REVIEWS

A CRITIQUE OF MODERN HINDU LAW. By J.D.M. Derrett, D.C.L. (Oxon),

Ph.D. (Lond), Professor of Oriental Laws, University of London.
N.M. Tripathi Pvt. Ltd, Bombay. 1970. Pp. xlviii+460. Rs.35.
The book under review is a unique contribution in Indian law for
it cuts a new ground in the study of Hindu law. The leading writers on
Hindu law, namely, Mayne, Mulla, Raghavachariar and even Derrett,
have thus far pursued the same beaten track of presenting the principles
of Hindu law, as evolved through labrynthine case law, in their dharma-
shastraic background together with the legislative changes effectuated
from time to time. Even though their works have served the bench and
the bar with rare celebrity, it is irrefutable that these writers did not under-
take a critcal evaluation of the developing case law.1 The reason, however,
is not difficult to surmise. The pragmatic lawyer to whom these works
are essentially meant merely needs legal propositions properly marshalled.
For him the elaborate shastraic background is redundant2. Much less is he
concerned with the research intended to assess the current legal development
in the light of furthering the welfare and the values of the society. Down
to the earth attitude of the contemporary Indian lawyer has been aptly
summed up by Derrett :
Their ethical and intellectual stand point finds it nadir in 'Mulla'.
In order to win cases you must tell the judges of decisions which
decide the point in your favour or which, if used as a close
analogy, would persuade a rational man to decide your case
in your favour. So text books put together conveniently and
with excellent indexes the 18000 to 20000 surviving major judicial
authorities (not completely nor exhaustively), as a sort of lucky
dip, in which the practitioner may find fairly quickly the pre-
cedents which he needs.3
The lawyer is seldom concerned with the repercussions of the decisions
in whose making he has participated. He assumes that his function ceases
no sooner he wins or loses the case in hand. Such an attitude of un-
concern about the prospective legal trend among the participants in the

1. Even where criticisms are forthcoming, they are, as remarked by Derrett, 'purely
technical'. Derrett, A critique of Modern Hindu Law 10 (1970) (hereinafter referred to as
Derrett) See also enlightening but technical criticisms on 'anulcma' marriages. Mayne.
Hindu Law and Usage 168-172 (1953 ed.) and 'bandhu' succession. Mayne at 627-629.
2. It may be for this reason that Mulla's book with little shastraic material is moor
popular among the practitioners than Mayne's book.
3. Derrett at 10,
444 JO URNAL OF THE INDIAN LA W INSTITUTE [Vol. 14:3

decision-making process has to be attributed to the inadequate legal

training they received as students of law. Thanks to the renasisance that
is taking place in the Indian legal education as men of law, be they judges,
lawyers, or law teachers, are realising that law, while paving way for the
resolution of the conflicts between the immediate parties, should also further
the values which society stands for. To play 1 is role effectively, the
legal scholar has to keep a critical eye upon the developing case law and
evaluate the same with a view to influence the prospective legal trend.
It is, therefore, refreshing to notice that a leading writer of Derrett's standing
has brought out this book with the aforesaid objective.
During the last seventy years, numerous research papers and mono-
graphs have appeared in the field of Hindu law and quite a number of
them are critical evaluations of the various rules of Hindu law as developed
through case law.4 But a comprehensive critique dealing with the whole
range of Hindu law was unknown. Therefore, the appearance of this book,
especially at a juncture when the provisions of the * Hindu Code' are
passing through careful judicial scrutiny, is indeed timely.6 This publica-
tion is of special significance to the proponents of the uniform civil code
for it gives an opportunity to set the statutory Hindu law in the right direc-
tion for without which, as the learned author states : "Hindus will not have
the confidence to amend their compatriots' laws if they are uncertain about
the drift or direction of their own".6
It must be emphasised at the outset that the book is not a haphazard
collection of criticisms made by the author on various topics of Hindu
law, but it is a coherent collection of results arrived at by a systematic
investigation of various branches of Hindu law. The author has tested
diligently every topic he lays his hand upon, on the basis of certain funda-
mental principles which he has formulated in the beginning of his work.
One may agree with the author or not on the relevance of some of these
fundamental principles in contemporary India, but the reader will not
fail to notice that the author has applied his touchstone consistently
throughout the treatment of diverse topics he has handled.
To put Derrett's book in proper perspective, it is necessary to make
a few remarks about the perennial conflict of Hindu mind and the dichotomy
of Hindu life. Much has been said about the gap between the practice
and the precept in Hindu life and the apparent contradictions in the utter-
ances of a Hindu on any aspect of life, both of which have been utilized

