not by birth but only on the death of the father.
The system of devolution of property is by inheritance. The legal heirs (sons) have definite
shares after the death of the father.
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UNIT II
Marriage and Kinship
Evolution of the Institution of Marriage and Family
Definition and Forms of Hindu Marriage
Definitions of Marriage: Marriage is a civil and religious contract whereby a man is joined and united to a
woman for the purpose of civilized society. In law marriage may mean either the acts, agreements, or ceremony
by which two persons enter into wedlock, or their subsequent relation created thereby. Marriage is the civil status
or personal relation of one man and one woman joined together in a matrimonial union which was lawfully entered
into.
Characteristics of Marriage: Marriage is universal, It is for the formation of family, It forges a new social
link, It fixes the responsibility of bringing up children on the parents, It is a result of civil or religious ceremony,
Legitimization of children born out of such union which is a social need, In marriage, the male and female get the
right of mutual relationship in economic, social and biological spheres.
Origin of Marriage: The Institute of Marriage evolved in an evolutionary manner. In the earliest form of
groupings of people, sex was absolutely unregulated and the children were considered to be the children of the
group. According to Morgan, marriage institution started with group marriage, then polygamy and lastly
monogamy.
Importance of the Institution of Marriage: The institute of marriage regulates and socially validates
relatively long-term legitimate sexual relation between males and females, Marriage serves to start reproductive
process, Marriage is also a way to acquire new Kinsmen, It is only after marriage a family comes into being
Hindu Marriage:
with comforts and necessities of life within his means, to treat her kindly with affection and courtesy, to honour
the wife, not to assault or commit battery against his wifes person
Rights of a Husband are: he is entitled to the custody and the conjugal society of his wife, he is
entitled to succeed to her if she predeceases him without issue, and can utilise her Sridhana property to
relieve himself in circumstances of extreme distress
Duties of a Wife are: to attend to the needs of her husband both in religious and household
activities, to show obedience and veneration for the husband, to live with him wherever he may choose to
reside unless he is guilty of cruelty or misconduct
Rights of a Wife are: right for maintenance throughout her life, right of equality in the house of her
husband, right to bring suit for the restitution of conjugal rights, right to get divorce for the cruelty, insults, etc
Prajapatya (similar to Brahma, gift of a daughter by father, but bridegroom need not be a bachelor)
Main changes introduced in the Hindu Marriage, 1955 by the Marriage Laws (Amendment) Act, 1976
Sapinda Relationship
Monogamy: The first essential condition for a valid marriage is that neither party should have a spouse
living at the time of marriage. Monogamy is the voluntary union for life of one man with one woman to the
exclusion of all others. In the case of Varadrajan v. State, it was held that a party to be bigamous marriage could
be punished only upon the proof of the prior marriage having been solemnized according to religious ceremonies
and customs.
Mental Capacity: A marriage is bliss. A sound mind is a key to a happy married life. Clause (ii) of Section 5
of the Act lays down as one of the conditions for a Hindu Marriage that neither party must be suffering from
unsoundness of mind, mental disorder, and insanity.
Age of Parties: The Hindu Marriage Act, 1955 lays down the condition that at the time of the marriage, the
bridegroom must have completed the age of 21 and the bride the age of 18 years. In the case of Rabindra
Prasad v. Sita Devi, the court held that a child marriage is not void and observed that the marriage solemnized
in violation of Section 5 (iii) remains unaffected.
Degrees of Prohibited Relationship: Clause 10 of Section 5 of the Hindu Marriage Act, 1955 lays down
that no marriage is valid if it is made between persons related to each other within the prohibited degrees unless
such marriage is sanctioned by custom or usage governing both the parties.
Beyond Sapinda Relationship: According to Mitakshara, Sapinda means a person connected by the same
blood relation. Clause (v) of Section 5 of the Hindu Marriage Act, 1955 itself provides that the parties to marriage
should not be sapindas of each other, unless the custom or usage governing each of them permits of a marriage
between two.
