Introduction of Hindu Law
This world has a population of 8 billion, out of which 1.38 billion people live in India presently. India is a secular State where many religions like Hindu, Muslim, Sikh, Christian and Parsi live together. In this country two types of laws are there:
(i) General law
(ii) Personal law
General law includes the IPC, Constitutional law, Indian Contract Act and many more. And the Personal law includes Hindu law, Muslim law and many more. We will discuss the Hindu Law in this article.
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 becomes 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 been also existing since 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 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 of 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 are a group of people called the Satsangi who were managing the temple and they restricted non-Satsangi Harijans to enter 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 are 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 if converted to Hinduism, Buddhism, Jainism or Sikhism can be called as a Hindu.
- From the case of Perumal vs poonuswami, 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.
To whom Hindu Law does not apply?
- To an illegitimate child whose father is a Hindu and mother is Christian and the child is brought up as a Christian. Or also, the illegitimate child of a Hindu father and a Mohammedan mother, because these children are not Hindus either by birth or by religion.
- To the Hindus who are converted to Muslims, Christians, Parsi or Jews.
- To the Hindus who don’t follow the principles of Sastra.
Sources of Hindu Law
Hinduism is one of the oldest religions in the world; the Indian civilization is one of the oldest civilizations.
• Hindu law is said to be of divine origin. One theory suggests that it is derived from Vedas while Western jurists believe that Hindu law is based on ancient custom and usages. According to our Dharmshastras Hindu law is sacrosanct, inviolable and immutable.
• According to Mayne Hindu law is the law of Smritis as expounded in the commentaries and dig which are modified and supplemented by customs.
• “Hindu law has the oldest pedigree of any known system of jurisprudence, and even now it shows no sign of decrepitude.”- Henry Mayne.
• Hinduism in the ancient period did not differentiate between religion, law and morality.
They were all the same back then which was called ‘Dharma’ at that time
✓ Shruti (basically the Vedas)
✓ Smriti (which means the memorized word)
✓ Sadachara-which means the standards of morality and justice.
Modern Hindu Law
The codified law and uncodified law are two types of Modern Hindu Law. Codified law administers every Hindu. The concepts of schools of Hindu Law do not exist in codified law, however, they exist in uncodified Hindu Law. Vedas and Smritis were the form of sources in which, many scholars all around India, wrote the commentaries which formed the basis for schools of Hindu Law.
There is a two-fold classification of the sources of the Hindu law
1. Ancient sources – Shruti, Smriti, Digest & Commentaries, Custom & Usage
2. Modern sources – Equity Justice and Good Conscience, Precedents, Legislation
Ancient Source
1. Shrutis (Shruti means ‘to hear’)
The term ‘shruti’ is derived from the word ‘shru’ which means ‘to hear’. It is considered to be the primary and paramount source of Hindu Law. It is believed that words of deity were revealed to sages. Shruti’s are the sacred pure utterance that has been enshrined in the Vedas and the Upanishads. No written material was available at that time so the primary way to communicate the knowledge was through sources of Hindu Law Shrutis Smritis Commentaries And Digest Judicial decisions Legislation Justice, equity and good conscience Custom orally by sages to their families and disciples which supplemented it and carried it forward.
• Shrutis are made up of 4 Vedas. 1. Rigveda 2. Yajurveda 3. Samaveda 4. Atharveda • Originally there were only the first three vedas and Atharveda was added later. Rigveda is considered a tree of which the offshoots are Yajurveda and Samaveda.
• Vedas described Hindu Society as made up of patriarchal families. Each family was considered a unit of which the head was the oldest living ascendant called ‘Grihapati’
2. Smritis (which is remembered)
Smriti refers to ‘ what is remembered’ The second source of Hindu Law is a body of texts that can be attributed to an author, unlike Shrutis which are authorless because they were transmitted and supplemented solely through generations.
There is a further classification of the term Smrities which is as follows
1) Dharma Sutra (Prose)
2) Dharmashastras (Poetry).
• There are many smritis but the well-known Smritis are
✓ Manu Smriti- the oldest Smriti written by ‘Manu’ but was supplemented further by generations because writing was not invented and it was transmitted orally. Manu Smriti gave Brahmins an eminent position in society and there were not any rights for women or shudras.
✓ Yajnavalikya Smriti- written between the period of Buddha and Vikramaditya. It was more systematically arranged and more concise than Manu Smriti and it also was more liberal than Manu Smriti, It recognized some rights for women in regard to inherit and hold property and also gave a better status to Shudras than Manusmriti.
✓ Naradas Smriti- This smriti was much moreprogressive than Yajnavalkya and manu because this Smriti recognized widow’s remarriage, a woman holding property etc also postulated that king-made law is higher than what is provided in Smriti’s. This Smriti also laid down rules regarding pleadings and evidence of witnesses which was not mentioned at all in the previous smritis.
