Hindu Personal Law

Hindu Law personal in Nature. Personal law deals with various rights and obligations of a certain
community. Hindu Personal law governs and regulates subjects or areas of a private sphere such
as marriage, divorce, maintenance, succession, guardianship, etc. among Hindus.
Who is Hindu?
People who practice Hinduism, whether by birth or conversion, live according to the Hindu way
of life, and are recognized by others as Hindu is referred to as Hindu.
If a person is born into a Hindu family, he/she is considered Hindu. According to Hindu theory, a
Hindu is born not made. So, any person who is born to Hindu Parents is called 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 Hindu.

According to Hindu law, the law is identified with dharma and is supposed to have its origin in
God itself. According to this theory, Hindu law has its origin in divine sources. It is supposed to
have originated from the Vedas that themselves are the revelation from the Almighty.
Sources of Hindu Law
According to Manu, there are four ancient sources of Hindu law namely, Shruti (Vedas), Smriti,
Commentaries and digest, and Sadacharya (approved customs and usages) and what is agreeable
to one’s conscience.
The main sources of Hindu law are as follows:
a) Shrutis
b) Smritis
c) Commentaries and digest
d) Judicial precedent
e) Legislation
f) Justice, equity, and good conscience
g) Customs

The Shrutis
The name Shruti signifies ‘what is heard’ from above and is meant with Vedas. The shrutis are
the paramount sources of Hindu law but do not have practical as well as legal significance.
The Shruti consists of four Vedas and Upanishads primarily dealing with religious rites and the
means of achieving true knowledge and moksha.
The Vedas are ‘Rig, Yajur, Sama, Atharva’
The Smritis
Smritis means ‘what was remembered’ and is of human origin and is believed to be the
recollections of rishis handed down to us, thereby constituting the principal sources of Hindu
law. It comprises principles whose authority is without question, but whose meaning is open to
various interpretations and has to be determined by the ordinary process of reason.
Smritis were classified into two types
1) Dharmasutras
2) Dharmashastras

Custom
Customs may be defined as a habitual course of conduct generally observed in a certain
community. The Sanskrit equivalent of custom is Sadacharya, which means the approved usages
or the usages of various men. Customs is one of the most important sources of Hindu law.
Custom is regarded as the third source of Hindu law. The influence of customs over religion is
equal. Where there is a conflict between a custom and the texts of smritis, such custom will
override the text.
Conditions of a valid custom:
A custom, to be valid, must be observed continuously for a very long time without any
interruption. A practice must be supported not only for a very long time but it must also be
supported by the opinion of the general public and morality.
a) The custom must be ancient. The particular usage must have been practiced for a long
time and accepted by common consent as a governing rule of a particular society.
b) The custom must be certain and should be free from any sort of ambiguity. It must also
be free from technicalities.
c) The custom must be reasonable and not against any existing law. It must not be immoral
or against any public policy
d) The custom must have been continuously and uniformly followed for a long time.

There are three types of custom:

a) Local Custom: Local customs are those types of customs that exist in a certain
geographical locality and are thus part of that place’s culture. Local customs prevail in
some definite localities.
b) General Custom: A general custom is a custom that is not specific to a single locality,
but rather is followed by the whole nation or country. They are also part of the law.
c) Family Custom: Family Customs are family traditions or family cultures, which they are
following for a long time and were given by their ancestors long back.
Factum Valet
Factum valet means that an act that should not have been done becomes valid when it's done. For
instance, "A minor's marriage without the consent of the guardian can be held to be valid on the
application of the doctrine of factum valet". This is an example of how the doctrine of factum
valet is relied upon by the judiciary to accord for the validity of child marriage.

Marriage
Marriage is regarded to be a sacrament by Hindus, rather than a form of the social contract, it is
believed that all men and women are created to be parents, and practice dharma together. It is an
enduring bond between the husband and wife which is permanent and tied even after death and
they will remain together after death. Once it is tied cannot be untied. It is a religious and holy
union of the bride and groom which is necessary to be performed through religious ceremonies
and rites.
Hindu marriage is considered one of the most important sacraments. Hindu marriage is “a
religious sacrament in which a man and a woman are bound in a permanent relationship for the
physical, social, and spiritual need of dharma, procreation, and sexual pleasure.”

