Updated: Dec 16, 2020
Hindu Law is one of the oldest systems of personal law. Its sources are : Veda Smriti Sadachara Sampada Priyamatmanaha. Evam Chalurvidam Prahuhu Sakshat Dharmasya lakshanam.
i) Vedas ii) Smritis iii) Custom iv) Equity & Good Conscience are the four sources of Dharma
v) Judicial precedents and vi) Legislation, are two additional sources. The concept of Dharma is of great protean significance. An excellent elaboration of it is found in the History of Dharma Sastras by Prof.. Kane (Vol. 1). English jurists also used the term. "Dharma",
as this had wider significance and value than "Law".
i) Vedas :
The meaning is 'Revelation'. The earliest sacred book among the Hindus were called the vedas. The main work of compilation was made by ' Vedavyasa'. It is he who classified the Vedas into Rigveda, Yajurveda, Samaveda & Atharvanaveda. Each Veda in turn consists of SAMHITHS & BRAHMANAS. Samhita (Mantras) is a collection of Mantras. Mantra is the derivative of 'Man', which means 'to think'. These are thoughts that illumined the darkest regions and recesses of the human mind. There are millions of them. The mantras have been give theological exposition in the Brahmarias, Series of injuctions are provided, In later years collections of these became essential and were epitomised in the form of sutras (Thead). The Sutras were a bewildering maze of vedic rituals; and presented a clue tothe intricate labyrinth of Brahmanas.
ii) Smriti :
Means that which is 'Remembered'. The dark unfathomed caves of vedic ocean contained innumerable gems of the purest ray serene but only a few could dive down to bring them to the light of the day. Such gems were the distilled wisdom of the ages. But they were learnt by heart and were remembered. They were transferred by words, from generation to generation. Three division are of interest. Srauda sutras, Grithya sutras and Dharma sutras(Rituals, domestic ceremonies and forensic law). The Dharma sutras were the legal maxims dealing with the law of the Government, of the people and of the society. It was from these that Manu, Yajnavalkya and others have drawn freely. The primary authors of the smritis are the great sages, like Angiras, Yama, Apasthamba, Brihaspati, Daksha, Gouthama, Vasista. Among the great works Manu Smriti is of paramount authority. Whatever Manu said was medicine. It was a collection of the laws and also the theological and metaphysical speculation running to 1.8 divisions. Next in order comes Bhashyas-commentaries Yajnavalkya Smrit; and Narada smriti. There are also many other commentaries and digests.
Commentaries on the code of Manu and Yajnvalkya smriti art
illuminative. The most authoritative and celebrated of all are: the text; Mitakshara by VIJNANESWARA and Dayabagha b> JIMUTAVAHANA.These two Mitakshara and Dayabhaga are, in particular, commendable schools (called so by Colebrook) for the interpretation of Hindu Law, The Mimamsa rules of Jaimini are also o: some consequence. Other Bhashyas:
Veeramitrodaya by Mitramisra, Vivade Ratnakara by Chandeswara, Smriti Chandrika by Devan and Bhat Vyvashara Mayuka by Nilakanta, Kubera's Dattaka Chandrika (South India) Dattaka Mimamsa by Nanda Pandit (North, India).
iii) Custom :
The third source is Sadachara, i.e., the usage of Virtuous men. It was not a written law. But it grew from the consent of all men. Custom as defined by Austin means the positive law enshined by Judicial recognition upon pre-existing custom. As per the word 'Sadachara' the practices of good men were considered as superior evidence of the prevalence of Dharma. In the Ramnad case (i.e., Collector of Madurai V. Muttu Ramalingam) it was held that
'Under the Hindu system, clear proof of usage would outweigh the written texts of law.
In this case M was a Zamindar. In 1795, his property was taken over by British, as he had waged war against the Govt. But the property was returned to his sister Rani Mangaleswari in 1803.
She had no issues. She took Annaswami in adoption. He too had no issues, he took Ramaswamy in adoption. He too had no issues. When he died, his wife Rani Parvati took Muthu Ramalingam in adoption. This was rejected by Revenue Dept. as void. Rani Parvati filed a suit for declaration that the adoption was valid and the court decreed in her favour. The collector, appealed to the Privy Council. Held, taking adoption after the death of the husband, with the consent of the relatives was a custom in vogue in Madurai and this custom had been established. Hence, it upheld the adoption as valid. Custom must have a long usage, and must not be contrary to justice, equity and good conscience. It must be self consistent and complete by itself. It must have been acted upon for a long time as was declared by the Supreme Court in Saraswathi Ammal Vs. Jagadambal. Custom may be local, Regional or peculiar to a family. If the above requisites are fulfilled, the courts recognise them as "law". Thus, this is an independent source of law.
iv) Equity and Good conscience : As a source of law this has no independent treatment. It is relative and dependent on the circumstances. Primarily this was the domain of the courts.
v) Judicial Precedents : Though in point of time this is of recent origin, the contribution by the judiciary to the field of Hindu Law is commendable. A number of decisions of the courts are quoted and followed.
vi) Legislation : The final but an important source is legislation. Sweeping changes have been made by effecting changes to various statutory enactments. Innovations additions and changes have been made. The Caste Disabilities Removal Act of 1850, abolished the Law which penalised the renunciation of Hindu religion. The Hindu Widow's Remarriage Act legalised widow remarriages. Child Marriage Restraint Act 1929 made the child marriages punishable. Special Marriages Act 1954 provided for marriage by Registration.
