THE INFLUENCE OF COMMON LAW AND EQUITY ON HINDU LAW

National Law University Odisha, Cuttack

A Project Work on Personal Law-I

Topic: Influence of Common Law and Equity on Hindu Law

Under the guidance of:

Ms. Priyanka Anand

B.A. L.L.B
Semester VI
Batch of 2020 - 2025
 
Submitted by: 
Suryansh Sritej Mohanty (2020/ BA LLB /106)
Sibasish Panda (2020/B.A. LL.B./092)

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THE INFLUENCE OF COMMON LAW AND EQUITY ON HINDU LAW

Table of Contents
Introduction..........................................................................................3
The law of the Joint Family..................................................................5
Marriage and Divorce...........................................................................7
Influence with regard to laws of adoption............................................9
Inheritance and coparcenary rights.......................................................9
Conclusion..........................................................................................11

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THE INFLUENCE OF COMMON LAW AND EQUITY ON HINDU LAW

Introduction

Speaking generally, from the time when in the late eighteenth century, the East India
“

Company adopted the principle of direct rule and established muffassal courts the rule
governing a case in which a Hindu is concerned is to be found in a statute, or, failing that, in
matters of succession, religious usage, and institution, the Hindu law, except when excluded
by custom, and, failing that, in “justice, equity and good conscience”. 1” In their first century,
the muffassal courts were very often obliged to have recourse to the rule of "justice, equity
and good conscience,". But throughout this same time, judges were not familiar with Hindu
law. They obtained the law governing the case from the pandit, a court-appointed Hindu
lawyer who was bound to render his judgement in accordance with the sastras. It would
appear likely that custom revealed significant deviations from the laws of the sastras and
varied significantly in different areas of India when the Anglo-Indian courts first started to
take cognizance of problems of Hindu law. When English officials and attorneys started
learning about Hindu law, they looked to the pandit sources of information—the sastras and
the Commentaries. They resorted to the same sources, as well as the works of English and
Indian officials and attorneys, when the job of pandit was abolished and the judge was
required to know the law. 2” ”

Although customs were considered to be of utmost importance and were recognized as such,
there were challenges in proving them to the court's satisfaction. Unlike the English legal
tradition, which required that a custom must have been prevalent since time immemorial, the
courts did not apply this technical rule.3 However, the process of collecting and presenting
the required evidence was often costly and labor intensive for the litigant and their legal
counsel, which frequently discouraged them from pursuing a custom-based claim.

The decisions made by the Privy Council had legal authority over all courts in India.
However, the council recognized the existence of different schools of law, which meant that a
ruling might have a limited effect in certain regions. As a result, the governing rules for
1
Bakewell J.H., 1905. Civil Procedure in India. LQ Rev., 21, p.55.
“

2
Cohn, B.S., 1996. Colonialism and its forms of knowledge: The British in India. Princeton University Press.
3
Cohn, B.S., 1989. Law and the colonial state in India. History and Power in the Study of Law: New Directions
in Legal Anthropology, pp.131-52. ”

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THE INFLUENCE OF COMMON LAW AND EQUITY ON HINDU LAW

Hindu law were increasingly based on court decisions rather than the texts of Sanskrit
writers, similar to the legal system in England. The courts' stance indicated that any revisions
to align the law with Hindu customs needed to come from the legislature. Prior to the
legislature's becoming representative, British policy urged avoiding legislation that directly
affected the personal law of Hindus. Nonetheless, the legislation stream introducing
innovations that were often influenced by English legal notions steadily grew. When
considering the impact of English law and equity on Hindu law, one must not overlook the
impact of Hindu beliefs on Englishmen who served in India.4

Since court proceedings in India were mostly conducted in English, and Hindu law was
recognized as a legal system in 1864, many judges had to rely on English translations of the
Hindu jurists' writings.5 The judges' lack of comprehension of the original writers' style of
writing resulted in errors and misunderstandings in the translations. This created a risk that
certain terms might carry inappropriate connotations within the Hindu system. Although it is
not inaccurate to refer to a Dayabhaga coparcener as a "tenant-in-common," using the same
term for a Mitakshara coparcener is misleading since they do not hold in "joint-tenancy" as
per the English law definition. The adaptation of Hindu law has been necessitated by
statutory provisions, including English procedural law and its execution rules, which have
had a significant impact on the early Company's courts in Madras and Bombay, which were
well-liked by Indian litigants. Although the English law of real property was not introduced
to India, the statute laws concerning marriage, transfer of property inter vivos and by will,
and succession, originally created for people not governed by Hindu or Muhammadan law,
disseminated ideas that were attractive to the Hindu. To date, Indian independence has not
affected the law's evolution's course; in fact, the British period's development in India appears
to have accelerated it. The principles of common law and equity have influenced several
aspects of Hindu law, some of which has been discussed below.

