Family Law II - Notes by Prof.

Priyanka Chavan

INTRODUCTION TO HINDU LAW

CONCEPT OF DHARMA
Hindu law is considered to be divine origin, being derived from the
Vedas, which are the revelations of the Almighty Himself. Therefore,
the law understood by the Hindu, is a branch of Dharma i.e. the duties
and the rules of conduct (moral, religious and political) enjoined by God
on the Hindu community.
In ancient times Law of the Smritis .declare the rule of Dharma, which
covers all the systems of law, civil, religious and moral, which are
treated separately in modern times.
According to Manusmriti (Manava-dharma-shastra) Hindu Law is “what
followed by those(Smritis) learned in the Vedas, and what is approved
by the conscience of the virtuous who are exempt from hatred and
inordinate affection.”
ORIGIN OF HINDU LAW
The Hindu system as modified through centuries has been in existence
for over 5,000 years and has continued to govern the social and moral
patterns of Hindu life with harmonizing the diverse elements of Hindu
cultural life. Hindu law has the oldest pedigree of any known system of
jurisprudence

NATURE AND SCOPE OF HINDU LAW

It is based essentially on immemorial custom and many of the acts of the
people which were purely of a secular nature. The act of secular nature
have been modified to suit the religious preferences of a Brahmin
community who were considered the scholars Hindu religion, with a
desire to promote the special objects of religion or policy, the Brahmins
have used their intellectual superiority and religious influence to mold
the customs of the people.
WHO ARE HINDUS
The term ‘Hindus denotes to all those persons who profess Hindu
religion either by birth from Hindu parents or by conversion to Hindu
faith.
 Family Law II - Notes by Prof. Priyanka Chavan

APPLICATION OF HINDU LAW

TO WHOM HINDU LAW TO WHOM HINDU LAW
APPLY DOES NOT APPLY

Hindus by birth A person who converts from Hindu

to the Mohammeden faith

Hindus by religion, i.e. converts to A person who converts from Hindu

Hinduism to Christianity

Illegitimate children, where both To the illegitimate children of a

parents were Hindus. Hindu father by Christian mother
and who are brought up as
Christians.
Illegitimate children of a Christian To descendants of Hindu who had
father and a Hindu mother formed themselves into a distinct
provided that such children were community with a religion quite
brought up as Hindus. different from that propounded by
the Shastras.
Off shoots Hindus – Jains,
Buddhists, Sikhs
Reconverts to Hinduism
Harijans
Aboriginal Tribes

ENACTMENTS UNDER THE HINDU LAW

Hindu Marriage Act, 1955
Hindu Succession Act, 1956;
Hindu Minority and Guardianship Act, 1956,
Hindu Adoption and Maintenance Act, 1956.

IMPACT OF HINDU LAW UPON FUNDAMENTAL RIGHTS

The Constitution of India guarantees the right to equality and also
prohibits the States from discriminating on grounds of religion or sex
etc. (Art. 15(1)). However, the existing religious personal laws have the
effect that the men and women of different communities have different
rights with regard to the same areas like marriage, divorce and
 Family Law II - Notes by Prof. Priyanka Chavan

succession. Moreover, men and women of the same community also

have different rights in many personal areas and women in most of the
cases, have fewer rights. The continuance of religious personal laws
even after the commencement of Constitution of India raises doubts
whether these laws are governed by the Constitution at all. The
controversy has arisen partly because Constitution does not directly
mention the religious personal laws.
The Constitutional development shows that except the Hindu personal
laws the legislature has not modified any religious personal laws to
make them in tune with the Constitution. Again, even though Art. 13(1)
provides that the laws inconsistent with Part III shall become void, at
times, the Indian courts have ruled that the religious personal laws are
not governed by Part III of the Indian Constitution i.e. Fundamental
Rights Chapter.
 Family Law II - Notes by Prof. Priyanka Chavan

SOURCES OF HINDU LAW

Sources of Hindu Law

A) Ancient Sources B) Modern Sources

Sruti Smriti Commentaries Customs and usage Judicial decision Legislation

on the Smritis
(Nibandhas) Justice, equity & Conscience

Sr. A) Ancient Sources

No.
1. Sruti  Sruti (or Shruti) literally means that
which was heard.
 The Srutis are believed to contain the
very words of God.
 Divine utterance to be found in the
four Vedas i.e. Rig veda, Yajur Veda,
the sama veda and the atharva veda
and 18 upanishadas.
 The Srutis are believed to be the
ultimate source of law, in the sense of
rules of human conduct, they are
mostly religious in character.

2. Smriti  Smriti literally means that which was

remembered.
 It also refer to the utterance and
precepts of the Almighty, which have
been heard and remembered
respectively by the Rishis(sages) from
generation to generation.
 The earliest one seems to be Manu
Smriti. The principal of Smritis are
those of Manu, Yajnavalkya and
Narada.

3. Commentaries on the  Nibhandhas are the interpretations put

Smritis (Nibandhans) on the Smritis by various Commen-
tators. The Commentators interpret the
law as laid down in Smriti by
introducing modifications in order to
bring it into harmony with the current
usages.
4. Customs & Usages  Most of the Hindu law is based on customs
and practices followed by the people all
across the country. Even smritis have given
importance to customs. They have held
Family Law II - Notes by Prof. Priyanka Chavan

customs as transcendent law and have

advised the Kings to give decisions
based on customs after due religious
consideration.
 There are four types of customs:
Local Custom: These are the customs
that are followed in a given geographical
area.
Family Custom: these are the customs
that followed by a family from a long
time. These are applicable to family
where they live.
Class or Caste Custom: These are the
customs that are followed by a
particular caste or community. It is
binding on the members of that
community or caste. By far, this is one
of the most important source of law.
Guild Custom: These are the customs
that are followed by traders.