4. Derrett has compiled an extremely useful list of books and research papers in
the field of Hindu law under the Bibliographical Introduction to Legal History and
Ethnology Series edited by John Glissen. See J.D.M. Derrett, Indian Subcontinent Under
European Influence, Editions de Vlnstitut de Sociologie (fonde par Ernest Solvay),XJn\\ersi\y
Libre de, Bruzelles, 1969.
5. The expression 'Hindu Code' is used to denote compendiously the modern Hindu
law enactments. See Derrett at 9 and also Derrett, Introduction to Modern Hindu Law
7 (1963).
6. Derrett at 1.
1072] REVIEWS 445

by various writers to project him as a hypocrite or a person with a

schizophrenic personality. Some of the western litterateurs like Nai Paul
as also many of the Indo-Anglian writers like Nirad Chaudhary and his
ilk have regaled the western readers by creating a lot of derisive literature,
the central theme of which is the split personality of a Hindu. It is only
a keen and sympathetic mind like that of Derrett which could see through
the apparent contradictions in Hindu life7. The great mass of Hindu
religio-ethical literature places before a Hindu an ethereal ideal and goads
him to strive for its attainment. As the learned author puts it :
Whatever may go on upon the surface, and however people
may direct their lives, the old laws of duty in their essence, the
the old tensions between the desire to be righteous and
temptation to be unrighteous the pull upwards of the command-
ment to act without desire and to know and seek absorption in the
self, these remain.8

Therefore, the apparent conflict in the personality of a Hindu, inconsistencies

in his utterances, and his hypocritical stance on various matters of life are
nothing but the projection of the conflict that is going on in his mind.
Had the Hindu no such ethereal ideal before him, he would have led as
realistic a life as his counterpart in any other part of the world.
Before proceeding further, it is necessary to make a few observations
regarding the fundamental principles the author has formulated in chapter
two of his work. The reviewer has to proceed with certain degree of hesitancy
while commenting upon these fundamental principles on account of the
remarks of the learned author : "Some readers misliking my conclusions,
may reject my principles : there will (I suppose) be little harm in that,
provided they can propound principles of their own more in keeping with
India's needs."9 The reviewer would therefore like to state that the
following observations are prompted more by the doubts he entertains
regarding the utility of some of these principles in the immediate content
of this country than due to his misliking of any of them. For instance,
no body could disagree with the learned writer regarding the principles
that (7) it is essential that law should be capable of being known; 10 (w) law
must be capable of being foreseen;11 (7/7) law should enable rather than
disenable;12 and (iv) law should favour termination of disputes13. There-
after, Professor Derrett lays down two more fundamental principles that
(v) law should correspond to facts14 and (yi) the courts must treat the parties

7. Id. at 12, 13.

8. Id. at 6.
9. Id. at xiii.
10. Id. at 24.
11. Id. at 25.
12. Id. at 26.
13. Ibid.
14. Ibid.
 446 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 14 : 3

