Introduction To Family Law Marriage Divo

COURSE
1 - Introduction to Family Law - Marriage, Divorce,

and Guardianship
BLOCK
1 - Introduction to Hindu Law
AUTHOR
Vrinda Maheshwari
Learning Objectives
After you go through this material, you should be able to:
 Identify the classes of people to whom Hindu Law applies
 Trace the history and sources of Hindu Law in India
 Work out when someone is a ‗sapinda‘ and when two

people can be said to have a relationship in a ‗prohibited
degree‘
 Perceive the nature of marriage in Hindu Law
2
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Any unauthorised use or reproduction of this material shall attract all applicable civil and criminal law remedies.
Introduction questions that you may have or will possibly face in your
examinations.
Personal laws are a fascinating area of law. Not only are they
something that every student interacts with on an almost daily
basis, they are also dynamic, diverse, and intricate. The Hindu Law
on marriages, for instance, is completely different from the Muslim
Law, both in its history as well as its practice. Even within Hindu
Law, there is a debate on the application of the law between
different schools of thought and between different judicial decisions.
In this Programme, we will be looking at personal laws as they
relate to marriage, divorce, and guardianship. We will consider
succession and other aspects of personal law in a separate
Programme.
In this introductory Block, we start by defining who may be termed

a ‗Hindu‘ — understanding that is essential for the application of
the Hindu Marriage Act! We will then take a look at the concept of
marriage in Hindu law, and consider some important aspects
relating to it, all the while paying attention to answering any
3
Unit 1: Who are ‘Hindus’?
Under Hindu Law, The Hindu Marriage Act, 1955 governs the law
relating to marriage and divorce. In order to understand whoThe
Hindu Marriage Act, 1955 (―the HM Act‖) applies to, we must
identify the classes of people covered by the term ‗Hindu‘. This can
be problematic, as it is difficult to ascertain the definitive meaning or
scope of Hinduism — and so, there is no fixed criteria to determine
who is a Hindu either.i However, the HM Act assumes that certain
classes of people are ‗Hindus‘ and excludes certain other classes
from the ambit of this term. The following chart lists out the various
categories of people who are considered to be ‗Hindus‘ for the
purpose of the HM Act:
What of the people belonging to the various different sects and

subsects of the Hindu religion, such as the AryaSamajis, the
BrahmoSamajis, and the Swaminarayans? The Supreme Court, in
Shastri v. Muldasii, held that it considers them to be Hindus as well.
People who convert to Hinduism are also Hindus, and in
PerumalNadarv. Poonuswamiiii, it was held that the intention and
4
the conduct of the convert must be considered, along with the confused. For instance, assume you are asked a question:
acceptance of the community. One important case that you must ―Rahman is the son of Ali (a Muslim) and Neha (a Hindu). He has
remember in this regard is Ram Mohandas v. Travancore been raised as a Hindu. Subsequently, when he is around fifteen
iv
Devaswom Board . In that case, the Kerala High Court held that if a years old, Neha decides to convert to Islam. Is Rahman a Hindu for
person makes a bona fide declaration of being a Hindu, and his the purpose of the HM Act?‖ When looking at a question like this,
actions and intentions do not betray some nefarious ulterior motive, do not get confused by the name of the child, or what Neha, his
he will be considered to be a convert to Hinduism. mother, decides to do later on in life. As we studied above, if a child
has been brought up as a Hindu by at least one Hindu parent, he
The various aboriginal tribes of India — communities such as the
will be considered to be a Hindu. So, Rahman is a Hindu for the
Bohras, the Khojas, the Mopals, the Vannia Tamil Christians (in
purposes of the HM Act and this legislation will apply to him.
matters barring Section 14 of the HM Act) and some other
communities — are also considered by the courts in India to be
‗Hindus‘ for the purpose of the HM Act. However, note that the
Scheduled Tribes of India (as defined under Article 366(35) of the
Constitution of India) do not fall under the purview of the HM Act,
unless they either followed Hindu Law before its enactment or the
Central Government directs that the HM Act applies to them.
In dealing with questions regarding who is a ‗Hindu‘ for the purpose

of the HM Act, it is important to stick to the basics and not get
5
Unit 2: Sources of Hindu Law The following are considered to be the sources of Hindu law:
In the last Unit, we considered the categories of people to whom