The question of virginity of the bride: The Hindu bride is expected to be a virgin. If the bride had been
made pregnant by another, the husband can have the marriage set-aside by a decree of nullity, provided (a) he
was ignorant of this fact at the time of marriage; (b) he did not have marital intercourse after discovering the fact;
(c) petition is brought within one year from the date of marriage
Impotency and other physical infirmities: If the bridegroom is found impotent after the marriage, the
marriage can be set-aside under section 12 of the Act. Such marriage is voidable.
Inter-caste Marriage: The Government of India enacted Hindu Marriages Validating Act, 1949, which
validates intercaste marriages and also marriages between Hindus, Jains and Sikhs. In the case of Bai Gulab v.
Jiwan Lal, the Bombay High Court upheld the validity of Anuloma marriages.
Doctrine of Factum Valet: It is a doctrine of Hindu law, which was originally enunciated by the author of the
Dayabhaga, and also recognized by the followers of the Mitakshara, that a fact cannot be altered by a hundred
texts. The text referred to are directory texts, as opposed to mandatory texts. The maxim, therefore, means that if
a fact is accomplished, i.e., if an act is done and finally completed, although it may contravene a hundred directory
texts, the fact will nevertheless stand, and the act done will be deemed to be legal and binding.This doctrine came
from Roman maxim factum valet quod fieri non debuit which literally means that what ought not to be done
become valid when done.In the case of Venkatrama v. State, the court has applied the doctrine of factum valet to
child marriage and held that the marriage itself is valid though penal consequences are attracted. The child
marriages are neither void nor voidable. They continue to be valid even though punishable.
Vagdan
Formalities including the recitation of holy texts before the sacred fire
Saptapadi
State amendments
Matrimonial Remedies
Restitution of Conjugal Rights
The meaning of Restitution of Conjugal Rights: Either husband or wife has without reasonable excuse withdrawn from
the society of other, the aggrieved party, may approach the court for Restitution of Conjugal Rights and the court on
being satisfied on the truth of the statement in such petition may grant decree for Restitution of Conjugal Rights.
-> In case, husband or wife lives separately, then they can avail Conjugal Rights.
-> In case, if there was any valid reason to live separately, then they cannot avail Conjugal Rights
Case Laws:
1.
Matrimonial remedies
Constitutionality of Section 9
Remedies available
Subsistance
Reasonable excuse
Can a husband compel his wife to resign her job and stay with him?
Petition for restitution
Delay
Death of a spouse
Bigamous marriage
Injunction
Third Person
Legitimacy of children
Position of Women
Voidable Marriages
Grounds for the remedy
Impotency
Unsoundness of Mind
Adultery: Extra-marital voluntary sexual intercourse. In order to establish extra-marital, one has to depend
on ancillary facts which may be:- circumstantial evidence, birth of a child to the wife when there is no evidence of
contact with her, contracting of a venereal disease, admission on the part of the respondent, discovery of letters
which might contain such contents which suggest sexual relationship between the two
Cruelty: There is mental as well as physical cruelty. To establish legal cruelty, it is not necessary that
physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, verbal abuse and
insult, refusal to speak, ill-treatment of children, refusal to have children, etc
Desertion: Desertion is the act of forsaking or abandoning or the act of quitting without leave with an
intention not to return. Desertion has been defined in the Indian Divorce Act as implying an abandonment against
the wish of the person changing it. In the case Shanti Devi v. Govind Singh, it has been observed that for
constituting desertion two essential conditions must be fulfilled namely (i) the factum of separation; and (ii) the
intention to bring cohabitation permanently to an end
Conversion: Ceasing to be a Hindu by conversion on the part of the either party to the marriage, forms a
ground for a decree of judicial separation.
Unsoundness of Mind: The petitioner has to establish that the respondent has been incurably of unsound
mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an
extent that the petitioner cannot be expected to live with the respondent.