for what they are.15 These two principles are prima facie irrefutable.
Their tenability, however, has to be examined in the context of the pro-
visions of the 'Hindu Code'. The 'Hindu Code' has, for instance, incorpora-
ted consistently the idea of equality of sexes in various provisions. Whether
it is husband and wife in matrimonial law, or son and daughter in the law
of succession, they are on the same footing. We may now turn our atten-
tion to the question whether law corresponds to facts by taking an example
from the law of succession. Where a person dies leaving behind some
male and female heirs, say, sons and daughters, they are entitled, under
the relevant provisions of the Hindu Succession Act, 1956, to inherit equally
the property of their father. Despite the absence of authentic data regard-
ing the number of daughters who are claiming their shares in the paternal
estate, it may be stated without fear of contradiction that their number is
infinitesimally small. It may be due to the strong filial feeling the sister
has towards her brother or her hesitation to seek a share from her brother
or due to the reluctance of the parties to settle the matter in the courts in
the event of a brother refusing to part with a share. Whatever might be
the reason, the community has ignored the provisions of the Hindu Succes-
sion Act. The reviewer is sure that, in spite of such a situation, even
Derrett would not suggest that we should scrap off the rights of the daughters
and go back to the days of the shastras to make the law conform to the
facts. Another conspicuous example which betrays the gap between the
provisions of law and the practice of the community is the rule relating to
the age limits under the Hindu Marriage Act, 1955. While the Hindu
Marriage Act lays down the minimum age limits for marriage16 and pro-
vides for penalties for their contravention17, a large number of child
marriages are taking place all over the country with impunity thereby
making a mockery of the legal provisions. The law cannot certainly
retrace its steps and legalise the practice of child marriage. In such
matters the courts cannot but give effect to the legal provisions despite the
wide gap existing between the prevailing legal provisions and the practice
. of the community. The gap between law and fact could be bridged only
by moulding the social attitudes a process which involves numerous non-
legal factors. It may therefore be submitted that when an age-old society
is casting off its traditions and norms and the social change is initiated
through legal change, the gap between law and practice is inevitable.
Indeed the community has to be educated and persuaded to accept the
new set of values accompanying the legal change even though it may appear
like putting the cart before the horse and well nigh impossible. The
reviewer would have been happy if Derrett had suggested ways and means
to bridge the gap between law and fact.
Tne aforesaid discussion obviously leads us to the ancillary question
to what extent the modern Hindu law enactments have retained the shastraic

15. Id. at 29.

16. The Hindu Marriage Act, 1955, s. 5(iii).
17. Id. s. 18(a).
1972] REVIEWS 447

mores. The 'Hindu Code' inspired by western legal thought has jettisoned
the dharma-shastras lock, stock and barrel to the chagrin of the orthodox
Hindus. Various provisions of the 'Hindu Code' which are based on
social values different from those embodied in the shastras and followed
by the community often pose serious dilemma to the judge. Should he
take guide-lines from the prevailing social values of the community which
are based on the shastras or turn to reason, logic and utility ? Undoub-
tedly one will be inclined towards the former than the latter. But there
is no gainsaying that looking at the modern legislative provisions in the
shastraic canvas would amount to rank anachronism and lead to curious
results. However difficult the latter course might be, we have to pursue
it, if a coherent legal system has to emerge out of the present ferment.
The reviewer has grave doubts about the tenability of another funda-
mental principle. Derrett lays down as a general principle that law should
facilitate the moral principles of the nation18 and with special reference
to the Hindus, he states that (/) spiritual aspirations must be respected,
(77) altruism must be fostered, (Hi) sense of responsibility must be encouraged,
(iv) service and humility must be rewarded, (v) oppression and exploitation
must be restrained and (vi) within the limits mentioned above individualism
must be encouraged19. The learned author states that "law must recognise
the Hindus' acceptance of the two main paths as equivalent in religious
terms, namely, the karma and the bhakti paths to salvation (moksha)".20
He emphatically declares that :

[A]ny legal rule which hinders the spiritual development of the

personality is wrong...but one which aids him in achieving his
liberation in good faith through his own deliberate choice is
manifestly right.21

Before attempting an examination of the intricate relationship

between law and morals, it may not be inapt to make a few observations
about Derrett's approach to the study of Hindu law. Derrett with his
profound dharma-shastraic scholarship is intuitively drawn towards the
mores of the shastras. The remark of the learned author regarding the
working of the Hindu mind that "the ideas to be found in the shastra are
abandoned on the surface, but the attitude of mind and the conception of life
remains the same" admirably fits into the working of Professor Derrett's mind
too. 22 Even though he apparently reconciles himself to the abandonment
of the dharma-shastraic law, Derrett feels convinced of the efficacy of the
shastrdic approach for solving the problems of the Hindu society and such
an attitude conditions his treatment of various topics of Hindu law.