4
Derrett, J.D.M., 1961. The administration of Hindu law by the British. Comparative Studies in Society and
“

History, 4(1), pp.10-52.
5
Rocher, R., Lubin, T., Davis, D.R. and Krishnan, J., 2010. The creation of Anglo-Hindu law. Hinduism and
Law: An Introduction, pp.78-88.”

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THE INFLUENCE OF COMMON LAW AND EQUITY ON HINDU LAW

The law of the Joint Family

In the area of British India where Hindu law governed legal cases, the law of the Joint Family
was crucial and all other aspects of the law were subservient to it. The Joint Family law
originated from the patriarchal family structure where the patriarch had property rights that
were recognized by external authorities. Over time, it evolved into a corporation known as
the coparcenary, which included agnate males with fluctuating interests in the joint family
property based on births and deaths. Until the family was divided, an agnate member's
interest in the property was undefined, as it was acquired at birth and passed to the other
coparceners upon their death through survivorship.6

The Mitakshara school, which governed most of India, held the position described earlier,
whereas in Bengal, the Dayabhaga school did not give the son any rights to his father's
property during his lifetime.7 In Bengal, inheritance to separate property followed the same
rules as devolution. When a family divided, the male coparcener became the sole owner of
his share, and family loyalty was the only thing preventing him from claiming it. Bengal went
even further than the rest of India in acknowledging separate property rights. It has been
suggested that the influence of the Anglo-Indian legal system on Mitakshara joint family law
has caused it to deviate so far from its original form that it would be best to do away with it
entirely.

In broad terms, “the proposed draft Hindu Code seeks to apply the rules of the Dayabhaga
joint family throughout India. Under Hindu law, a man is required to pay his debts, and
failure to do so is punishable in the afterlife. However, English law has effective procedural
measures to force payment in this life, including the seizure and sale of rights and interests
that can be realized to pay off a debt. A judgment-creditor can also sell off the debtor's
separate and personal property to settle the debt, which resolves the conflict between the
creditor's right to be paid and the other coparceners' right of survivorship.8 In 1877, the Privy
Council made this law applicable throughout British India. Two years later, the same tribunal

6
Dewey, C., 1972. Images of the village community: a study in Anglo-Indian ideology. Modern Asian
“

Studies, 6(3), pp.291-328.
7
Halder, D. and Jaishankar, K., 2008. Property rights of Hindu women: A feminist review of succession laws of
ancient, medieval, and modern India. Journal of law and religion, 24(2), pp.663-687.
8
Gledhill, A., 1954. The influence of common law and equity on Hindu law since 1800. International &
Comparative Law Quarterly, 3(4), pp.576-603. ”

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ruled that even if the creditor attaches the debtor's property, it would still defeat the other
coparceners' right of survivorship if the debtor dies before the execution sale.”

In the latter case, the Privy Council recognized the established practice, which was contrary
to Mitakshara law, and sought a principle to explain it.9 The tribunal stated that the practice
was based on the equity that a purchaser for value had to assume the rights of their vendor
and resolve disputes through partition. In the former case, the Board drew a comparison
between the position of a coparcener and that of a partner. However, attempts to extend this
analogy led to the Indian Partnership Act10 which laid down that coparceners are not partners.