Leprosy: If either of the party has been suffering from venereal disease in communicable form, then the
other party can present a petition for decree of judicial separation. The leprosy which is maligned or venomous
can be termed as virulent. Lepromatous leprosy is virulent and incurable.
Venereal Disease: It requires to establish for judicial separation that the respondent has been suffering from
venereal disease in a communicable form.
Renunciation of the world: The renunciation implies a religious order which operates as a civil death and,
therefore, the other party has been given right to obtain a decree of judicial separation or divorce.
Presumption of death: That the other party has not been heard of as alive for a period of seven years or
more by those persons who would naturally have heard of him, had that party been alive.
Additional Grounds
Bigamy: Marrying again during lifetime of husband or wife: Whoever, having a husband or wife living,
marries in any case in which such marriage is void by reason of its taking place during the life of such husband or
wife, shall be punished with imprisonment and fine.
Rape or sodomy or bestiality: The husband has, since the solemnization of the marriage, been guilty of
rape or sodomy or bestiality.
In maintenance case: Either in a suit under Section 18 of the Hindu Adoption and Maintenance Act, 1956,
or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, a decree or order has been
passed against the husband awarding maintenance to wife and that since the passing of such decree or order
cohabitation between the parties had not been resumed for one year or upwards.
In child marriage case: That, her marriage was solemnized before she attained the age of 15 years, and
she has repudiated the marriage after attaining that age but before attaining the age of 18 years.
the decree has been obtained by showing reasonable excuse for his or her absence
2.
the parties cohabited with each other after the decree was passed or they have resumed living together
3.
1.
2.
3.
4.
5.
does not prevent the parties from resuming cohabitation and living together as husband and wife
Dissolution of Marriage
Grounds available for both
Adultery:
Cruelty:
Desertion:
Conversion:
Unsoundness of mind:
Venereal disease:
Presumption of death:
Bigamy:
Alternate Relief
Section 13A of the Hindu Marriage Act, 1955 states In any proceeding under this Act, on a petition for dissolution of
marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii),
(vi) and (vii) of sub-section (1) of Section 13, the court may, if considers it just to do having regard to the
circumstances of the case, pass instead a decree for judicial separation.
Section 13 of the Act to take divorce on mutual consent. Divorce by mutual consent was not incorporated in the
original Act of 1955. It has been inserted in the Section 13-B by the Hindu Marriage (Amendment) Act, 1976.
The relationship of husband and wife stands suppressed, while in Divorce the relationship of husband and
wife ceases to exist
Temporarily suspends the marital rights and duties of parties to marriage for some time by Court, while
Divorce puts an end to the marital relationship between the parties
The object is the hope of adjustment, reconciliation and reunion of the spouses, while in Divorce, the object
is to give the last resort
The parties to the marriage cannot remarry, while in Divorce, the parties are entitled to get another marriage
of his/her choice
Original marital relationship can be restored, while in Divorce, the original marital status cannot be restored
After obtaining the judicial separation, the wife can file and succeed for the maintenance, while in Divorce,
the divorced woman cannot file for the maintenance under Hindu Adoption and Maintenance Act
It is a lesser remedy than divorce, but in Divorce, it is stronger, drastic and last remedy than judicial
separation
Section 17 of the Hindu Marriage Act, 1955 states: Any marriage between two Hindus solemnized after the
commencement of this Act is void if on the date of such marriage either party had a husband or wife living; and the
provisions of Sections 494 and 495 of the Indian Penal Code, 18600, shall apply accordingly.
In Gopal Lal V. State of Rajasthan, it has been observed that where a spouse contracts a second marriage while
the first marriage is still subsisting, the spouse would be of guilty of bigamy under Section 17 of the Act and also
under Section 494 IPC if it is proved that the second marriage was a valid one in the sense that the necessary
ceremonies required by law or by custom have been actually performed.