18. Derrett at 28.

19. Id. at 44.
20. Id. at 37.
21. Ibid.
22. Id. at 25.
 448 JOURNAL OF THE INDIAN LA W INSTITUTE (Vol. 1 4 : 3

A thorough investigation of the complex law-morals relationship

is beyond the purview of this review. We could at best look into the
question as to what extent law could countenance the morals in the adminis-
tration of Hindu law, especially in the context of the ultimate objective of
evolving a uniform civil code. Law shorn of all its verbiage may be
defined as a set of rules meant to regulate human action with the exclusive
objective of promoting the temporal welfare of the community in which
the welfare of the individual is also involved.23 Morality, on the
other hand, may be defined as a standard evolved by a community
which touchstone the conduct of an individual and judged by that
community to be ethically right 01 wrong. In the modern society a
large number of rules of law are morally neutral. Where the rules of
law and the rules of morality coalesce as under the dharma -shastras, it
is all the better. But where the rules of law conflict with the rules of
morality, the former will preponderate over the latter. A few examples
having relevance to Hindu law may be taken to illustrate this point. If
a creditor sleeps over his rights, he would lose his legal remedy no sooner
the period of limitation expires, even then, morality expects the debtor to
repay the loan he has taken. A Hindu wife may, for instance, obtain divorce
if her husband is suffering from leprosy24 and such an act is perfectly legal;
but from the moral stand point her act may be reprehensible, for that is the
time when her husband requires maximum solace.25 In the coming years
law may be enacted legalising abortions with a view to contain the popu-
lation explosion is this country. Such a provision of law, when enacted,
would be morally repugnant to the Hindus for 'bhrunahatya* is one of the
very grave sins under the shastras?* We may thus have any number of
examples where modern law cannot take cognizance of the moral values of
society. The reviewer, is therefore, doubtful whether the law as admini-
stered in this country could in any way facilitate the Hindus in realising their
spiritual aspirations and in furthering their moral values.
Derrett's concern for the moral values of the Hindu community
is typical of the dharma-shastrVs approach to the subject. Law, as stated
above, aims at securing the community welfare in which, of course, the
welfare of the individual is also involved. But if the regulation of human
action is required to achieve individual welfare exclusively, then it goes out
of the purview of law proper. On the contrary, the dharma-shastras are
equally solicitious of the individual welfare as well as the community welfare
both when they are exclusive as also when they are interdependent. Indi-

23. B. N. Sampath, Source Material on Family Law, 323 Banaras Law School.
1968 (unpublished).
24. Supra note 16 s. 13(/v).
25. The Hindu mythology teems with passages which exhort the wife to take care
of her husband even under such circumstances.
26. It is deemed to be more heinous than killing a Brahmana. Kane, IV History
of Dharma Sastra 10-11 (1953). See also III Shabda Kalpa Drum 560 (Chowkamba 1967).
1972] REVIEWS 449

vidual welfare and community welfare are mostly like concentric circles;
but even where they are not, and cover different areas, the dharmashastras
take care of them. The shastras are as much concerned with the ablutions of
the individual which have no relevance in so far as the community is concerned
(except perhaps in a very remote and far-fetched way, if it may be stated that
the ablutions put the individual in a proper intellectual and physical gear,
which indeed helps the community indirectly) as with the duty of the king
to punish the offenders. But the more pronounced and basic difference
between the shastraic approach and the modrern legal approach lies in the
categorisation of welfare into two classes, namely, the temporal and the
spiritual. Shastras, it may be emphasised, do not dichotomise welfare into
these two insulated categories. Dharma is the general policy which aims
at the synthesis of the temporal and the spiritual welfare of the individual.
Derrett, with his profound involvement in the shastras, is unable to
eschew this approach of the shastras while examining the modern Hindu
law problems. Positive law as administered in modern Indian courts cannot
show any indulgence towards the furtherance of the moral values of the
community except to the extent these values are embodied in the legal pro-
visions themselves.
Derrett's advocacy for judicial endeavour to further moral values
of the Hindus while interpreting the provisions of the 'Hindu Code' encoun-
ters another formidable objection. There can be no two opinions about the
fact that there exists variance in the ideas and standards of morality,
often times incompatible, among the various communities in India. 27
Derrett rightly agrees in the beginning of his work that the objective of uni-
form civil code enshrined in article 44 of the Constitution will have to take
a concrete shape in the near future.28 As he correctly foresees "when that
comes into being, it will be based firmly in the then state of Hindu law, the
personal law of the majority." 29 The preoccupation of the 'Hindu Code'
in furthering the moral values of the Hindu community would prevent the
code from playing its intended role of forming the nucleus of the future
uniform civil code. It may even become a stumbling block in achieving the
uniformity, for, any involvement of the 'Hindu Code' with the moral values
of the Hindu community would further draw it into the interstices of Hinduism
thereby putting an end to the role which it is expected to play in modern India.
For building a composite legal structure, it is imperative that law should take

