Hindu law

Unit 1
• Hindu law is considered to be the most ancient and prolific law in the world.
• It is about 6000 years old.
• Propose: 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.
• Needs: 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, History and Concept of Hindu Law

• Greeks: 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.
• Concept of Dharma
a. According to Hindu Mythology dharma means “duty”.
b. Buddhists believe that the word Dharma means only a universal law which is
very much essential, and
c. 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.
a. Just like the sociological duties,
b. legal duties or
c. spiritual duties.
d. Dharma can be referred to as the concept of justice.

Sources of Dharma
1. “Bhagwat Geeta”, God creates a life using the principles of Dharma. They
are patience, forgiveness, self-control, honesty, sanctity (cleanliness in the

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 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.
2. 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.
3. Manusmriti deals with religion, administration, economics, civil and criminal
law, marriage, succession, etc. These we study mainly in our law books.

Dharma
❖ LAW- enforceable part of dharma

• Law is Dharma itself

• According to Austinian concept of law
(Command of sovereign in a political society)
• Dharma does not emanate from command of sovereign.
• Sovereign not exempt from dharma, sovereign is also below Dharma.
FUNCTION of Dharam/Hindu law:
1) SMRITIS : sovereign is bound to obey the law equally along with his
subjects
• Dharma includes all kind of -
a. Rule
b. Religion
c. physical
d. legal
e. moral
f. metaphysical / scientific
• Dharma is derived from the root – ‘Dhri ( Hold, Support, Maintain )
• Rules governed the whole mankind

2) Manu : says that “ The Vadas” “The Smriti” ,the approved usage ,and
what is agreeable to One’s Soul Or Good Conscience (direct evidence
of dharma)

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 3) Yajnavalka : The Sruti, The approved usage , what is agreeable to
ones soul ( or good conscience) and desire spring from due
deliberation, are ordained the foundation of dharma, law)
4) Mayne : Hindu law is the Law of “ Smritis” as expounded in the
sanskrith commentaries and digests ,which as modified and
supplemented by custom, is administered by the courts
5) Madras High Court: Explained the term Hindu Law
A) Not like customary law of the country like the common of England
B) Nor statute law in the sense that some king/legislature formed the
law and enforced its acceptance by people.

Hindu law is commonly understood is a set of rules contained in several Sanskrit

books which the sanskritists consider a book of authority on law governing the
Hindus.

❖ Hindu Law is not “lex loci”

(lex loci- law of locality – which applies only to a particular locality or
state)
• Hindu law is not lex loci but a personal law
• Hindu whatever country he may be, is governed by Hindu law in all personal
matters
• Territorial law of that country would not apply on the “personal matters “ of
that Hindu

❖ Effect Of Migration
❖ If Hindu migrates from one part of the country to another, retains the same person
law and not subject to the law of the place to which he migrates “It is however
open to the migrated family to renounce the law and the customs of his place of
origin and to adopt those of the state to which it has migrated”.
❖ Origin
1.Extreme views – “ Divine origin “
Divine origin having been derived from the “Vedas“ which are revolution from
the almighty

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 2.Based upon immemorial customs and usage

Applications of Hindu Law:

Courts apply Hindu Law before independence was derived from the acts and status
passed by the British parliament and provisional legislature from time to time.
In 1774 onwards Britishers approved customary and textual Hindu Law only if it is
not conflict with the statutory law.

Article 372 (2) – All law subject to such adoptions and modifications as might be
made by the president under clause 2 of the article
in forced in the territory of India immediately before the commencements of the
constitution i.e. 26th Jan 1950 (Till amendment), after constitution was adopted
major laws were passed by the parliament.
1. Hindu Major Act -1955
2. Hindu adoptions and maintenance Act 1956
3. Hindu majority and guardianship Act 1956

Who are Hindus?

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A person can be called as a Hindu, who:

1. Religion: Hindu by religion

2. Buddhist, Jaina or Sikh by religion.
3. Born from Hindu parents.
4. Muslim, Parsi, Christian or Jews and are not governed under Hindu law.
5. Illegitimate children where both parents are hindus.
6. Illegitimate child of Christian father and mother hindu (brought upas hindus)
7. Hindu by Religion:

• If any person follows the religion by practicing it or by claiming it can be

called as a Hindu.
Case law:
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.
8. Conversion and Reconversion to Hinduism:
Propositions for conversion:
1. Formal ceremony of conversion or reconversion.
2. Expresses a bona fide intention to become a Hindu by conversion.
3. If he bone fide declares that he is hindu.
9. Hindu by Declaration:
Mohandas v Dewaswan Board:
Facts: one Jesudas a catholic Christian by birth and a famous playback singer
used to give devotional music in Hindu temple and worshipped there like
Hindu.
He has also also filed a declaration “I declare that I am a follower of Hindu
faith”.
Judgement: court held that jesudas was a Hindu and could not be prevented
from entering the time.
Principles:
4. If a person declares that he is a follower of Hindu faith.

