Q) state and explain in brief the sources of hindu law?

Introduction
India is a country that comprises of people following different religions. It is obvious that when it comes to governing
them, religious beliefs of the people cannot be ignored, but the question is what all things should be considered as
law and what not, not only this which all sources should be looked upon while framing laws in order to govern
people of different religions. The two major religions in India are Islam and Hinduism. Apart from that, there is a
considerable amount of population comprising of Sikhs, Buddhists, Jains, and Christian. Therefore it is necessary to
examine all the sources which are looked upon before framing laws affecting the lives of people especially their
personal matters like divorce, marriages, inheritances, etc.

Hindu Law
Hindu law is nothing but the concept of dharma, the concept of dharma in Hindu law is not defined precisely but it
has come to mean the way of life a person lives and enjoys, which includes every aspect of his life. Right from the
birth till the death of a person everything is included and governed by dharma. In other words, dharma is sometimes
said to be the guiding force for all the Hindus. It contains rules regarding the proper conduct of people, it preaches
love for everyone and contains the duties that every individual has towards the society as a whole. Dharma also was
the major law which the kings of ancient times, especially the Hindu kings used to govern the people. All the laws
which were passed had to be in conformity with the dharma, in simple terms the king was not above dharma and
had to rule according to dharma.

Shruti as a source of law

Shruti means to hear, it is derived from the word “shur” which means to hear. Shrutis are considered to be the major
source of Hindu law. Another term for Shruti is Veda. according to Hindu law, there are four Vedas namely, Rigveda,
Samveda, Yajurveda, Atharveda. The brahmins used to pronounce what is written in these Vedas to the people.
Since brahmins were considered to be knowledgeable people whatever they said was of supreme importance and it
was considered to be the law of the land, therefore shrutis contain what is written and pronounced by the brahmins.
Brahmins also tell us about the duties that the individual has to follow and how to perform these duties. The
Upanishads contain the essence of these duties.

Smriti as a source of law

Smriti is derived from “smri” which means to remember. Smrtis are those parts of shrutis
which the sages forgot to tell in their original form and therefore wrote down in the language
which they were familiar with, therefore shrutis are considered to be the basis of smritis.
There are 2 kinds of smritis first is Dharmasastras and the other is Dharmasutras.
Dharmasastras contains the rules regarding the moral code of conduct for Hindus, whereas
Dharmasutras contains the rules regarding government, caste, the relationship between
people, economic affairs, eating habits, etc. There are many smritis that one can not count
but the two famous smritis are Yajnavalkya smriti and manusmriti. Manusmriti is also
considered to the first law book written by Manu.

Q) explain the schools of hindu law. and explain difference between them?

Hindu Law is the most ancient law in the world. Originally Hindu Law was created to satisfy every need and
welfare of the people. The sources of the concept for Hindu Law are Shruti (words of God), Smriti (text),
customs (old practices), commentaries and digests.

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 does not exist in codified law, however, it exists 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.

With the development of the Smriti came the disparity in opinion amongst commentators and interpreters.
There was no authoritative position of law, although various codes were developed. An authority could be
accepted in one part of India and totally rejected in other parts of India. Persons who accepted one
authority were likely not to accept other authorities. Thus, different schools of thought emerged.
The two major schools of Hindu law are as follows:

 Mitakshara
 Daya Bhaga

Mitakshara and Dayabhaga are the two important schools of Hindu Law which have given us the required
information about the present legislated laws.
Mitakshara School:
Mitakshara is one of the most important schools of Hindu law. It is a running commentary of the Smriti written by
Yajnvalkya. This school is applicable in the whole part of India except in West Bengal and Assam.

The Mitakshara has a very wide jurisdiction. However different parts of the country practice law differently because
of the different customary rules followed by them.

Mitakshara is further divided into five sub-schools namely as following:

 Benaras Hindu law school
 Mithila law school.
 Maharashtra law school.
 Punjab law school.
 Dravida or Madras law school.

These law schools come under the ambit of Mitakshara law school. They enjoy the same fundamental principle but
gives preference to certain treaties and commentaries which control the certain passage of Mitakshara.
Dayabhaga School:
Dayabhaga school predominantly prevailed in Assam and West Bengal. This is also one of the most important
schools of Hindu laws. It is considered to be a digest for the leading smritis. Its primary focus was to deal with
partition, inheritance and joint family. According to Kane, it was incorporated in between 1090-1130 A.D.