Courts in Bombay, Madras, and Madhya Pradesh have accepted this view that the Mitakshara
“

law cannot be further extended by deductive reasoning. However, in other parts of India,
courts have held that this inroad cannot be pushed any further. Attempts to extend this
principle to the case of an alienee under a voluntary alienation for value have failed, as the
Privy Council refused to go beyond what had been established by the Indian courts. The
Board has suggested a distinction between an attachment in execution and a voluntary
conveyance, stating that the former creates a lien or charge in favor of the judgment-creditor. ”

During the British colonial period in India, Hindu families were increasingly starting new
“

businesses, but the Privy Council ruled that a manager could not force a minor coparcener to
take on the risks and liabilities of a new business under the Mitakshara law. The Indian courts
tried to find ways around this restriction by allowing joint family property to be used to raise
funds for a new business if it benefited the family, and by limiting what constituted a new
business. This restriction placed joint family businesses at a disadvantage compared to other
forms of business and led to the breakup of joint families. The Dayabhaga law, which was
more favorable to individual acquisitions, held that a coparcener's acquisitions could not be
considered joint family property unless joint family property was used to make the
acquisition. In 1877, the Privy Council approved the Bengal view that coparceners who
received education at joint family expense were not barred from acquiring separate property.
In 1882, the Bombay High Court ruled that a subordinate judge's savings were separate

9
Gledhill, A., 1954. The influence of common law and equity on Hindu law since 1800. International &
Comparative Law Quarterly, 3(4), pp.576-603.
10
Indian Partnership Act, 1932.

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THE INFLUENCE OF COMMON LAW AND EQUITY ON HINDU LAW

property, even if they were earned using skills acquired while working as a lawyer's clerk, as
long as the family did not pay for the training. 11” ”

The 1937 Hindu Women's Rights to Property Act, which was not initiated by the government
“

and impacted Hindu law, grants a Mitakshara coparcener's widow equal claim to joint family
property as her deceased husband, along with the ability to divide it. However, her right to
dispose of the estate is limited, similar to that of a manager, and it becomes her property upon
her death.

Although the effort to improve the situation of widows through the Hindu Women's Rights to
Property Act is commendable, it goes against Mitakshara principles. It is worth noting that
the Nagpur High Court cited this Act in a recent decision that a woman could be a joint
family manager, but the Madras High Court, with its strong adherence to Mitakshara, was
greatly alarmed by this decision. Overall, English law has hastened the expansion of separate
property, increased the transferability of rights in joint family property, and encouraged
partition.12 The rules of joint family law now only apply to a limited extent to more educated,
politically aware Hindus, who seem inclined to further limit their application. Despite their
current dominance in politics and leadership, these groups do not represent the majority in
India, and there is a possibility of a backlash or reorientation of policy in the future. ”

Marriage and Divorce

According to the texts, marriage is a sacrament, complete and irrevocable at the conclusion
“

of the rites; the wife was often married as a child, and remained with her parents until
puberty.13 Its prescribed purpose was to ensure the perpetuation of the family name and the
family worship; polygamy was therefore recognised. ””

The British introduced laws that were more favorable to women of different religions, but the
most significant changes have been made through recent legislation initiated or supported by
Hindus themselves. When the British first took over political control in India, the practice of
sati (widow immolation) was still prevalent. Despite initial reluctance to intervene in
11
Beaudry, J.S., 2013. The Empire's Sentinels: The Privy Council's Quest to Balance Idealism and
“

Pragmatism. Birkbeck L. Rev., 1, p.15.

12
Chatterji, J., 2002. Bengal divided: Hindu communalism and partition, 1932-1947 (No. 57). Cambridge
University Press.
13
Chandrika, M.P., 2012. Ceremony and Valid Marriage among the Hindus-A Dichotomy. International
Journal of Law and Legal Jurisprudence Studies, 2(3), pp.4-5.”

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THE INFLUENCE OF COMMON LAW AND EQUITY ON HINDU LAW

religious and family matters, the British eventually prohibited the practice. In 1856, the
Hindu Widows' Remarriage Act14 legalized widow remarriage but deprived widows of
inheritance rights and guardianship of their deceased husbands' children, which could be
challenged by their relatives. The Indian Succession Act of 1856, applicable to all except
Hindus, Muslims, and Parsees, granted widows better rights to intestate succession based on
English principles. The Special Marriage Act of 1872 introduced a system of marriage among
a small but influential Hindu sect called Arya Samaj, which required consent from both
parties, did not place the wife under the husband's power, and allowed for divorce in cases of
serious marital issues. This act was passed to enable members of the sect, who had adopted
some Western beliefs, to marry without following traditional Brahmanical rites.

