Professional Documents
Culture Documents
Hindu law is a personal law. So, Hindu law should define ‘who is a Hindu’, and upon
whom the Hindu law applies.
· Any person who domiciled in India, who is not a Muslim, Christian, Persi or Jew
by religion
iv) Converted- The law was that the conversion was not accepted. But later it was
accepted but the converted person was given the lowest caste. All Hindu laws will be
applicable upon him except the succession.
Requirement of conversion- (i) Unequivocal conduct, (ii) Bona fide intention, (iii) No
ceremony is required and (iv) His motive is not important (Raman Nadar v. Snehapoo).
Abraham v. Abraham- Those who convert to Islam and other castes are not subject to
Hindu Law.
It is a doctrine of Hindu law, which was originally enunciated by the author of the
Dayabhaga, and also recognized by the followers of the Mitakshara, that ‘a fact cannot
be altered by a hundred texts’. The text referred to are directory texts, as opposed to
mandatory texts. The maxim, therefore, means that if a fact is accomplished, i.e., if an
act is done and finally completed, although it may contravene a hundred directory texts,
the fact will nevertheless stand, and the act done will be deemed to be legal and
binding.
This doctrine came from Roman maxim ‘factum valet quod fieri non debuit’ which
literally means that ‘what ought not to be done become valid when done’.
Founder of Mitakshara School Vijaneshwar said, ‘sources are the means of knowing
law’.
Hindu law is based on tradition and analytical in nature. Law is part of Dharma. So the
sources of Dharma are the sources of Hindu law. But in a secular point of view- it is a
man-made institution of control.
i) Legislation
· The Vedas
· The Smritis
· The Puranas
v) Precedents
These laws are applicable as long as they are consistent to the Constitution.
Krishna Sing v. Mathura Ahir- The ban which was upon the Sudras is abrogated,
because it is inconsistent with the Fundamental Rights of the Constitution.
i) Legislation-
ii) Dharmashastra-
The term ‘Shastra’ came from ‘shas’ which means ‘to teach’. Dharmashastra means
‘teacher of dharma’. It has two meanings-
i) Barna Dharma – It is Dharma of the castes. It provides the laws applicable to
different castes.
ii) Ashrama Dharma – It means four stages of life: (a) Brahmacharya (b) Grihastha
(c) Banaprashta (d) Sanyas.
iii) Barnashrama Dharma – It is the combination of the first two Dharmas.
vi) Sadharana Dharma – which is proper Dharma for a person in ordinary situation.
Vedas- Synonym to Vedas is ‘Shruti’. ‘Shru’ means to hear. Hindus believe that the
Vedas are heard from God and written. There are four Vedas- (a) Rig Veda (b) Yajur
Veda (c) Sham Veda (d) Atharva Veda.
i) Sanhita
Smriti- Derived from ‘Smri’ which means ‘to remember’. People remembered from
the words of the sages, it is not from the God directly.
i) Achar – Morality
ii) Vyavahar – Rules that the king or judge used to apply in settling disputes in the
administration of justice.
iii) Prayaschit – Penal provisions for commission of a wrong. There are both
substantive and procedural laws. It has 2 elements- (a) An inner intention to reform
oneself, (b) A readiness for punishment for committing an offence.
If there is conflict between 2 Smritis, there is difference in opinion. According to
Brihaspati, Manu is above all Smritis. According to some, one has to choose among
to conflicting Smritis. According to others, the more logical one will be accepted.
i) Creation
iii) Dynasty
iv) Manavantar
Custom is one of the most important sources of Hindu Law. Where there is a conflict
between a custom and the text of the Smritis, such custom will override the text.
(a) Local customs- are confined to a particular locality like a district, town or village.
(b) Class customs – are the customs of a caste or a sect of the community or the
followers of a particular profession or occupation.
(c) Family customs – are confined to a particular family only, and do not apply to those
who are not members of such family.
Essentials of valid custom-
iii) Reasonableness – It should be in accordance with rules of justice, equity and good
conscience.
Commentary is the interpretation of the Smritis by the scholars. It also includes the
customs and usages which the commentators found prevailing around them. Despite
the fact such commentators have modified the original texts in order to bring them in
line with the local customs and conditions, the commentaries are now considered to be
more authoritative than the original texts themselves.
These commentaries gave rise to different schools known as the Mitakshara and
Dayabhaga.
i) They have tried to make the subject simple and easy to understand.
iv) They have included custom and usages prevailing during their time
v) Commentary and digests kept law abreast of life.
A lot of commentaries have been made on Manusmriti. These are called Manu Tika.
Commentaries were started to be written down from 4-5 century and digests were from
12 century.
Atmaram v. Bajirao – If Commentary and digest conflict with Smriti or Purana,
Commentary and digest shall prevail.
v) Precedent
School means rules and principles of Hindu Law which are divided into opinion. It is not
codified. There are two Schools of Hindu Law- (a) Mitakshara (b) Dayabhaga.
The Mitakshara and Dayabhaga Schools differed on important issues as regards the
rules of inheritance. However, this branch of the law is now codified by the Hindu
Succession Act, 1956, which has dissolved the differences between the two. Today, the
main difference between them is on joint family system.
Dayabhaga- Property is of two types- (a) Joint, (b) Separate. The descendants inherits
the property whatever type it is.
Mitakshara- In default of close heir, brother and immediate survivors inherit, the wife
does not inherit.
Dayabhaga- If coparcener dies, his widow will get the property in default of a close heir
but she cannot alienate.
Mitakshara- The order of heirs is decided by mereness of blood.
Effect of migration
A person follows the school of his area. But if he migrates to another place, he will
follow the School of that locality. This has been decided in various cases-
Gope v. Manjura Govalin- The burden of proving migration lies on him who pleads it.
The original place of a family can be inferred from the chief characteristics of that family.
Moolchand v. Mrs. Amrita Bai- A person migrates will all of his personal laws.
Personal law unlike local law moves with whom he covers.
Notraz v. Subba Raya- A person can be given an option to give up the law of the old
place and adopt the new one.
Hindu Marriage
Hindu marriage is a religious sacrament. Unlike Islami law, it is not contract. Hindu
philosophers treated Hindu marriage as a part of Achar (custom) but not a part of law
(vyavahar). It is an act by performance of which a thing becomes fit for a certain
purpose. These purposes are-
i) Performance of sacrifice
ii) Pleasure and procreation of children (Children save their fathers from hell-fire)
Forms of marriage-
There are 8 forms of marriage, 4 of them are approved and 4 of them are not approved.
Only 2 forms are available now- Brahma and Asura. Brahma form is approved by law.
To marry in the same caste was not approved; because a Hindu believed that people of
the same caste are Agnate (Agnate means where there is no female intervention, i.e.
Uncle etc.) Marrying daughter of Agnate was not allowed. Females of same caste were
considered to be the daughters of Agnates.
i) Anulom – Marriage between male of a higher caste and female of a lower caste. It is
valid.
ii) Protilom – Marriage between male of a lower caste and female of a higher caste. It
is invalid.
Guardianship in marriage-
List of guardians-
Mitakshara school-
i) Father
iii) Brother
v) Mother
Dayabhaga school-
i) Father
iii) Brother
v) Mother
viii) Mother
Polygamy is allowed in Hindu law but Polyandry (polygamy in which a woman has more
than one husband) is not allowed. Some states of India prohibit polygamy.
Marriage is indissoluble. Divorce is not allowed at all.
According to Manu- It is not allowed because 2nd husband of a pious lady is not to be
found anywhere.
i) Husband is unheard of
iv) Impotent
v) Out caste