Dayabhaga school was formulated with a view to eradicating all the other absurd and artificial principles of
inheritance. The immediate benefit of this new digest is that it tends to remove all the shortcomings and limitations
of the previously established principles and inclusion of many cognates in the list of heirs, which was restricted by
the Mitakshara school.

In Dayabhaga school, various other commentaries were followed such as:

 Dayatatya
 Dayakram-sangrah
 Virmitrodaya
 Dattaka Chandrika

Q) concept of dharma?

Dharma

Dharma is an important term in Indian religions. In Hinduism it means 'duty', 'virtue',

'morality', even 'religion' and it refers to the power which upholds the universe and society.
Hindus generally believe that dharma was revealed in the Vedas although a more common
word there for 'universal law' or 'righteousness' is rita. Dharma is the power that maintains
society, it makes the grass grow, the sun shine, and makes us moral people or rather gives
humans the opportunity to act virtuously.

But acting virtuously does not mean precisely the same for everyone; different people have
different obligations and duties according to their age, gender, and social position. Dharma is
universal but it is also particular and operates within concrete circumstances. Each person
therefore has their own dharma known as sva-dharma. What is correct for a woman might
not be for a man or what is correct for an adult might not be for a child.

The importance of sva-dharma is illustrated well by the Bhagavad Gita. This text, set before
the great battle of the Mahabharata, depicts the hero Arjuna riding in his chariot driven by his
charioteer Krishna between the great armies. The warrior Arjuna questions Krishna about
why he should fight in the battle. Surely, he asks, killing one's relatives and teachers is wrong
and so he refuses to fight.

Krishna assures him that this particular battle is righteous and he must fight as his duty or
dharma as a warrior. Arjuna's sva-dharma was to fight in the battle because he was a
warrior, but he must fight with detachment from the results of his actions and within the rules
of the warriors' dharma. Indeed, not to act according to one's own dharma is wrong and
called adharma.

Correct action in accordance with dharma is also understood as service to humanity and to
God. The idea of what has become known as sanatana dharma can be traced back to
the puranas - texts of antiquity. Those who adhere to this idea of one's eternal dharma or
constitution, claim that it transcends other mundane dharmas - that it is the para dharma,
the ultimate dharma of the self. It is often associated with bhakti movements, who link an
attitude of eternal service to a personal deity.

Q) right of a coparcener?

As already stated above, coparceners are the four generations including the common ancestor in unbroken
male descent and after the commencement of Hindu Succession (Amendment) Act, 2005, even a daughter
of a coparcener may become a coparcener in her own right in the same manner as the son. The following
are the rights of a coparcener in the coparcenary :—

1.     Right of common possession and common enjoyment : There is community of interest and unity
of possession between all the coparceners. No one is entitled to any special interest in coparcenary
property nor is any one entitled to exclusive possession of any part of it.

2.     Community of interest and right to savings : No coparcener has got a defined share in
coparcenary property or income thereof and as long as family in undivided, he cannot predicate that he has
certain share in the family property. The entire income must be brought to the common purse and used by
all members of undivided family.

3.     Right to joint possession : Each coparcener is entitled to joint possession and enjoyment of the
family property and if he is prevented by other coparcener from doing so, he is entitled to an injunction
restraining that other coparcener from disturbing his possession and enjoyment [Anant v. Gopal, 11 Bom
269].

4.     Right to enforce partition : Every coparcener, whether major or minor, is entitled to call for the
partition of his share against his father, brother or grandfather irrespective of whether the other coparceners
agree to become divided or not.
5.     Right to restrain unauthorized act : A coparcener may restrain any unauthorized act (for example,
erection of wall or building etc.) of other coparceners in respect of coparcenary property if such act
interferes in joint enjoyment and causes substantial injury to the property or rights of other coparceners.

6.     Right to ask for accounts : A coparcener may demand an account of the management of joint
property so that he may know the actual state of family funds when the coparcener is suing for partition. If
such demand is met by refusal, he is entitled to restrain the other coparceners for excluding him from
management thereof.