27. The ideas of morality may be diametrically opposite any two communities. For
instance, a marriage between a person and his father's brother's daughter is deemed to be
grossly immoral and almost unthinkable among the Hindus. But such a marriage is not
only proper but also highly commendable among the Muslims. The provision made for
one's own descendants ad infinitum under the wakfalal-aulad is the highest from the piety
for a Muslim, but for an European judge handling such a case, it is a mere devic to pro-
mote family aggrandisement. See Abdul Fata Mahomad v. Russomoy Dhur Chowdhry
(1894) 22 LA. 76.
28. Derrett at 1.
29. Ibid.
450 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 14 : i

a neutral stance regarding moral values and leave it to the religion to take
care of the moral and the spiritual welfare of the community.
After formulating the fundamental principles in chapter two, the learned
author has taken up the study of joint Hindu family (chapter 3) followed by
adoption (chapter 4), partition (chapter 5), guardianship (chapter 6), the
property rights of women (chapter 7), testamentary and interstate succession
(chapter 8), marriage and divorce (chapter 9) and religious endowments
(chapter 10). Apart from the conclusions given in chapter 11, the book
has four interesting appendices. In each one of these chapters the learned
author has chosen various controversial topics and has treated them with
great erudition. Though the reviewer is tempted to examine the various
topics thread-bare he has to restrain himself for otherwise the review would
tend to be a miniature critique. Derrett has his own reason for deal-
ing with the various topics in the above order30 but the reviewer prefers to
begin his comments with marriage followed by adoption, guardianship and
other topics, the order to which the readers in Hindu law are accustomed.
In the chapter on marriage and divorce, Derrett is rightly cautious
against drawing upon English experience, for it is an area which is next only
to constitutional law wherein the courts tend to refer to the English and the
American case law. Numerous cases on matrimonial law reveal that
frequent references to English cases are made as an exercise injudicial pedan-
try than for their utility in adding the resolution of Indian matrimonial
disputes. Indeed, references to foreign case law may even be misleading
for, as Derrett puts it succinctly that "Indians do not marry, nor stay
married for the same motives as operate in western Europe."31 We may
add with equal force that 'Indians do not litigate for the same reasons as in
west.' Matrimonial litigation is often indulged in this country to 'punish or
disgrace the other party' and it may be a mere outlet for inter-familial feuds.
As the learned writer states that "the local notables realise that the nullity
petition pending between A and B is really based upon the legend that B's
great grandfather pushed A's great grandfather into a tank in 1895. The
vital fact will appear nowhere in the pleadings."32
Derrett's comments on the ceremonies of marriage and intention to
marry are well founded. But the absence of civil marriage provision under
the Hindu Marriage Act, 1955, a desideratum which needs to be looked into
by Parliament, has escaped the notice of the learned author. Hindus
who might be agnostics or who do not believe in Hindu sacerdotalism have
no choice but to get their marriage solemnized under the provisions of the
Special Marriage Act, 1954. But unfortunately, the Special Marriage Act
puts those Hindus marrying under its provisions out of the purview of the
various provisions of the 'Hindu Code',33 and the parties may not be pre-
pared for such consequences depsite their non-subscription to Hindu
30. Id. at 52.
31. Id. at 293.
32. Id. at 295.
33. See the Special Marriage Act, 1954, ss. 19, 21.
1972] REVIEWS 451