Legislation passed by both the British and the Hindu community has improved the rights of
“

women in Hindu marriages. The Hindu Marriages Validating Act 15 made it possible for inter-
caste marriages to be legally recognized, while the Sharda Act 16 criminalized child marriages.
The Hindu Married Women's Right to Separate Residence and Maintenance Act 17 entitled
wives to separate maintenance and residence in certain situations, such as if the husband
takes a second wife, is guilty of cruelty or desertion, or has a loathsome disease. Other acts,
such as the Bombay Prevention of Bigamous Marriages Act18 and the Bombay Hindu Divorce
Act19, make second marriages by husbands while their previous wives are living void and
punishable by law. The Hindu Women's Rights to Property Act 20 also improved the position
of widows, allowing them to inherit an equal share of their husband's estate. In 1948, the
draft Hindu code proposed further progress in improving the rights of women in Hindu
marriages by allowing civil and sacramental marriage for all Hindus without affecting their
personal law. The code also aimed to simplify and clarify the prohibited degrees for
sacramental marriage, make child marriages voidable, and introduce provisions for divorce.
The Hindu Marriage and Divorce Act of 1952, which deals with only sacramental marriage,
retained many of the provisions of the code of 1948 while preserving the existing law on

14
The Hindu Widows' Remarriage Act 1856.
“

15
Hindu Marriages Validating Act, 1949.
16
Sharda Act, 1929.
17
Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946.
18
Prevention of Bigamous Marriages Act, 1946.
19
Divorce Act, 1947.
20
Hindu Women's Rights to Property Act, 1937.
”

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matters not covered in the act and allowing for greater scope for custom. A separate bill was
proposed to deal with civil marriage. ””

Influence with regard to laws of adoption.

The ancient law developed various devices for the perpetuation of the family name and
“

worship, when marriage failed to achieve that object, but, of these, adoption alone survived at
the commencement of the British period. Not only may a sonless man adopt, his widow may,
in most parts of India, adopt in his name, after his death, subject to conditions which vary in
different parts India. The motive for adoption may, in part at least, be secular, and, when it is
done by a widow, who cannot be compelled to adopt, it may even be to spite reversioners. 21” ”

Inheritance and coparcenary rights

The rules of inheritance in Hindu law are complex and vary depending on the specific school
of law that is followed. Mitakshara and Dayabhaga are two of the most well-known schools
of Hindu law that have different principles regarding inheritance. In Mitakshara law, the
principle of agnatic succession is followed, which means that the nearest agnate (male blood
relative) inherits the property. However, there are exceptions to this rule, and widows,
daughters, and their sons are also recognized as heirs. Other cognates (relatives through
females) are not considered until the agnates to a remote degree have been exhausted. The
duty of offering oblations for the spiritual benefit of the deceased falls on the heir. 22 On the
other hand, in Dayabhaga law, the main principle is that the heir who can confer the most
spiritual benefit upon the deceased by his oblations is the preferential heir. The oblation to the
maternal grandfather is recognized for this purpose, and it is less efficacious than an agnate's
oblation. This system also introduces cognates earlier than Mitakshara law, which means that
relatives through females have a better chance of inheriting. Both Mitakshara and Dayabhaga
law apply only to separate property, which is property that is not shared by the joint family.
Joint family property has its own set of rules under both systems, but the Dayabhaga law is
said to be more certain and free from uncertainties compared to the Mitakshara law.23

21
Derrett, J.D.M., 1969. Comments with Reference to Hindu Law. E. Afr. LJ, 5, p.21.
22
Vencatachariar, S., 1912. Survivorship in Hindu Law-I. Allahabad LJ, 9, p.1.

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THE INFLUENCE OF COMMON LAW AND EQUITY ON HINDU LAW

The British “government in India generally adhered to the principle of non-interference in

matters of personal law, including the Hindu law of inheritance. As a result, the influence of
English law upon Hindu inheritance law was mainly indirect. Under Hindu law, the possible
heirs of a Hindu who dies intestate include individuals in degrees of relationship that are far
more distant than any Western system of law would tolerate. However, attempts to narrow
the field of heritable relationship were not likely during British rule due to the experience of
Lord Dalhousie's doctrine of lapse, which allowed the British government to claim princely
states that lapsed on the failure of natural heirs. 24” However, in the twentieth century, with the
establishment of a democratic government and the need to establish a welfare state, there has
been a move to limit the degrees of relationship within which rights of inheritance are
recognized. The Hindu Code Bill proposed considerable changes to Hindu inheritance law,
including limiting the degrees of relationship recognized for inheritance purposes. 25 It is
worth noting that the statutory amendments to the Hindu law of inheritance during the British
period were not inspired by the British government but were promoted by Hindu legislators
who were influenced by English law through the medium of the Indian codes.