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 5. Declaration is bona fide and not made with any ulterior
motive/intention, it amounts to his having accepted the Hindu approach
to God. He becomes Hindu by conversion.

• Under the codified Hindu law, any person converted to Hinduism, Buddhism,
Jainism or Sikhism can be called a Hindu.

Perumal vs ponnuswami,
Facts: perumal hindu married to Christian Annapazham and had son named
Ponnuswami. In the future due to certain differences, they were living separately.
Poonuswami asked Perumal for the share of his properties. Perumal denied and said
“marriage between a Hindu and a Christian is void”.

Judgement: 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.

Rules:

• Intention:- 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.
• Born: a. if a person is born from a Hindu family, he/she is a Hindu.

b. 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.

• One of the parents 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.
• 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.

Section 2 of the Hindu Marriage Act 1955: states that this act applies to any person
who is a Hindu by birth or who has changed his/her religion to either any of its forms

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such as Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya
Samaj. Any person who is a Buddhist, Jain, or Sikh also comes under this act. It also
applies to any person living outside this territory except who is a Muslim, Christan,
Parsi, or Jew by religion or it is proved that such person is being governed by Hindu
law.

Sources of Hindu law

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

1. Shruti
2. Smriti
3. Customs
4. Digest and commentaries

1. Shruti (shru means to hear)

• 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, primary, parmanent 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.
6. Rig Vedas: eulogies of gods and laws of sacrifices.
7. Yajur Vedas: rituals and magic properties.
8. Sam Vedas: prayers, mantra,
9. Atharva Vedas: magic charms.
• 6 vedangas and 108 upanishads (sitting down near rushies)

2. Smritis (language of the inspired men)

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): Gautama, Baudhyana, apartamba, Vasishtha, Vishnu

and Harita.
• Dharmashastras (Poetry): Manu, Yajnyavalkya, Narada, Vishnu.

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 3 types of Smritis :

1. Manu Smriti: (manu) – Brahmins given higher and special statues.

Shudraes were treated very badly.
2. Yajnavalkya Smriti by Yajnavalkya: concise and liberal. Sudraes given
better title. Law of inheritance.
3. Narada smriti: more open minded. Widow remarriage was recognized.

3. 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.

4. 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.
• Customs is a habit which has been repeated for a long time and has ultimately
assumed the force of law, usage, habits, often repeated by the states etc,
custom begins where usage ends. Customs passed many generation than it is
called traditions.
• Definition: Sec 3: customs and usage signify any rule which having been
continuously and uniformly observed for a long time has obtained the force
of law among hindus in any local area, tribe community group or family. Not
opposed to public policy.

Further, the customs have been classified into two categories-

a. Legal customs
b. Conventional customs
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 a. 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. Local customs: Local customs are the customs that are practiced in a local
area. This type of custom is not highly recognized.
2. 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.

b. 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-

• Generality of Practice: A customs must be continuous in practice

• A custom should not be vague or ambiguous
• A custom must have time antiquity( before middle ages)
• 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.
• Opinion juris necessitais :- states must recognize the customs as binding
upon them as law.

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

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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.

Modern sources

1. 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.

According to Yajnavalkya, that when on a matter there were conflicting rules of law,
the matter should be decided on the basis of Nyana (natural equity and justice/
natural justice)

Katyayana also said that whatever is inconsistent with equity and justice should be
avoided.

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

In the instant case, the Privy Council barred the murderer from inheriting the
property of the victim.

2. Judicial Decisions/Precedent
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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.

In ancient times we did not have any system of reporting of cases. The doctrine of
Stare decisis and precedent are the gift of British administration of justice in India.

Reasons for implementing Precedent.

a. Firstly: All important principles and rules of HL have now been embodied
in case law. In such matters, recourse to original sources is not necessary.
Reference to leading decisions is enough.
b. Secondly: in the process of judicial interpretation, doctrines, principles
and rules have been introduced in the body of HL. For these principles,
doctrines and rules, the source of authority is precedent.