theological ideas. It is no secret in the Indian society that the 'court marriage'
(the inept expression used by the lay people to denote the civil marriage)
or the 'registered marriage' carries with it an odious connotation and the
orthodox sections of Hindu community never spare an opportunity to
express their hostility towards this provision on the ground that it militates
against the shastraic or customary marriage. Such an attitude of the
Hindu community might have dissuaded the framers of the Hindu Marriage
Act from including a chapter on civil marriage. It is, therefore, high time
that the present Parliament which is not obsessed by any such notion should
add ? chapter on civil marriage to the Hindu Marriage Act.
Derrett's remarks regarding the practice of child marriage neatly
reveals the gap that is existing between the legal provisions and social
conformity, but his remark that the things may be allowed to drift in the same
uncertain direction sounds despondent.34 The reviewer has suggested
elsewhere the socio-legal measures that could be taken for eradicating the
practice of child marriage.35
The reviewer was pleased to note in the preface36 that Derrett
has reconciled himself to the abolition of polygamy, but his remarks in the
later part of the book still indicate that his sympathies are with the poly-
gamous provisions of the traditional Hindu law.37 It may be that in spite
of the prescription of the rule of monogamy,38 thousands of bigamous
marriages are taking place clandestinely with or without the connivance of
the first wife. However, it may be observed that despite such infractions,
the rule of monogamy has been widely welcomed by the Hindu society and
given a fair trial and the rule would facilitate the emergence of a healthy
matrimonial regime.
A significant question which arises in relation to the rule of monogamy
is whether the first wife could obtain an injunction against her husband
preventing him from contracting a bigamous marriage. There is a conflict
of judicial authority on this point.39 Derrett holds the view that such
an injunction should be made available to the wife.40 It may, however, be
pointed out that the stand taken in Uma Shankar Prasad Singh v. Radha
Devi*1 wherein the court refused to grant such an injunction under the pro-
visions of the Hindu Marriage Act, is more logical than Shankarappa v
Basamma*2 where the wife was given such a relief under the provisions of the
Specific Relief Act, 1872. The validity of Uma Shankar Prasad Singh's

34. Id. at 306.

35. See B.N. Sampath, Marriageable Age, Consent and Soundness of Mind in
Indian Matrimonial Law: A Plea for Rationalization 5 Ban. L.J. 28-51 (1969).
36. Derrett at XVI.
37. Id. at 309, 338.
38. Supra note 16 s. 5(1).
39. Shankarappa v. Basamma, A.I.R. 1964 Mys. 247; Umashankar Prasad Singh v.
Radha Devi, A.I.R. 1967 Pat. 220.
40. Derrett at 308.
41. Supra note 40.
42. Ibid.
452 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol 14 : 3

case cannot be doubted in the present state of legal provisions. The rule of
monogamy as laid down under the Hindu Marriage Act,43 it is submitted,
does not create any right in the individual spouse which could be vindicated
by the issuance of*an injaction. As Mr. Justice Mahapatra puts it forcefully:

Bigamy has now been made penal by this special Act and that
is a matter for social upliftment. By making it penal no right
is created in any individual. The right to get such an act
punished is with the entire community. But that right can only
arise after such bigamy is committed and not before.44

Derrett's comments on section 12(1) (a) of the Hindu Marriage Act,

1955 are justified. The law as it stands to-day requires the establishing of
'impotence at the time of marriage' if a decree of nullity has to be obtained
by the aggrieved party. It is well known that in a large number of cases
considerable time-lag exists between the date of marriage and the actual
consummation. Derrett's redraft, therefore, clarifies and spells out the
spirit of the provision under section 12(1) (a) of the Hindu Marriage Act.45
Another question which is posing considerable difficulty to the courts
is the scope and the meaning of the term 'fraud' used in section 12(1) (c) of
the Hindu Marriage Act.46 The term is indeed nebulous and the courts are
unable to read clear meaning into it expecially in the absence of legislative
direction. Harbhajan Singh's*7 case puts upon the word 'fraud' the narrowest
construction by adopting the position that it should be something practised
at the time of marriage and which has affected the consent of the party.
There is some substance in the anxiety of the court that if the term fraud is
interpreted according to the definition given under the Indian Contract Act,
the sanctity of Hindu marriage would be affected. But it is submitted that
the courts in their concern to preserve the sanctity of marriage should not
go to the extent of frustrating the very object of introducing the term fraud
under the Hindu Marriage Act. Derrett has, therefore, rightly pleaded
for developing the concept of fraud adequately and in tune with the Hindu
ideals. The recognition of pre-marital unchastity as a vitiating factor in
fraud cases, as urged by Prof. Derrett is eminently reasonable.48 The cases
which have taken a contrary view are influenced by the western thinking that
pre-marital unchastity is an irrelevant factor so far as marriage is concerned.49
Such a stand in the west is quite in conformity with the modes of their society