Forms of Marriage under the Hindu Law

There are eight different types of Shastric marriages recognized by ancient Hindu law, of which
four are legitimate and regular. These are Brahma (bride given a gift by father), Gandharva
(mutual agreement of bride and bridegroom), and Asura (bride virtually sold by the father).
Classical Hindu Law recognized 8 forms of Marriage. Among them, 4 forms are valid and the
other 4 are disapproved.
Brahma Marriage
The Brahmavivaha is a righteous form of marriage. It refers to the marriage of one's daughter to
a man of good conduct, learned in the Vedas. Only the Groom is able to get married once he has
completed his education. Brahma marriage holds the supreme position of the eight types of
Hindu matrimony. Where the parents of a groom seek a suitable bride, and the bride's father
would ensure that his daughter's prospective groom is a scholar, one who is well-versed in the
Vedas.
Daiva marriage
It is a form of marriage where a man gifts his daughter's hand in marriage to a priest. After
waiting for a reasonable period for a suitable man for their daughter and when they do not find
anyone, the bride’s parents go looking for a groom in a place where a sacrifice is being
conducted. In this form of marriage, the father gives away his daughter as a ‘Dakshina’
(sacrificial fee) along with heavy ornaments.
Essentials of a valid Hindu Marriage:
Monogamous Relationship
Under section 5(i) of the Hindu Marriage Act, the first essential condition of a valid Hindu
marriage is that neither party should have a living spouse at the time of marriage. Section 5(i)
may read with Section 11,17 of the Hindu Marriage Act, 1955 which makes a Hindu guilty of the
offense of bigamy under Section 491 of the Indian Penal Code and it is ultra vires to the
constitution on the ground that it violates Article 14, 15 or 25(1) of Constitution of India [7].
Free Consent
Section 5(ii) of the Act provides that at the time of marriage, neither party shall be incapable of
giving free valid consent based on unsoundness of mind, mental disorder, and insanity (unfit for
marriage and procreation of children). Free consent is a necessary element of a Hindu Marriage.
A Hindu Marriage takes in contravention of this condition is not per se void but voidable under
Section 12 (1)(b) of the Act [8].

Age
Under section 5(iii) of the Act, at the time of marriage the male shall be a minimum of 21 years
of age and the female 18 years of age. Any violation of the required age of this clause is not void
or even voidable but it is a breach of the condition and is punishable with simple imprisonment
which may extend to fifteen days, or with a fine, or with both by Section 18(a) of the Act.

Prohibited Relationship
Under section 5(iv) of the Act, neither party shall fall under degrees of prohibited relationship
except when such union is allowed by custom or usage. A marriage solemnized within the
prohibited degrees of relationship would be void under Section 11 of the Act and is punishable
by simple imprisonment which may extend up to one month, or with a fine or with both by
Section 18(b) of the Act. If a custom is prevailing it must be a valid custom under Section 3(a) of
the Hindu Marriage Act. The marriage constituted within the degrees of prohibited relationship
will only become legal and valid if there exists a valid custom [9].

Sapinda Relationship
Under section 3 (f)(ii) of the Act, two persons are said to be “spindles” of each other if one is a
lineal ascendant of the other within the limits of said relationship, or if they have a common
lineal ascendant who is within the limits of said relationship regarding each of them. Sapinda
marriages are prohibited and are liable for punishment as per section 18(b), unless when such
unions are allowed by custom or usage. Thus according to these sections marriages between
persons of blood relationship are void.

There are also some other conditions explained in different sections of the Hindu Marriage Act
in addition to this they are:
1. Section 7 – A Hindu Marriage may be solemnized by the customary rites and ceremonies. For
example, it is essential to take ‘saptapadi’ (a customary practice of taking seven steps around the
sacred fire by the bridegroom and bride) as a ceremony followed by Hindus.
2. Section 8 – A Hindu Marriage may be registered within 15 days of solemnization of marriage
as the state government prescribes. Registration provides written proof of marriage.
3. Section 12 (1)(c) – To constitute a valid Hindu Marriage free consent of both the petitioners
and parents are necessary. Free consent means consent obtained without any force or fraud. If
free consent is absent, then that marriage becomes voidable.