Today, the doctrine of stare decisis is part of Indian Law. Supreme Court’s decisions
are binding on all courts, though the SC is not bound by its own decisions. The
decision of state HC are binding on all subordinate courts through decisions of the
HCs are not binding on each other.

3. Legislation:
Sir B N. Rao in 1944 was appointed as Chairman (Hindu Committee). Letter B R.
Ambedkar.

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.

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.

Schools of Hindu law

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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-

1. Mitakshara School
2. Daya Bhaga School

1. Mitakshara School:
• Vijnaneshwara,(jurist 12thc) is the profounder Mitakshara School. he
studied Yajnavalkay Smriti and give lecturers or commenter’s.
• 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.

Salient features of Mitakshara School: The following are the features of this
school:s—

1. A son [now daughter also after the commencement of Hindu Succession

(Amendment) Act, 2005] has an interest in the ancestral property since birth
and is a coparcener in such property along with his father.
2. Father has restricted power of alienation of the joint family property and
the son (or daughter) can claim partition at any time.
3. Members of the Mitakshara coparcenary cannot dispose of their share
while the coparcenary is not divided.
4. The rule of survivorship was applied for the devolution of interest in
coparcenery property. It has been now abolished by Hindu Succession
(Amendment) Act, 2005.
5. The principle of inheritance under the Mitakshara law is consanguinity.

6. According to school, ‘sapinda‘ relationship is one arising between

persons through their being connected by particles of one body.

Mitakshara is further divided into five sub-schools namely

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 a. Benaras Hindu law school
b. Mithila law school
c. Maharashtra law school
d. Punjab law school
e.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.

a. 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.

b. 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.

c. 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.

d. 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.

e. 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.

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 2. Dayabhaga school
• Jimutvahana scholar studied “Manu Smirti” and propounded Dayabhaga
School.
• Dayabhaga School predominantly prevailed in Assam and West Bengal.
• It is considered to be a digest for the leading smritis.
• Its primary focus was to deal with partition, inheritance and joint family.
• 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.

Salient features of Dayabhaga School: The following can be enumerated as

salient features of this school:—

1. The son has no interest in his father’s property by reason of his birth and
right to property arises by death of the last owner.

2. Father has absolute power of alienation over all the property, whether
ancestral or self-acquired.

3. The interest of every person passes by inheritance on his death to his heirs.

4. Any member of a joint family can alienate in any manner his share even
when undivided.

5. The principle of succession is based on spiritual efficacy.

6. In this school, ‘sapinda‘ means of same ‘pinda‘, i.e., a ball of rice which is
offered by a Hindu as obsequies to his deceased ancestors. So, ‘sapinda‘connotes
those related by duty to offer ‘pinda‘to the other.

In Dayabhaga school various other commentaries were followed such as:

a. Dayatatya
b. Dayakram-sangrah
c. Virmitrodaya
d. Dattaka chandrika

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Difference between A). Mitakshara and B).Dayabhaga Schools:
1. Applicability:

A). This school is applicable in the whole part of India except in West Bengal and
Assam.

B). Applicable only in West Bengal and Assam.

2. Right to Property: A). By birth of a male child. Coparcenary come into existence
by birth.

B). right to property arises death of father (interest after death). Hence son has no
right to ancestral property during father’s lifetime. Coparcenary will come into
existence only after death of father.

3. Alienation: A). father cannot alienate (transfer) property without consent of son.

Member of Joint Family cannot dispose of their shares while undivided.

B). No restriction on alienation because father is absolute owner of property.

4. Co-owner: A). Son becomes the co-owner

B). Son is doesn’t become the co-owner if still father is alive.

5. Right of Partition: A). Son as right of Partition. He can demand partition.

B). Son doesn’t not have right of Partition because he has no right in fathers property.

5. Doctrine of Survivorship: A). coparcener will be taking property after the death
of father. Coparcener: Father – Son – Son’s Son and Son’ Son son. ( father and 3
lineal descendants). Only male descendants, daughter is not coparcener.

B). Doctrine of succession: if a father dies property will go to children.

6. Share: A). share is not defined.

B). share is defined. Because partition starts after death. Share is definite.

7. Wownership: A). unity of ownership in Mitakshara School

B). Only father is the owner and no unity of ownership.

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8. Inheritance: A). The principle of inheritance is consanguinity (blood –
relationship)

B). the principle of inheritance is spiritual efficacy (offering of pindas).

9. Doctrine of Factum Valet: A). a fact cannot be altered by hundred texts. It is

recognized to a very limited extent.

B). Doctrine if recognized full extent.

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