43. Supra note 39.

44. A.I.R. 1967 Pat. 220 at 222.
45. Derrett at 315.
46. See the well informed article of Jaffer Hussain, Hindu Marriage Act, 1955:
Fraud as a ground for annulment 11 J.I.L.L (1969) 520.
47. A.I.R. 1964 Punj. 359.
48. Derrett at 320, 321.
49. Surjit Kumar v. Raj Kumari, A.I.R. 1967 Punj. 172; Rani Bala v. Ram Krishna.
(1969) 73 C.W.N. 751.
1972] REVIEWS 453

which permits the young boys and girls to mix freely and choose their part-
ners for life. Even if there is any pre-marital lapse, neither the society nor
the parties would take notice of it. But to apply the same logic to a society
like that of the Hindus which would frown at a maiden even if she winks at
a boy, would indeed be gross misjudging of social values.
Derrett remarks that a statement that the bride is free from
infectious disease would amount to fraud if it turns out to be the other way.50
The reviewer would be very happy if the law were to be that way. The case
law, unfortunately, takes a technical view of the provisions of the Hindu
Marriage Act. In Anath De v. Lajjabati Devi,51 where the wife had been
suffering from tuberculosis from some time before the marriage, the Calcutta
High Court refused to grant the decree of nullity on the ground of fraud by
taking, regretably, a purely technical stand. It is submitted that the courts
should review their position in this matter and take the stand as advocated
by Derrett.
An incidental but significant question which arises in connection with
the cases relating to desertion, namely, which spouse has the right to decide
about the establishment of matrimonial domicile, has escaped the notice of
the learned author. This question is an obvious outcome of the concept of
equality of sexes embodied in the 'Hindu Code', and may come up more
frequently before the courts in the coming years especially when wives having
lucrative jobs refuse to quit their posts and follow their husbands. Tirath
Kaur v. Kirpal Singh52 is an example of anachronistic approach in interpreting
the provisions of the 'Hindu Code'. The learned judge in that case adopted a
proposition as stated inMulla that a wife's duty toherhusbandis,to submit
herself obediently to his authority and to remain under his roof and
protection,53 a statement based upon an obscure decision of the last century
dealing with a kulin husband of Bengal.54 It may however be, observed that
the courts will have to take into account in the coming years the emerging
pattern of social behaviour in the Indian society while deciding the question
of matrimonial domicile.
In dealing with the topic of divorce, Derrett has done will in
controverting the trite remark often repeated by legal scholars that 'Hindu
Marriage Act has transformed Hindu marriage into a contract.' The
learned author has aptly summed up that:
[T]he introduction of divorce has not interefered with the samskara
still less abolished it, nor have Hindu marriages been turned into
contracts, as far too many jurists have pathetically and incauti-
ously observed. Marriage performed correctly according to the
Shastra is still a Samskara.55
50. Derrett at 321.
51. A.I.R. 1959 Cal. 778.
52. A.I.R. 1964 Punj. 28.
53. Mulla, Hindu Law 545 (1966 ed.).
54. Sitanath v. Haimabutty (1875) 24 W.R. 377, 379.
55. Derrett at 348.
454 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 1 4 : 3

Derrett's examination of the law of adoption is conditioned by his

thinking that sacramental adoptions continue to be recognised under the
Hindu Adoption and Maintenance Act, 1956 along with the secular or
non-sacramental adoptions and that where there is a desideratum under
the Act, one can fall back upon the Anglo-Hindu law of adoption. Such
an attitude is made amply clear by his remark that "they should not fall into
the error of imagining that the old Hindu law of adoption is destroyed."56
This should not surprise the reader in any way, for, as noticed earlier,
Derrett's predilection for the Dharma-shastraic approach makes him reluc-
tant to concede that the Parliament had no sympathy for the quagmiry
traditional law of adoption. It may be emphasised that the Hindu Adop-
tion and Maintenance Act, 1956, has little in common with the traditional
law of adoption, its policy and approach being basically different from the
traditional law. It is in this background that we have to look into the ques-
tion whether the Act recognises the sacramental adoptions at all. The
Hindu Adoption and Maintenance Act has introduced a new regime in
adoption and all adoptions after 1956 must conform to the requirements
laid down thereunder. When an adoption fulfils the requirements of the Act,
certain consequences indicated therein flow from it. Whether the parties
deem the adoption as sacrametal or non-sacramental has no relevance so far
as the law is concerned so long as the parties observe the formalities pres-
cribed under the Act. The reviewer agrees with the learned author regarding
the various short comings in the Hindu Adoption and Maintenance Act,
but so long as the policy of the Act is borne in mind, it is submitted that most
of the provisions of the Act could be worked out to their logical conclusions.
Derrett makes a valid point when he remarks that the Hindu
Adoptions and Maintenance Act should have provided for the supervision
of adoptions by the state.57 A good deal of post adoption litigation and
odium between the parties could be avoided if an effective state machinery
is devised to supervise adoptions. Derrett is doubtful about the effi-
cacy of the rule which prescribes the minimum difference of 21 years between
the age of the adopter and the adoptee where they are of opposite sex.58
The reviewer, however, feels that this provision has been meant by
Parliament to prevent the misuse of the institution of adoption to achieve
evil designs. Where the difference in age between the parties is more than 21
years, chances of converting the legal relationship into an immoral affair
are indeed remote.
Derrett's misgivings about the adoption of a married man in the
Bombay School5* and which is saved under the Hindu Adoptions and
Maintenance Act,60 are justified and require careful handling by the courts.
Regarding the effects of adoption and the consequences ensuing the Supreme

