Introduction to Hindu Law

Introduction

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.

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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?

1. 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.
2. To the Hindus who are converted to Muslims, Christians, Parsi or Jews.
3. To the Hindus who don’t follow the principles of Sastra.

Enactments through which Hindu Law is applied

Hindu Marriage Act, 1955

The Hindu Marriage Act, 1955 came into force to secure the rights of marriage for the wife and husband who are Hindu and they are bound under the religious bond of marriage under any ceremony. As there are many ways that a man and a woman can conduct this religious act, so this law does not define kinds of the ceremony to be carried out. After marriage, the registration process should be conducted properly and if any problem occurs between the parties and they want a divorce, they can carry out the divorce proceedings and also if they want to get remarried after divorce then the process for the same can be understood by this act.

This act is only applicable for any person who is Hindu, Jain, Sikh and Buddhists and not for particularly Muslims, Christians, Parsis and Jews who are being governed by some other law. This law is only applicable for the person who is a Hindu by birth or Hindu by religion. Section 2 of the Hindu Marriage Act, 1955 describes all these things.

Important components of the Hindu Marriage Act, 1955

Section 5 of the Hindu Marriage Act, 1955

This Act mentions some grounds that should be followed for the marriage, including:

• No party should have a spouse living before or at the time of marriage.
• None of the party should be suffering from any mental disorder or should be unfit for the marriage and procreation of children or no party should be subjected to recurrent attacks of insanity and also during the time of the consent for marriage no party should be unsound of mind.
• The bridegroom should be of age 21 and the bride of 18 for marriage.
• If the party is within a degree of prohibited relationship, it can be considered as void.
• For marrying the parties shouldn’t be sapindas of each other, unless any customs or usage allows for them to marry.

If all these grounds are followed then we can consider the marriage as a ‘valid marriage.’

If the above grounds aren’t fulfilled then the marriage can be defined as ‘void or voidable marriage‘.

Grounds of void marriage:

• No party should have a spouse living at the time of marriage. It is also known as bigamy.
• No party should be within a degree of prohibited relationship.
• The party should not be the sapindas of each other.

Grounds of Voidable marriage:

• If the marriage happens without the consent of the bride or the bridegroom or any force or fraud.
• If a party is suffering from any kind of mental disorders which makes him/her unfit for the procreation of children.
• If the bride is pregnant by another man other then the bridegroom.
• If any of the party is subjected to recurrent attacks of insanity.
• If any of the party is under aged such as the bridegroom is below 21 years and the bride is below 18 years.
• If one of the parties is unsound of mind during the time of consent for marriage.

Section 3 of the Hindu Marriage Act, 1955 

This section withdraws the restricted degree of relationships as given in Smriti and replaced with a new restricted degree of relationships. For e.g. A person can’t marry the wife of his brother. But, this provision will not be applied in the case of divorce and widow women.

Section 8 of the Hindu Marriage Act, 1955

This Section states the provisions of registration of the marriage. Some provisions are:

• A marriage can’t be registered if a ceremony hasn’t been performed.
• A marriage can’t be registered if the two parties are not living together as husband and wife.
• Both the parties must submit an application to the marriage officer of the district for the registration within 30 days of the ceremony of the marriage.
• The Hindu Marriage Act has allowed the State Government to make the rules for the registration process particularly for the State only.
• Registration is the written proof of the marriage.