7.     Right of alienation : A coparcener may alienate his undivided interest in the coparcenary by gift, sale
or mortgage with the consent of other coparceners. However, in Bombay, Madras and Madhya Pradesh, no
such consent is required.

8.     Right to set aside alienations : Every coparcener has a right to set aside alienation made by the
father, manager or any other coparcener beyond his authority which includes alienation without legal
necessity or illegal transactions without any benefit to estate.

9.     Right to maintenance : A coparcener’s wife and children are entitled to be maintained out of the
coparcenary funds and the members of a joint Hindu family are under a legal obligation to maintain all the
members of the joint Hindu family.

10.    Right to renounce his interest : A coparcener according to Madras High Court, can renounce his
interest in the coparcenary property in favour of all or any of the coparceners. However, the Bombay and
Allahabad High Court are of the view that renunciation must be in favour of all the coparceners.

Q) what is hindu marriage? explain the conditions for a valid marriage under hindu marriage act
1955?

marriage, a legally and socially sanctioned union, usually between a man and a woman, that is regulated
by laws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the partners and
accords status to their offspring (if any). The universality of marriage within different societies
and cultures is attributed to the many basic social and personal functions for which it provides structure,
such as sexual gratification and regulation, division of labour between the sexes, economic production
and consumption, and satisfaction of personal needs for affection, status, and companionship. Perhaps its
strongest function concerns procreation, the care of children and their education and socialization, and
regulation of lines of descent. Through the ages, marriages have taken a great number of forms.
(See exchange marriage; group marriage; polyandry; polygamy; tree marriage. See also common-law
marriage.)

The following are the necessary conditions for a valid Hindu Marriage:

1. Monogamy:
Section 5(i) of the Act prohibits polygamy and polyandry. It says that neither party should have a living
spouse at the time of the marriage. Failure of this condition would make the marriage null and void under
section 11 of the Act. Apart from this, the party would be liable for bigamy under sections 494 and 495 of
the Indian Penal Code, 1860 and section 17 of the Hindu Marriage Act, 1955. Schedule Tribes are
exempted from this but they must have an early and lasting custom for this.

The conditions are:

neither party, at the time of marriage:

a. is incapable of giving a valid consent due to his/her unsound mind

b. has been suffering from mental disorder of such a kind or to such an extent as to be unfit for
marriage and the procreation of children
c. has been subjected to recurrent attacks of insanity.

If any of these conditions are not fulfilled then marriage is voidable under section 12(1)(b) of the Act. The
clause of epilepsy was removed through The Marriage Laws (Amendment) Act, 2001. In a case in this
 regard, Allahabad High Court held that the validity of marriage will be nullified only when it is impossible
for one party to remain in the marriage due to the unsoundness of the other party.

2. Age to the parties:

At the time of enactment of the Act, the legal age for the marriage of boy and girl was 18 years and 15
years respectively. However, later on, The Marriage Laws (Amendment) Act, 1976, changed the
minimum age to 21 years and 18 years respectively. According to the ruling in Pinninti Venkataramana
and Anr vs State [AIR 1977 AP 43], breaching of the condition didn�t amount to nullity of the marriage
but it is an offence under section 18(a) of the Act i.e. simple imprisonment up to 15 days or a fine of Rs.
1000/- or both. According to section 10 of The Prohibition of Child Marriage Act, 2006, any person
performing, conducting, directing or abetting a child marriage shall be punished with rigorous
imprisonment up to two years and fine of one lakh rupees.
 
3. Prohibited Degrees of Relationship:
Section 5(iv) of the Act prohibits solemnization of marriage of persons falling within prohibited degree of
relationship. If any marriage is solemnized under this then the marriage would be void under section 11
of the act. Apart from this, violation of this clause would amount to simple imprisonment upto 1 month or
a fine of Rs. 1000/- or both under section 18(b) of the act. Section 3(g) defined persons falling within
prohibited degree of relationship.

They are:

a. If one is a lineal ascendant of the other; or

b. If one was the wife or the husband of a lineal ascendant or descendant of the other; or
c. If one was the wife of the brother or of the father�s or mother�s brother or of the
grandfather�s or grandmother�s brother of the other,
d. If the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and
sister or of two brothers or of two sisters.