CONCLUSION
The above listed are the essential condition of a valid Hindu Marriage under Hindu Law. Hindu
Marriage is not only a sacrament but a contract too. As soon as the marriage is completed it gives
certain marital rights and duties to both husband and wife.

Divorce
Marriage is regarded to be a sacrament by Hindus, rather than a form of the social contract, it is
believed that all men and women are created to be parents, and practice dharma together. It is an
enduring bond between the husband and wife which is permanent and tied even after death and
they will remain together after death. Once it is tied cannot be untied.
In Hindu personal law, there is no mention of divorce or dissolution of marriage as Hindu
marriage is considered a divine bond and a sacrament. In Hinduism marriage is, therefore, a
sacred bond that cannot be broken by divorce by husband and wife.
Relevant Laws and Provisions related to Hindu Divorces in Bangladesh
 The Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946
 Hindu Marriage Registration 2012
 Hindu Marriage Registration Rules, 2013
 The Family Courts Ordinance- 1985
In Bangladesh, there exists no separate law on Hindu Marriage and Divorce. However, there is
an Act named The Hindu Married Women's Right to Separate Residence and Maintenance Act,
1946. Under this Act, A Hindu married woman can ask for separation and maintenance from her
husband upon satisfying the grounds that are mentioned in section 2 of the Act.
As per this section, a Hindu married woman shall be entitled to a separate residence and
maintenance from her husband on either of the following grounds:
a) Cruelty – A wife can file a divorce case when she is subjected to any kind of mental and
physical injury that causes danger to life, and health.
b) Desertion – If the husband voluntarily abandons his partner for at least a period of two
years, the abandoned wife can file a divorce case on the ground of desertion.
c) Conversion – In case either of the two converts himself/herself to another religion, the
other spouse may file a divorce case based on this ground.
d) If he Re-Marries - If he keeps a mistress or lives with her
e) Adultery and other justifiable reasons
However, a Hindu wife shall not be entitled to a separate residence or maintenance if she
converts to any other religion or fails to comply with the order of the competent court for the
restitution of conjugal rights.

Maintenance
In simple words, maintenance is an amount that is given in the form of financial assistance to
either party. Maintenance is the financial support that a husband needs to pay to his wife when
she is unable to sustain herself financially on her own during the divorce proceedings as well as
post-divorce. Maintenance is paid by the husband either every month or in a lump sum so that
the wife can have the basic needs of life such as food, clothing, shelter, etc.
The basic motive of providing maintenance is to maintain an equitable standard of living for the
spouse or any other dependent personality as it was before the separation. There is no fixed
amount of maintenance.
Maintenance includes- Food, clothing, residence, education and medical attendance, and
treatment. In the cases of an unmarried daughter, also the reasonable expenses of and incidents to
her marriage.
Who Can Claim Maintenance?
a) Wife
b) Daughter-in-law
c) Children (legitimate sons, illegitimate sons, unwedded legitimate and illegitimate
daughter, married daughter unable to maintain herself)
d) Parents
e) Any other dependent person
A Hindu wife is entitled to maintenance if she lives separately from her husband for a justifiable
cause. A Hindu married woman shall be entitled to a separate residence and maintenance from
her husband on either of the following grounds:
a) Cruelty – A wife can file a divorce case when she is subjected to any kind of mental and
physical injury that causes danger to life, and health.
b) Desertion – If the husband voluntarily abandons his partner for at least a period of two
years, the abandoned wife can file a divorce case on the ground of desertion.
c) If he Re-Marries
d) Conversion – In case either of the two converts himself/herself to another religion, the
other spouse may file a divorce case based on this ground.
e) If he keeps a mistress or lives with her
f) For other justifiable reasons
g) Adultery
In case of divorce, the wife has a right to claim maintenance from her husband when she is
unable to maintain herself financially. The fact that the wife is working and earns some income
or not. Does not affect her right to claim maintenance from her husband.
However, the maintenance is determined by the existence of various factors by the court as
follows:
a) Wife’s and Husband’s incomes and other properties
b) Liabilities of the husband, such as dependent parents
c) The degree of relationship between the two
d) Social status and lifestyle of both parties
e) Age and health condition of both the parties
f) Expenses for education and upbringing of the child/children
g) The reasonable wants of the dependent