Amar Kanta Sen v. Sovana Sen, AIR 1960 Cal. 438 159
23 Amount of maintenance
24 Claimant to maintenance should be a Hindu
25 Amount of maintenance may be altered on change of circumstances
26 Debts to have priority
27 Maintenance when to be a charge
28 Effect of transfer of property on right to maintenance
29 Repeals
30 Savings
Case Laws:
UNIT III
Hindu undivided family
Mitakshara Joint Family
Formation and Incidents
Property under both Schools
Kartha: His Position, Powers, Privileges and Obligations
Debts
Doctrine of Pious Obligation
Partition and Reunion
Religious and Charitable Endowment
Maintenance: Traditional Rights and Rights under Hindu Adoption & Maintenance Act
1956.
(i) the person adopting has the capacity, and also the right, to take in adoption;
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.
Kumar Sursen v. State of Bihar Under section 6 the law does not recognize an adoption by a Hindu of any person
other than a Hindu;
M. Gurudas v. Rasaranjan To prove valid adoption, it would be necessary to bring on records that there had been
an actual giving and taking ceremony;
Suma Bewa v. Kunja Bihari Nayak Law is well settled that adoption displaces the natural line of succession and
therefore, a person who seeks to displace the natural succession to the property alleging an adoption must prove the
factum of adoption and its validity by placing sufficient materials on record.
Devgonda Raygonda Patil v. Shamgonda Raygonda Patil Section 6 does not bar a lunatic person from being
adopted.
Earlier, an unmarried female as well as a widow had no power to adopt except under the authority
Post amendment of the act, an unmarried woman who completes the age of eighteen can adopt a child.
If she be married
A married woman whose husband is living has no capacity to adopt even with the consent of her husband
marriage is dissolved
No person except the father or mother or the guardian of a child shall have the capacity to give the child in
adoption.
2.
Subject to the provisions of 1[ sub- section (3) and sub- section (4)], the father, if alive, shall alone have the
right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the
mother has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a
court of competent jurisdiction to be of unsound mind.
3.
The mother may give the child in adoption if the father is dead or has completely and finally renounced the
world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound
mind.
4.
Where both the father and mother are dead or have completely and finally renounced the world or have
abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where
the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous
permission of the court to any person including the guardian himself.
5.
Before granting, permission to a guardian under sub- section (4), the court shall be satisfied that the
adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the
child having regard to the age and understanding of the child and that the applicant for permission has not
received Or agreed to receive and that no person has made or given or agreed to make or give to the applicant
any payment or reward in consideration of the adoption except such as the court may sanction.
(i) the expressions father and mother do not include an adoptive father and an adoptive mother;
(ia) guardian means a person having the care of the person of a child or of both his person and property
and includes-
(a) a guardian appointed by the will of the child s father or mother, and
He or she is a Hindu
2.
3.
He or she has not been married unless there is a custom or usage applicable to the parties which permits
persons who are married being taken in adoption
4.
He or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the
parties which permits persons who have completed the age of fifteen years being taken in adoption
In Rakhi v. 1st Addl. District Judge, it was observed that a person aged about 28 years can never be adopted. Sec.
10 (iv) of the Act prescribed the age at 15 years. Such adoption is to follow the prescribed procedure for the adoption
namely, actual giving and taking in adoption as prescribed in Sec. 11(vi) of the Act.
In Maya Ram v. Jainarian, it was held that the adoption of a married Jat boy who was above 15 years of age, as valid
on the force of customs prevailing in that community.
In Khazan Singh v. Union of India, where the adopted child originally belonged to the higher caste, but on adoption
was to one beloging to the Scheduled Tribe and Scheduled Tribe Certificate was granted to him on the basis of
adoption and it was held that the certificate could not be cancelled without giving opportunity to the adoptee to prove
that adoption was valid in spite of the bar of age.
the child cannot marry any person whom he or she could not have married if he or she had continued in the
family of his or her birth
any property which vested in the adopted child before the adoption shall continue to vest in such person
subject to the obligations if any attaching to the ownership of such property, including the obligation to maintain
relatives in the family of his or her birth
the adopted child shall not divest any person or any estate which vested in him or her before the adoption