The Women's Rights to Property Act26, which applies to all schools, grants widows the same
“

inheritance share as a son, and the son's widow receives the share of a grandson or son
depending on whether or not there is a surviving grandson. This legislation represents a
departure from the idea of the joint family and instead establishes a new social unit consisting
of the husband, wife, and their children, with inheritance rules based on the degree of
affection between the deceased and the heirs, regardless of gender. ”

It's worth noting the change in the interpretation of a bequest to a Hindu female, as the Indian
“

courts have attempted to limit the scope of the limited estate rule, which was previously
applied to devises of immovables by husbands in favor of their wives. However, since 1929,
the Succession Act has been amended to provide that when property is bequeathed to any

23
Carroll, L 1983. Law, custom, and statutory social reform: the Hindu Widows' Remarriage Act of 1856. The
“

Indian Economic & Social History Review, 20(4), pp.363-388.

24
Iyer, L., 2010. Direct versus indirect colonial rule in India: Long-term consequences. The Review of
Economics and Statistics, 92(4), pp.693-713.
25
Chaudhary, P., 2016. Hindu Code Bill: Towards Liberation of Women. Contemporary Voice of Dalit, 8(2),
pp.153-162.
26
Women's “Rights to Property Act, 1937.”

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person, they take an absolute estate unless the will indicates that a restricted interest was
intended, which also applies to Hindu females. 27 ” ”

Conclusion
Hindu law, also known as Dharmasastra, is a complex legal system that has evolved over
thousands of years and is deeply rooted in Hindu traditions and customs. Common law and
equity, which developed in England, have had some influence on Hindu law, although this
influence has been limited. One area where common law has influenced Hindu law is in the
development of the doctrine of precedent. Like common law, Hindu law recognizes the
importance of prior court decisions in guiding future judgments. However, unlike common
law, Hindu law has not developed a formal system of precedent, and the weight given to prior
decisions can vary depending on the circumstances of the case. Equity, which developed in
English law to supplement the rigid and sometimes harsh rules of common law, has had a
limited impact on Hindu law. This is because Hindu law already contains a number of
equitable principles, such as the duty of a son to support his aging parents and the obligation
of a husband to provide for his wife. Another area where common law has influenced Hindu
law is in the adoption of certain procedural rules, such as the requirement of proof beyond a
reasonable doubt in criminal cases. However, many aspects of Hindu law, such as the use of
caste as a determinant of legal rights, are unique to the Hindu legal system and have no
counterpart in common law or equity. Overall, while common law and equity have had some
influence on Hindu law, the two legal systems remain fundamentally different in their
underlying principles, values, and traditions.

Looking at the social impact, English law has had a significant effect on Hindu law by
initiating a process that has gradually replaced the joint family with the household unit
consisting of the husband, wife, and children. This shift has also led to the recognition of
separate property rights and the increasing emphasis on equality between genders,
particularly in terms of partner choice and women's rights. While Hindu law was initially
intended to cater to wealthy families, it is now more aligned with the needs of the
intelligentsia. However, the draft code of 1948 faced opposition from the dominant political
class, leading to the deferral of complete uniformity. Nevertheless, a significant degree of

27
Deininger K., Goyal, A. and Nagarajan, H., 2010. Inheritance law reform and women's access to capital:
“

evidence from India's Hindu succession act. World Bank Policy Research Working Paper, (5338). ”

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uniformity has been achieved through case-law, and the future introduction of legislation will
likely enhance this further, leading to a uniform personal law for India. The Indian
Constitution's directive principles seek to ensure a uniform civil code for all citizens, which
has been criticized for potentially infringing on religious freedom. However, proponents
argue that religion must be limited to its proper sphere, and personal law should be unified to
promote national unity and consolidation.

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