Hindu Law applies. But where does Hindu Law come from? What
are its geneses? In this Unit, we will try to answer that question, as
we still look to some of these sources for answers, especially when
the legislations are silent on some issues.
Laws usually evolve from certain more basic propositions. This is

the case on the Indian subcontinent as well. Many thousands of
years ago, people had been following the guidelines and concepts
laid down in the Vedas. These were guidelines then, and did not
have the force of law. Over time, they evolved into rules. When
rulers started enforcing these rules, they became de facto laws.
These were then codified into the various national legislations,
such as the Hindu Marriage Act 1955, the Hindu Adoption and
Maintenance Act, 1956,the Hindu Minority and Guardianship Act
1956, and the Hindu Succession Act, 1956.
6
Ancient Sources including Manu (who is credited with giving Hindus their first laws),
Vyas, Vasishta, and Yama — though this list is far from exhaustive
Let us first analyse the sources in greater detail. ‗Shruti‘, for
— are said to have penned the smritis. The rules laid down in
instance, refers to the oral tradition, and is derived from the root
smritis can be divided into three categories: Achar (relating to
‗shru‘, which means ‗to hear‘. It is considered to be the primary
morality), Vyavahar (signifying procedural and substantive rules
source of Hindu Law and is believed to be ―the language of the
which the king or the state applied for settling disputes in the
divine revelation through the sages.‖vWhen we talk of the shrutis,
adjudication of disputes), and Prayaschit (signifying the penalty
the vedas are also said to be included. The four vedas— Rig
for commission of a wrong).vii
Veda, Yajurva Veda, Sama Veda, and Atharva Veda — are
considered to be the repository of all knowledge. Each veda has Commentaries and digests (nibandhs) cover a period of more than
three components: Sanhita, which consists mainly of the hymns; one thousand years, from the seventh century to 1800 A.D. A lot
Brahmin,which enumerates our duties and means of performing of these works are devoted to explaining and reconciling the
vi
them; and Upanishad,which contains the essence of these duties. contradictions in the smritis, and in that light, are akin to modern
scholarly journals. The different schools of Hindu Law arose
While the shrutis are said be of divine origin, the smritis are
because different authorities wrote differing versions and gave
considered to be human works — the ideas that the sages wrote
interpretations of the law. Dayabhaga and Mitakshara are the two
down from their memory in their own words. Dharmasutras and
major schools of Hindu Law.
Dharmashastras are the two kinds of smritis. While the former is in
the form of prose (short maxims), the latter is made up of small Finally, we come to custom, which can be understood as a practice
stanzas of poetry. Many of the renowned sages of ancient India, that has been followed for such a long time that it has acquired the
7
force of law. In many aspects, a custom is said to be superior to Modern Sources
written law.You may have noticed the ubiquity and the importance
The most important modern sources of law are the
of custom in your own family, where rituals and rites have been
legislationpassed by the Parliament of India. As we studied earlier
handed down from generation to generation and are unwavering.
in this Unit, various aspects of Hindu Law have been codified in
Customs can be local, based on the class, and familial. But can
legislation such as The Hindu Marriage Act, 1955, The Hindu
every practice become a custom? No. For a practice to be
Adoptions and Maintenance Act, 1956, The Hindu Minority and
considered to be a custom — and thereby, a source of law — it
Guardianship Act, 1956, and The Hindu Succession Act, 1956. In
must be:
this Course, apart from looking at Muslim Law, Parsi Law and
 Ancient; Christian law, we will also study the three enactments listed

above.Succession Law will be dealt with in a separate
Certain and unambiguous;
Programme.Once enacted, the codified law is considered to be
 Free of technicalities; final, and is said to override prior customs, unless the Act itself