Conclusion: A lot of progress has been made concerning provisions for maintenance. Not only a
wife but also children, parents, widowed daughter-in-law, and the Hindu male himself is entitled
to maintenance. The decision of the court for the wife to be entitled to 25% of the husband’s
income has been a landmark decision and is serving as a blueprint for future cases. Also, the
Welfare of Parents and Senior Citizens Act, 2007 has proved to be quite favorable for old-age
citizens. Section 125 CrPC incorporates a lot of provisions in itself which most of the time
proves to be a savior.

Adoption
An adoption is an act by which a person takes the child from their biological or natural parents to
his family and treats him as his own son. The concept of Adoption has been existing since earlier
times and it has various views in various legal systems. In ancient times in Hindu law, sonship
was considered of greater importance. The son was considered a substitute for the male issues
existing in the family. If a son is born into a Hindu family, he is required to perform some duties
which are to perform funeral rites and to preserve the continuance of the family. So a son is an
essential part of the Hindu family.
The concept of adoption is very much recognized and popular in the Hindu religion as the
Shastric law of Hindus confers special privileges upon the father of a son.
Meaning of Adoption
Adoption is a formal recognition of a person as the son of another. An adopted son is spoken of
as a secondary, subsidiary, or substituted son. It is a transplantation of a son from the family in
which he is born to another family where he is given by the natural parents by way of a gift.
The adopted son is taken as having been born into the new family. He acquires all the rights and
status in the new family and his ties with the old family come to an end.
Meaning of Adoption
Manu says- “Boy, equal by caste, whom his father or his mother affectionately gives confirming
the gift with a libation of water, in times at distress to a man as his son for he is without a son,
must be considered as an adopted son.”
What are the essentials of a valid adoption?
According to Section 6 of the Hindu Adoption and Maintenance Act 1956, the requisites of a
valid adoption are as follows:
a) The person adopting has the capacity and also the right to take in adoption; (Who may
adopt)
b) The person giving in adoption has the capacity to do so; (Who may give in adoption)
c) The person adopted is lawfully capable of being taken in adoption. (Who may be
adopted)
d) The adoption is complete by actual giving and taking.
e) The ceremony called “Datta Homam” (oblation to fire) has been performed.

Who may Adopt?

Every Hindu has the right to adopt a son, provided he -
a) has no living son, grandson, or great-grandson legitimate or adopted,
b) is possessed of sound mind;
c) he has attained the age of discretion;
d) is not suffering from any mental or physical
e) disability which disqualifies him from inheritance.
The facts that -
The adopter is a bachelor or a widower or his wife is pregnant or does not consent or oppose
adoption are immaterial to the validity of the adoption.
A wife can also adopt to her husband but no other female can adopt to any other male; thus a
mother cannot adopt to her son, nor a sister to her brother. A wife cannot adopt during her
husband’s lifetime except with his express consent. In no case can a wife or a widow adopt a son
to herself; the adoption must be made to her husband. An adoption by a woman of a son to
herself is invalid, and it confers no legal right upon the person adopted.

Who can be adopted?

According to Section 10 of the Hindu Adoption and Maintenance Act 1956, any child (son or
daughter) can be adopted by the following conditions:
a) The child should be Hindu.
b) The child has not been adopted before.
c) The child to be adopted must be a male.
d) The child should not be married.
e) The age of the child must be below 15 years.
f) He must belong to the same caste as his adopted father.
g) He must not be a boy whose
h) A deaf and dumb person cannot be adopted.

According to Section 11 of the Act, if a son or daughter is adopted the adoptive father or mother
must not have a living son, son’s son, son’s son’s son (either by legitimate blood relationship or
by adoption) living at the time of adoption, in the case of son and in the case of a daughter there
must not have a living daughter or son’s daughter (either by legitimate blood relationship or by
adoption) living at the time of adoption.