3. Commentaries and Digests
After Shrutis came the era of commentators and digests. Commentaries (Tika or Bhashya) and Digests (Nibandhs) covered a period of more than a thousand years from the 7th century to 1800 A.D. In the first part of the period, most of the commentaries were written on the Smritis as it contains law.
• But the problem is the Smritis have conflicting tests, for example, Manu smriti doesn’t give rights to women and Shudras at all but Yajnavalkya smriti and Narada Smriti do provide rights of varying degrees to both these communities. So in the later period, the works were in the nature of digests containing a synthesis of the various Smritis and explaining and reconciling the various contradictions.
• The evolution of the different schools of Hindu law has been possible on account of the different commentaries that were written by various authorities • Dayabhaga and Mitakshara are considered to be the two most important commentaries and digests.
4. Custom
Customs is a tradition that has been practised in society since ancient times. It is the type of practice which is under the continuous observation of the people and has been followed by the people.
• From the earliest period custom (‘achara’) is regarded as the highest ‘dharma’. As defined by the Judicial Committee custom signifies a rule which in a particular family or in a particular class or district has from long usage obtained the force of law. Custom is a principal source and its position is next to the Shrutis and Smritis but usage of custom prevails over the Smritis. It is superior to written law. There are certain characteristics that need to be fulfilled to declare the custom to be a valid one.
• Custom to be law must be ancient, reasonable, certain, uniform, obligatory and observed continuously without interruption and should not be immoral or opposed to public policy or written rule of law or a statute unless and until it is expressly saved by the statute and should be construed strictly.
Essentials of a custom
✓ A custom 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. Bhagwant Buva 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 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 Source
- Judicial Decisions
Judicial decisions are considered to be the most important ingredient of modern sources. A judicial decision is considered to be authoritative and binding.
Under the British regime the courts solved disputes by applying the Smriti law from the commentaries and digests and also adding their own interpretation and understanding of the law.
The doctrine of precedent was established and it was applied in the cases resembling the same facts and circumstances of a case already decided. So judicial precedents also got the same standing as law with time along with religious texts like shrutis and smritis.
2. . Legislations
Legislation is an important source of Hindu law. They have largely reformed, altered and supplemented the old Hindu law. They have also tried to bring uniformity throughout the country in the application and practice of Hindu law. • But the earlier legislations were made carefully so that they do not go against the established rules of Hindu Law. Most legislation in the starting period were reformative or were made to fill in on things that were not covered under the prevailing law.
✓ The Caste Disabilities Removal Act, 1850- To protect rights over the property of a person who has converted his religion or has been expelled from the caste or community
✓ The Hindu Widows Remarriage Act, 1856- To give Hindu Widows a right to remarry.
✓ The Hindu Wills Act, 1870- Hindus did not have any law that allowed them to make a will, this filled the gap.
✓ The Special Marriage Act, 1872- To allow inter-religious, inter-caste or intra-caste marriages.
• Modern Legislations • In 1944 a Hindu law Committee was made under the Chairmanship of Sir Benegal Narsing Rau.
• The purpose of the committee was to make a uniform code for Hindus and bring all Hindus under this code. A draft code was made in 1948. But Hindus did not agree, they said this new code would be an attack on their ‘sacred law’ Jawaharlal Nehru decided to drop this idea; Ambedkar didn’t like dropping this idea so he resigned in 1951 as a protest.
The Code was anyway later implemented in 4 parts.
✓ Hindu Marriage Act, 1955
✓ Hindu Succession Act, 1956
✓ Hindu Minority and Guardianship Act, 1956
✓ Hindu Adoptions and Maintenance Act, 1956
• These acts modernized the law applicable to Hindus by retaining the fundamental framework and by reforming the framework to a certain degree where needed.
3. . Rules of Equity, Justice and Good Conscience.
Equity, justice and good conscience is regarded as an important source of law. In case of conflict between two sources or in case of conflict between rules of Smritis and Commentaries the conflict is resolved by application of principles of equity, justice and good conscience.
• No law can be exhaustive and Equity, Justice and Good conscience are required for and law to be reasonably interpreted or created.
• The concept of ‘Dharma’ includes ‘Nyaya’ (Justice) and ‘Yukti’ (Equity)
• In Gurunath v Kamlabai 1951 the Supreme Court held that in the absence of any existing law, the rule of justice equity and good conscience was applied.
• Kanchava v. Girimalappa (1924) 51 IA 368 • In the instant case, the Privy Council barred the murderer from inheriting the property of the victim.
Schools of Hindu Law
Introduction
- The author Mr. Colebrooke coined the term “Schools of Law” to refer to different legal opinions prevalent in various parts of India.
- School means rules and principles of Hindu Law which are divided into opinion and are not codified.
- He noticed that the rules of Hindu Law vary from place to place and lack uniformity.
- For the purpose of identifying this variance, the thesis of the School of Hindu Law has been propounded.