provides otherwise.
Not illegal, immoral, or against public policy; and
Precedentsare also referred to as ‗judge-made law‘. Judgments of
 Should have been continuously and uniformly followed for a the Supreme Court are binding on all courts (and itself), and the
long time. judgments of the higher courts are binding on the lower courts. This
way, when a court considers a particular aspect of Hindu Law and
8
provides a judgement, all courts are bound to follow this decision
and the law is said to be decided.
Finally, in cases where there is no existing rule or law that can be

applied to a problem that comes up before the Court, principles of
justice, equity, and good conscience are to be kept in mind while
resolving a dispute. Fairness and propriety are to be considered as
the basic guiding factors.
This reliance on principles of justice, equity, and good conscience

forms the basis of natural law theory, which you can learn about in
the free Programme on Fundamentals of Legal Research on
myLawU that is available here.
9
Unit 3:Sapindas and degrees of prohibited relationships (inclusive) in the line of ascent through the father, the line being
traced upwards in each case from the person concerned, who is to
The first two Units would have given you a general outline of the
be counted as the first generation‘ and holds that ‗two persons are
basis of Hindu Law. While we will look at the specifics of the Hindu
said to ‗sapindas‘ of each other if one is a lineal ascendant of the
Marriage Act, 1955 later, at this introductory stage, it is important f
other within the limits of sapinda relationship, or if they have a
or you to understand the concept of degrees of prohibited
common lineal ascendant who is within the limits of sapinda
relationships.
relationship with reference to each of them. Section 3(g) of the Act
In biology, there is a concept known as ‗in-breeding‘. When two goes on to clarify the conditions under which two persons are said
people who are genetically very similar to each other breed and to be within the "degrees of prohibited relationship".
produce children, the children tend to be sickly and there is a higher
Interestingly, this is not just a concept present under Hindu law.
probability that they may suffer from a variety of genetic diseases.
Under Section 2(b) of the Special Marriage Act, 1954, there is a
Such combinations often lead to physically or mentally deformed
clear definition of what the degrees of prohibited relationships for
children as well.viii Over time, it was noticed that such children were
marriage are. The First Schedule of the enactment helpfully lists the
more common in marriages between two people who were closely
relationships that are considered out of bounds.
related to each other, and so the concept of sapindas — or
prohibited degrees of relationships — arose. Let us break this concept down a little to understand it further. A
lineal ascendant is just the opposite of a descendant: it is someone
Consider Section 3(f) of the HM Act, which defines ‗sapinda
who comes above you in a family tree. Simply put, make a family
relationship‘ as extending as far as the third generation
tree and start counting off three generations (or five generations)
(inclusive) in the line of ascent through the mother, and the fifth
10
upward from the person in question – all the people you have ticked can count up four generations (which is less than five through the
off are sapindas of the person in question. They cannot marry any father):
of these people, or anyone who also has any one of these people
1. Sonam‘s generation
as a sapinda.
2. Anil‘s generation
Let us look at an illustration to understand this better.
3. Rani‘s generation
Illustration: In the family tree provided below, the line of ascent for
Akshay is through his father, Jeetu. So, we can count up four 4. Ravi‘s generation
generations (which is less than five through the father):
1. Akshay‘s generation
We clearly hit upon Ravi as a common lineal ascendant for both A
2. Jeetu‘s generation and Sonam, and so, they are sapindas of each other. Therefore,
they are considered to be within the prohibited degrees of
3. Suresh‘s generation
relationship, and a marriage between them is not permissible under
4. Ravi‘s generation. Hindu Law.
Akshay‘s grandfather‘s sister is Rani, whose granddaughter is

Sonam. Again, her line of ascent is through her father (Anil), so we
11
Please note that questions from this area of law appear without fail
in law school examinations. Students are usually asked to identify if
the marriage between two parties is permissible under Hindu Law.
The Interactive Session for this Block will help you answer such
questions better.
However, keep a few simple steps in mind while answering

examinations:
 Always make a family tree – this helps you visualise the

answer and relate it to the sometimes confusing text of the
enactment.
 If calculation of the prohibited degrees of relationship is