The recent statutes: The Hindu Marriage Act, the Hindu Adoptions and Maintenance Act, The Hindu Minority and G irdianship Act, The Hindu Succession Act, have revolutionised the old law in their respective areas.
Ch. 1.2 MITAKSHARA AND DAYABHAGA
The two schools Mitakshara and Dayabhaga spring from the same source the ' Smriti'. Vignaneswara's commentary about the 10th century, applicable throughout the territory of India, came in the form of 'Mitakshara' (a treatise). Jimutavahana's commentary, the 'Dayabhaga' became operative in particular areas in India, namely, Bengal and Assam. The two systems may be compared to the Branches of a single tree, the Smriti. Mr. Cole-Brooke called them the Schools of Hindu law.
Differences : Mithakshara
1. Heritage : Recognises, two classes of heritage-obstructed and non- obstructed (appratibanda daya and Saprathibandadaya.)
2. The right of the coparcener arises by birth only.This is the cornerstone of Mithakshara.
3.Recognises a coparcenary between the father and sons. Right to partition is recognised The Head of the family is the Kartha who may alinate property for legal necessity
4.Religious efficacy is not the guiding rule.The natureof sue- cession is by survivorship. Agnates are preferred to cognates. 5. The widow of a coparcener,enjoyed a limited estate for her life time. After her death the
to succeed to her husbands share property reverted to the Reversioners (heirs of the husband). This has been abolished under Sn. Succession Act.1956.
Differences : Dayabhaga
1. There is no such division. All property is considered obstructed,
2. The right does not arise by birth alone. His right arises on the death of his father.
3. Dayabhaga does not recognise such a coparcenary. The son has The no partition. The father is the absolute owner of the property and authorises to dispose of at his pleasure.
4. Religious efficacy is the ruling principle in finding out the order of succession,
5. Dayabhaga recognises the right of a widow in an undivided family if he dies without issue. She may in such cases enforce-a partition on her own accord. 14 of Hindu
These are the major differences between these two schools though the source is "the smriti".
Ch. 1.3 Hindu
Ancient Sanskrit texts have not used the word "Hindu". Hindu is derived from Indus' or v Sindu' and it denoted the people living east of the river Sindu. Etymologically Hindu means a person to whom "Meannes" is an offence. The meaning given by Tilak to "Hindu" wasaccepted by the courts. "A Hindu is a person who respects Vedas with devotion, considers road to salvation as varied, and realisation that plurality of "Gods" was the basic truth". In interpreting, the courts have put a liberal construction, to construe who a Hindu is. Hindu includes a Hindu by birth, by religion, by conversion or reconversion ; it also includes Virashivas, Lingayats, Brahmo, Arya and Prarthana Samajits, Buddhists, Jains and Sikhs.
Statutory Definition : The four Acts: The Hindu Marriage Act, The Hindu Succession Act, The Minority and Guardianship Act and the Hindu Adoptions and Maintenance
Act, have specified the persons who are govened by Hindu Law.
The Hindu Law applies :
i) to Hindus by birth and to Hindus by religion in any form. This includes Virashiva, Lingayats, and followers of Brahmo, Prarthana and Arya Samajists.
ii) to any person who is a Buddhist, Jaina, or Sikh by religion.
iii) to any person domiciled in India and who is not a Muslim, Christian, or Jew by religion;
The presumption is that a person domiciled in India is a Hindu if he is not a Muslim, Christian, Parsi, Jew by religion. The Act in the Explanation further provides as follows:
iv) The following persons are Hindus, Buddhists, Jains or Sikhs.
a) Children (legitimate or illegitimate) of parents who are both Hindus, Buddhists, Jains or Sikhs.
b) Children (legitimate or illegitimate) of parents one of whom is a Hindu, Buddhist, Jain or Sikh.
c) Converts or re-converts to Hindu, Buddhist, Jaina or Sikh religion.
v) The Acts shall apply to members of Schedules Tribes according to Notification by the Central Govt.
vi) Conversion : According to Hindu Sastras "a Hindu is born, and, not made". But, this has been changed and a non-Hindu can become a Hindu by conversion. This is established in a series of cases. The courts have held that a formal ceremony is not necessary for conversion to Hinduism ; If the conversion is with bona fide intention, and the person has taken to a Hindu mode of life and has followed its usages and customs, or the community has approved of him he is a Hindu. If a child has been brought up as a Hindu, according to the usages and Customs of the Hindus, and, the community has approved of him, the child is a Hindu. No formal conversion is necessary. Leading Cases: In Perumal V. Ponnuswamy, the Supreme Court held that mere declaration by a person that he is a Hindu, will not convert
him into Hinduism. The persons bonafide intention in his conversion to Hindu faith and his conduct as evidence thereof are sufficient. No formal ceremony is necessary. In Commissioner of Wealth Tax V Sridharan the Supreme Court has held that the son of a Hindu father and Christian mother (under Special Marriage Act), was a Hindu as the father had bonafide intention and had declared his family as a Hindu Undivided Family.
Abraham V Abraham, the Privy Council decided that the petitioner was a Christian, and, hence Hindu Law was not applicable,
Hindu Law does not apply to :
i) Illegitimate child of a Hindu father by a Christian mother, brought up as Christian.
ii) Hindu converted to Christianity, or to Muslim or Jewish parsi religion.