Emergence of Schools of Hindu Law
- Originally, there were no schools of Hindujurisprudence. Due to the emergence of various commentaries on Shruti and Smriti, different schools of thought arose.
- Shruti means which has been heard. The shrutis include the four Vedas – Rig, Yajur, Sam, and Athrava along with their brahmanas. Vedas primarily contain theories about sacrifices, rituals, and customs.
- Smriti means what is remembered. It includes those works which are created by the virtue of memory of sages and are further divided into Dharmashastras and Dharmasutras.
- The commentary in one part of the country varied from the commentary in the other parts of the country.
- In Rutcheputty v. Rajendra (1839), the privy council observed that different schools of Hindu law have originated because of different local customs prevailing in different parts of India.
Existence of Schools of Hindu Law
- In the codified area of Hindu Law, there is no scope for existence of Schools as the codified Hindu Law lays down uniform law for all Hindus.
- The Schools of Hindu Law have relevance only in respect of the uncodified areas of Hindu Law.
Schools of Hindu Law
There are two main schools of Hindu Law:
- Mitakshara School
- Dayabhaga School
Mitakshara School
- The Yagnavalkya Smriti was commented on by Vijnaneshwara under the title Mitakshara.
- The followers of Mitakshara are grouped together under the Mitakshara School.
- The Mitakshara is not only a commentary on the Smriti of Yajnavalkya but it is also a digest of practically all the leading Smritis of Hindu Law.
- The provisions of this School are applicable throughout India except in the State of Bengal and Assam.
Features of Mitakshara School
- Mitakshara School is based on the principle of the joint family system where ancestral property is passed on from generation to generation, and each member of the family has a right to a share in the property.
- It also recognizes the concept of survivorship, where the share of a deceased coparcener automatically passes on to the surviving coparceners.
- One of the unique features of Mitakshara School is that the coparcener male child (four generations from a common ancestor) acquires right in family property by mere birth.
- A woman could never become a coparcener. But the Hindu Succession (Amendment) Act, 2005 empowered women to become a coparcener like a male in ancestral property.
Sub – Schools Under the Mitakshara School
- There are four Sub-Schools under the Mitakshara School which are as follows:
- Madras School or Dravidian School of thought
- Maharashtra School or Bombay School of thought
- Benaras School of thought
- Mithila School of thought
Madras School or Dravidian School of Thought
- It exists in South India.
- The main authority accepted by this school is Smriti Chandrika authored by Devananda Bhatta.
- In the case of adoption by a widow it has a peculiar custom that the consent of the sapindas was necessary for a valid adoption.
- Two individuals are considered sapindas of each other if they have a common ancestor within the preceding three generations.
- In other words, if they share a common bloodline within three generations, they are considered sapindas.
Maharashtra School or Bombay School of Thought
- It exists in Bombay (Mumbai) and Gujarat.
- The main authority accepted by this school is Vyavahra Mayukha authored by Nilakantha.
- This school has got an entire work of religious and Civil laws.
Benaras School of Thought
- It extends of whole of northern India except in Punjab where its authority is modified by customary law in rural areas.
- The main authority accepted by this school is Viramitrodaya authored by Mitra Mishra.
Mithila School of Thought
- It exists in Tirhut, North Bihar and Uttar Pradesh near the Yamuna River areas.
- The main authority accepted by this school is Vivad Chintamani authored by Vachaspati Mishra and Vivad Ratnakara authored by Chandeshwar Thakur.
Dayabhaga School
- The Yagnavalkya Smriti and some other Smritis are commented on by Jimutavahana under the title Dayabhaga.
- It exists in Bengal and Assam only.
- It has no sub-school.
Features of Dayabhaga School
- 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.
- Each brother has ownership over a definite fraction of the joint family property and so can transfer his share.
- On the death of the husband the widow becomes a coparcener with other brothers of the husband. She can enforce partition of her share.
Difference between Mitakshara and Dayabhaga School
| Mitakshara School | Dayabhaga school |
| Under this school the right to ancestral property arises by birth. The son becomes the co-owner of the property sharing similar rights as of fathers. | Under this school the right to ancestral property is only given after the death of the last owner. It does not recognise the birth right of any individual over ancestral property. |
| The father does not possess the absolute right to alienate the property. | The father has the absolute right of alienation of the ancestral property as he is the sole owner of that property during his lifetime. |
| The son attains the right to become the co-owner of the property and he can ask for the partition of the ancestral property even against the father and can demand for his share. | The son has no right to ask for the partition of ancestral property against his father. |
| Under this school the survivorship rule is prevalent. In case of the death of any member in the joint family, his interest shall pass to other members of the family. | While in case of Dayabhaga school the interest of the member on their death shall pass on to their heirs like widow, son, daughters. |
| The members can’t dispose of their share of property. | The members of the family enjoy the absolute right to dispose of their property. |
| The rule of blood relationship or consanguinity is followed in case of inheritance. | Inheritance is governed by the rule of the offering of pinda. |