proving too difficult, just refer to the First Schedule of the
Special Marriage Act. It lists down the relationships that are
not permissible, and they are, by and large, the same for
Hindu Law. This might save you some time in an exam.
 Make sure you refer to all the relevant sections of the HM
12
Act — generally, Sections 3, 5, and 11 will have to be
explained in some detail to get full marks in the question.
13
Unit 4: The ceremony of marriage cases, the consent or participation of the bride and groom
is irrelevant.It is the families that make the match.
The concept of marriage
There is a debate as to what the nature of marriage is in India: is it

a sacrament or a contract? The Hindu view on marriage is that it is These reasons may lead us to think that marriage is more a
necessary, both for fulfilling one‘s dharma and for satisfying one‘s religious union rather than a civil union. But certain aspects – the
carnal desires (kama). There are certain reasons why it is requirement of valid consent under Section 5 of the HM Act, the
considered to be a sacrament, rather than a civil contractix: recognition of divorce and widow remarriage, and the acceptance

of new grounds for divorce — such as irreparable breakdown of
It is considered permanent and irrevocable — a husband
marriage and mutual consent — lend credence to the view that
and wife are considered bound, even beyond death. It is for
marriage is nowadays akin to a social or civil contract.x In
this reason that widow remarriage was, for so long, not
conclusion, it can be said to be neither one nor the other in
recognised in large parts of the country.
entirety.It has aspects of both a sacrament and a contract.
 It is considered a holy union — the marriage is
characterised by essential religious rites and rituals, without
which it is not considered complete. Forms of marriage
 The consent of the parties is not very relevant — arranged The Hindu texts describe certain forms of marriage that are
marriages are prevalent across the country and, in some considered acceptable. In our modern world, some of these seem
anachronistic and odd; when trying to understand them, you must
14
keep in mind that the mores of ancient India were completely  Rite of the Prajapati - (Prajapatya) — where the father gives
different, and that a lot of rites and rituals get somewhat lost as they away his daughter after blessing the couple with the text
are rewritten and passed down over the years. ―May both of you perform together your duties‖
Manusmriti, or the Laws of Manu, describes eight kinds of  Rite of the Asuras— when the bridegroom receives the bride
marriagexi: after bestowing wealth to her kinsmen and to the bride

herself according to his own will.
Rite of Brahmana (Brahma) — where the father of the bride
invites a man learned in the Vedas and is of good conduct,  Rite of the Gandharva — the voluntary union of a maiden
and gives his daughter in marriage to him after decking her and her lover, which arises from desire and sexual
with jewels and costly garments. intercourse for its purpose.
 Rite of the Gods (Daiva) — where the daughter is groomed  Rite of the Rakshasa — when the bride is forcibly taken
with ornaments and given to a priest, who duly officiates at a from her home and from her family.

ritual of sacrifice during the course of the performance of
Rite of the Pisaka — when a man forces himself on a girl
this rite.
who is sleeping or intoxicated or is mentally unbalanced or
 Rite of the Rishis (Arsha) — when the father gives away his handicapped.
daughter after receiving a cow and a bull from the
bridegroom.
15
marriage. The Act does not specifically forbid any form of marriage,
with the passage of time,some forms of marriage —such as the
Rakshasa or Pisaka marriage — have fallen out of practice.
Section 7 of the Hindu Marriage Act provides that a Hindu marriage