REQUIREMENTS FOR A VALID

CUSTOM
 Ancient
 Continuous
 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.

Under the codified law, the expressions

“custom” and “usage” are defined to signify the
rule which, having been continuously and
uniformly observed for a long time, which has
obtained the force of law among Hindus in local
area, tribe, community, group or family.
However, such custom or usage should be:
(i) Not unreasonable
(ii) Not opposed to public policy
Moreover, in the case of a rule applicable only
to a family, it should not have been
discontinued by that family.
 Family Law II - Notes by Prof. Priyanka Chavan

Sr. B) Modern
No. Sources
1. Judicial Decision 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.

2. Justice, equity & Equity means fairness in dealing. Modern judicial

Conscience 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’.

3. Legislation In modern society, this is the only way to bring in new laws.
The parliament, in accordance with the needs of the
society, constitutes new laws.
The process of legislation is continuous one. Thus,
several amendments have been made for instance,
amendment passed in 1976, which has radically
modified the Hindu Marriage Act, by introducing the
concept of divorce by mutual consent in the Hindu
matrimonial law and also recent landmark amendment
of the Hindu Succession Act, 2005, which conferred
equal rights on a daughter in coparcenary property.
 Family Law II - Notes by Prof. Priyanka Chavan

SCHOOL OF HINDU LAW

Mitakshara School of Law Dayabhaga School of Law

Mitakshara School Dayabhaga School

History Mitakshara is “a concise of work”. Yagna Valkya Smrti was
Yagna Valkya Smriti was commented by
commented on by Vigneshwara(a Jimutavahan (a eminent
great thinker and a law maker from judge and a Minister of a
Gulbarga, Karnataka) under the title King of Bengal).
name “Mitakshara”

Mitakshara School prevails in all

part of India, except Bengal. Dayabhaga School prevails
only in Bengal.

It is based on the principal of

propinquity. i.e. the nearest blood It is based on the principle
relation will get the property. of spiritual benefit which
arises by pinda offering i.e.
by offering rice ball to
deceased ancestor or
Sapinda – when two
persons offer panda to the
same ancestor, they are
Sapindas to each other.

Sub-divisions (a) Banaras School – which Dayabhaga is not divided

prevails in North & North- into any sub-divisions.
west.
(b) Mithila School – Bihar.
(c) Dravida or Madras School
– South.
(d) Maharashtra or Bombay
School – West.
Rule of A son (legal heir) immediately after A son (legal heirs) has no
inheritance birth gets a right to the property. ownership right by birth
but acquires it on the
demise of the father.

 The Mitakshara and the Dayabhaga Schools differed on important issues as

regards to the rule of inheritance. the new codified law i.e. Hindu Succession
Act, 1956 dissolved the difference between the two Schools of Law
 The Amendment of 2005 of the Hindu Succession Act established the
gender inequality which existed prior to the said amendment.
 Family Law II - Notes by Prof. Priyanka Chavan

Difference between Mitakshara & Dayabhaga Schools as regards to

Joint Hindu family, Coparceners/co-owners, shares of co-
owners/coparceners, partition, Survivorship & rights of widow.

Mitakshara School Dayabhaga School

Joint Hindu Mitakshara School refers A son(s) has no
family (a family only to male members of automatic ownership
system of closed the family & extends to rights by birth but
blood include his son, grandson, acquires it on the death
relationships great grandson who are of his father.
consisting collectively called co-
members of 3 to owners/coparcerners in
4 generations and the Joint family.
their source of
income is arising
out the family
business) Father’s power over the Father has overall and
property is qualified by uncontrolled power over
the equal rights by the the family property till
birth enjoyed by his son, death.
grandsons, great-
grandsons. An adult son
can demand partition
during his father’s
lifetime or three
immediate ancestors.

Co- Joint family enjoys If the father is alive the

parcerners/Co- coparcerners rights during son(s) have no co-
ownership his father lifetime. parcerner/co-ownership
rights.

Shares of the Share of Co- Share of each Co-

Co- parceners/Co-owners is parceners/Co-owners is
parceners/Co- not defined and cannot be defined and can be
owners. disposed off. disposed off.

Partition: the Partition can be There has to be physical

true test of demanded either by the separation of the
partition of Co-parceners/Co-owners property into specific
property, or the Karta can portions(after death the
;according to voluntarily specify the death of the ) and
Hindu Law, is shares of the Co- assigning separate share
the intention of parceners/Co-owners and to each coparceners after
 Family Law II - Notes by Prof. Priyanka Chavan

members of the separate the status or the death of the father.

family to interest and moreover he
became separate can does the actual
owners; division of property in
accordance with the
shares by metes and
bounds.
Survivorship The brothers who have Dayabhaga school of
inherited property from law does not specify any
their father have a right of right of survivorship.
survivorship. Brothers hold equal
share upon the death of
the father(unless some
share specified by father
when he was alive) and
also have powers to
alienation.

Rights of widow The widow can only have When one of the
right to maintenance as brothers dies, his widow
her rights are excluded can succeed to his share
upon the death of her of her husband.
husband.

Mitakshara School of Law

Father (Grandfather of A, B, Y & Z)
(Karta) (100% share) (Absolute owner)

Son1 (Father)(50%) Son2 (Father) (50%)

A(25%) B(25%) Y(25%) Z(25%)

Dayabhaga School of Law

Father (100%) (Absolute owner)

Son1 (Equal share) (50%) Son2 (Equal share) (50%)

Family Law II - Notes by Prof. Priyanka Chavan