Other essentials of a valid adoption

The other essentials of a valid adoption are as follows:

i. if the adoption is by a male and the person to be adopted is a female, the adoptive father is at
least twenty-one years older than the person to be adopted;

ii. if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at
least twenty-one years older than the person to be adopted;
iii. the same child may not be adopted simultaneously by two or more persons;

iv. the child to be adopted must be actually given and taken in adoption by the parents or
guardian concerned or under their authority with intent to transfer the child from the family of its
birth or

v. in the case of an abandoned child or a child whose parentage is not known, from the place or
family where it has been brought up to the family of its adoption.

Adoption by Men
Section 7 of the Hindu Adoption and Maintenance Act, 1956 states that any Hindu male who is
major, is of sound mind, is eligible to adopt a child. If he is married, then the free consent of the
wife is also needed for adoption. But if the wife has renounced the world or ceased to be Hindu
or a court of competent jurisdiction declared that she is of unsound mind, then no consent is
needed.

Also if the person has more than one living wife at the time of adoption, then consent of all the
wives is necessary for adoption. Thus adoption without the consent of wife is void. The adoption
conducted during wife’s pregnancy is valid. Such adoption will not be affected by subsequent
birth of a male or female child, and both biological and adopted child will have equal rights over
property [2].

Adoption by Women

Section 8 of the Hindu Adoption and Maintenance Act, 1956 states that any female Hindu who is
major, is of sound mind, who is not married is eligible to adopt a child. If she is married, then
consent of the husband is needed. Earlier if the female Hindu was married she cannot adopt even
with the permission of husband, later this was amended.
But if the marriage is dissolved or if her husband is dead or has renounced the world or has
ceased to be a Hindu or a court of competent jurisdiction has declared that he is of unsound
mind, then no consent is needed. Subsequent marriage of the adoptive female Hindu cannot
invalidate the adoption [3].

The adoption by a divorced wife and widow is also recognized by the Hindu Adoption and
Maintenance Act, 1956. After divorce the status of women become independent her position will
be like that of an unmarried female.

A widow can adopt a child for herself and after adoption she will become the adoptive mother of
the child. A son adopted by a Hindu widow would be deemed to be the son of her late husband
also [4].

Who can give in adoption

Section 9 of the Hindu Adoption and Maintenance Act, 1956 lists out the person’s capable of a
valid adoption. Only the father, mother or the guardian of a child have the capacity to give the
child by adoption.

A father will have the right to give in adoption with the consent of the mother. But if the mother
is dead or completely and finally renounced the world or has ceased to be a Hindu or has been
declared by a court of competent jurisdiction that she is of of unsound mind, then no consent is
needed.

A mother will have the right to give in adoption with the consent of the father. But if the father is
dead or completely and finally renounced the world or has ceased to be a Hindu or has been
declared by a court of competent jurisdiction that he is of of unsound mind, then no consent is
needed.

What are the effects of adoption?

Section 12 of the Hindu Adoption and Maintenance Act, 1956 states about the effects of
adoption. An adopted child will have all the rights as that of a natural child. If the adopted child
have any property with him it will be continued to remain with him after the adoption also. If
certain restrictions is upon the child in marrying someone such as degrees of prohibited
relationship according to Hindu Marriage Act, 1956 that will be continued after adoption also.

Once an adoption is conducted it will be final, and the adopting parents cannot cancel it at any
circumstances. Also the child cannot renounce and cannot go back to the old family.

Also Read: Void and Voidable Marriage under Hindu Marriage Act, 1955

CONCLUSION

Adoption is a social institution that has undergone many changes with the passage of time. The
concept and objectives of adoption has changed drastically from time to time. In Hindu law the
earlier motive of adoption was religious, but now the concept has changed. The only personal
law which allows adoption in India is the Hindu Law. Other personal laws like Muslim Law,
Christian Law doesn’t have the provisions for adoption, so they want to approach the court for
adoption under the Guardians and Wards Act, 1890.