Prohibition of Sapinda Relationship:

Section 5(v) of the Act, marriage between the persons having sapinda relationship is prohibited
unless there is a custom which allows them to do so. Any marriage solemnized under this would
be void under section 11 of the Act and violation of this clause would amount to simple
imprisonment up to 1 month or a fine of Rs. 1000/- or both under section 18(b) of the act.

Section 3(f)(ii) of the Act says that Two persons are said to be �sapindas� of each other if one
is a linear ascendant (i.e. is a blood relative in the direct line of descent � the children,
grandchildren, great-grandchildren, etc. of a person) of the other within the limits
of �sapinda� relationship, or if they have a common lineal ascendant who is within the limits of
�sapinda� relationship with reference to each of them.

According to section 3(f)(i) sapinda relationship extends as far as the third generation (inclusive)
in the line of ascent through the mother, and the fifth generation (inclusive) in the line of ascent
through the father, the line being traced upwards in each case from the person concerned, who
is to be counted as the first generation. If there is any common ancestor of 2 persons then both
are sapinda to common ancestor and they would be sapinda of each other.

Q) what is divorce?

Divorce, or "dissolution of marriage," is the legal termination of the marital relationship. The
divorce process is handled by family law attorneys (each estranged spouse retains his or her own
counsel) and involves a number of issues, ranging from division of property to child custody. While
it's important to hire a lawyer who is skilled at your economic and other interests in a divorce, it is
crucial to find an attorney with whom you feel comfortable on a personal level. Divorce is an
intensely emotional process, requiring delicate people skills in addition to legal know-now.

It may make sense to complete a divorce without hiring a lawyer in some limited cases, as long as
neither party has representation and there are no minor children involved (FindLaw sells do-it-
yourself divorce packages). But most divorces, particularly those involving dependent children
and/or complicated property issues, go more favorably with the counsel of a divorce attorney. And
if your estranged spouse has an attorney, it's always wise to hire one yourself

In Ancient times, the concept of divorce was not known to anyone. They considered
marriage as a sacred concept. According to Manu, the husband and wife cannot be
separated from each other, their martial tie cannot be broken. Later the concept of
divorce came in the picture and established as a custom to put the marriage to an end.

According to the Arthashastra, marriage can end if dissolved by mutual consent and
should be unapproved marriage. But Manu does not believe in the concept of the
dissolution. According to Manu the only way to end the marriage is the death of one of
the spouses.

The provision related to the concept of divorce was introduced by the Hindu Marriage Act,
1955. The Hindu Marriage Act defines divorce as a dissolution of the marriage. For the
interest of the society, the marriage or the marital relationship needs to be surrounded
by every safeguard for the cause specified by law. Divorce is permitted only for a grave
reason otherwise given other alternative.

Different Theories of Divorce

Fault Theory
Under this theory, marriage can be ended when one party to the marriage is responsible
or liable for the offence under matrimonial offences done against another spouse. Only
the innocent spouse can seek this remedy. The only drawback of this theory is when both
the spouse are at fault, then no one can seek these remedy of divorce.

Mutual Consent
Under this theory, the marriage can be dissolved by mutual consent. If both the spouse
mutually gives their consents to end the marriage, they can take the divorce. But many
philosophers criticise this theory as this concept is immoral and leads to hasty divorce.

Irretrievable Breakdown
According to this theory, the dissolution of marriage happens due to failure of the
matrimonial relationship. The divorce can be taken by the spouse as a last resort i.e.
when both of them are not able to live together again.

Divorce under Hindu Marriage Act, 1955

In the Hindu Marriage Act, there are some provisions given regarding a valid divorce, i.e.
when the spouse can get divorce or appeal for dissolution of marriage in the court of law.
For the interest of the society, the marriage or the marital relationship needs to be
surrounded by every safeguard for the cause specified by law. Divorce is permitted only
for a grave reason otherwise given other alternative.

The Hindu Marriage Act is based on the fault theory in which any one of the aggrieved
spouses (Section 13(1)) can approach the court of law and seek the remedy of divorce.
Section 13(2) provides the grounds on which only the wife can approach the court of law
and seek the remedy of divorce