may be solemnized in accordance with the customary rites and
ceremonies of either party (and specifies that where such rites and
ceremonies include the saptapadi (that is, the taking of seven steps
by the bridegroom and the bride jointly before the sacred fire), the
marriage becomes complete and binding when the seventh step is
taken). So the marriage may be solemnised as per the customs of
the community.For instance, a community may provide for a mere
exchange of garlands, while another may require a more elaborate
yajna ritual. The Act takes into account these differences.
A Hindu marriage being solemnised.
Image above has been taken from skapoor‘s photostream on Flickr, here.
The Act is very clear on one point, however.As per Section 5, ―any
CC BY SA-2.0.
two Hindus‖ can perform a valid marriage. So,it is clear that the
enactment lays down no bar on inter-caste marriage.As long as the
two parties are Hindus (as defined in the first Unit), they can marry
The HM Actdoes not provide for any specific form of marriage, but
each other. If a Hindu resident in India wants to marry someone
recognises the various rites and rituals connected with a Hindu
16
who is not of the same religion, they will have to get married under
the Special Marriage Act, 1954.Their marriage will not be valid if
conducted under the HM Act. We will consider the operation of the
Special Marriages Act in a later Block.
17
Conclusion
In this Block, we have studied the basics of the Hindu Law with
respect to marriage. Personal laws can be a complicated topic,
which you may find confusing.So, it is essential that you get a
good understanding of the basics first. Knowing all the people
that Hindu Law applies to, and what the sources of Hindu Law
are, helps us understand how to apply personal laws to Hindus
in the modern context. We have also studied some topics that
are covered in examinations: what are the degrees of prohibited
relationships, which are the kinds of marriages recognised by
Hindu law, and the nature of marriage in Hindu law itself.
In the next Block, we will study the validity of marriages under

the HM Actand study which marriages are void or voidable.
-x-x-
18
Selected Reading Jurisprudence vis-a-vis Modern Indian Jurisprudence‖, AIR
2008 Journal 65.
Books
 A.M. Bhattacharjee, Hindu Law and the Constitution, 2nd

ed., Eastern Law House, 2005.
 ParasDiwan, Modern Hindu Law, 17th Ed., Allahabad Law
Agency, 2006.
 Mayne’s Treatise on Hindu Law and usage, J. Ragannath,
Ed., 15th ed., Bharat Law House, 2003.
 Mulla, Principle of Hindu Law, Vol-I, S.A. Desai, Ed., 19th
ed., Lexis NexisButterworths, 2005.
 PoonamPradhanSaxena, Family Law Lectures: Family Law–
I, 2nd ed., 2007.
Articles
 Justice (Retd.) MarkandeyKatju, ―Ancient Indian
19
i nd
PoonamPradhanSaxena, Family Law Lectures: Family Law– I, 2 ed., 2007.
ii
(1959) 61 Bom L.R. 1016.
iii
AIR 1971 SC 2352.
iv
1975 KLT 55.
DebanshuKhettry, ―Sources of Hindu law‖, available
v
athttp://legalservicesindia.com/article/article/sources-of-hindu-law-329-1.html.
vi
Id.
vii
Id.
viii
See generally: Gonzalo Alvarez et al, ―The Role of Inbreeding in the Extinction of
a European Royal Dynasty‖, available at
http://www.plosone.org/article/info:doi/10.1371/journal.pone.0005174.
ix
Report of the Law Commission of Bangladesh on the Uniform Family Code,
x
Supra note i.
xi
Subhamoy Das, ―Types of Hindu marriage‖, available
athttp://hinduism.about.com/od/matrimonial1/a/typesofmarriage.htm.
20

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COURSE

1 - Introduction to Family Law - Marriage, Divorce,

1 - Introduction to Hindu Law

After you go through this material, you should be able to:

 Identify the classes of people to whom Hindu Law applies

 Trace the history and sources of Hindu Law in India

 Work out when someone is a ‗sapinda‘ and when two

 Perceive the nature of marriage in Hindu Law

In this introductory Block, we start by defining who may be termed

What of the people belonging to the various different sects and

In dealing with questions regarding who is a ‗Hindu‘ for the purpose

In the last Unit, we considered the categories of people to whom

Laws usually evolve from certain more basic propositions. This is

Finally, in cases where there is no existing rule or law that can be

This reliance on principles of justice, equity, and good conscience

Akshay‘s grandfather‘s sister is Rani, whose granddaughter is

However, keep a few simple steps in mind while answering

 Always make a family tree – this helps you visualise the

 If calculation of the prohibited degrees of relationship is

 Make sure you refer to all the relevant sections of the HM

There is a debate as to what the nature of marriage is in India: is it

Section 7 of the Hindu Marriage Act provides that a Hindu marriage

In the next Block, we will study the validity of marriages under

 A.M. Bhattacharjee, Hindu Law and the Constitution, 2nd

 Justice (Retd.) MarkandeyKatju, ―Ancient Indian

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