56. Id. at 142-143.

57. Id. at 129.
58. The Hindu Adoption and Maintenance Act, 1956, s. 11 (//'/), (iV).
59. Derrett, Introduction to Modern Hindu Law 112 (1963).
60. Supra note 58 s. 10(»7).
1972] REVIEWS 455

Court decisions in Sawan Ram v. Kalwanti*1 and Sitabai v. Ramchandra*2

the reviewer has already taken a stand different from that of the learned
author.63 It has been submitted in this connection that the Supreme Court
has erred in reviving the doctrine of relation back and its consequent impli-
cations and nothing short of a legislative amendment to section 12(1) of
the Hindu Adoption and Maintenance Act could undo the effect of the two
Supreme Court decisions. Therefore, any further comment in this regard is
redundant.
The chapters relating to joint-Hindu-family and partition are a brilliant
exposition of the current law. These two chapters along with the chapter
on property rights of women reflect the optimism of Derrett who is
still sanguine about the preservation and perpetuation of the joint family
system despite the serious inroads made by the Hindu Succession Act, 1956.
Time alone can vouch for such a view whether the institution of joint family
could withstand the onslaughts of ligislation and the continual exposure to
western ideas fostering individualism.
Derrett's indictment of the 'pious obligation' theory is justified.64
It is interesting that generations of Indian legal scholars accepted the validity
of the 'pious obligation' theory without a second thought. The gymnastics
the courts had to indulge in to reconcile the right by birth-theory with the
'pious obligation' theory with a view to validate the alienation of copar-
cenary interest by the father to satisfy his personal debts which were not
tainted, makes an interesting but sad reading.65 It is, therefore, welcome that
a writer of Derrett's standing has suggested re-thinking on the topics
of 'pious obligation' and avyavdharika debts.66 Regarding the alienation
of coparcenary interest by an individual coparcener, the learned author has
argued in favour of recognising the validity of alienations made on behalf of
disqualified coparceners.67 It may, however, be pointed out that his reasons
are not convincing.
Derrett's comments on the topic of 'female managers' of copar-
cenary property are enlightening.68 It is true that if a technical view is
taken, a woman, being a non-copaicener, is not entitled to be the manager
of a joint-Hindu-family, all the members of which are minors, and it is no
wonder that the Madras High Court stuck to this technical interpretation. 69
But one has to concede that the view taken by the Nagpur High Court on
this point is more realistic and in tune with the changing pattern of times

61. A.I.R. 1967 S.C. 1761.

62. A.I.R. 1970 S.C. 343.
63. See B.N. Sampath, The Doctrine of Relation Back: An Unfortunate Revival
(1970) 2 S.C./. 1-10.
64. Derrett at 27, 94.
65. Brij Narain v. Mangla Prasad (1923-24) 51 I.A. 129.
66. Derrett at 94-108.
67. Id. at 116.
68. Id. at 117.
69. Radha v. Commr, / X , A.I.R. 1950 Mad. 538.
456 JO URNAL OF THE INDIAN LA W INSTITUTE [Vol. 14:3

when a woman is expected to play a more prominent role in the society.70

As the learned author puts it, the Supreme Court has still the scope to change
its mind and depart from its own obiter dicta upholding the Madras view.71
The chapter on 'the property rights of women' is swayed by the dharma-
shastrin in Derrett. The author, like his orthodox counterparts in
India, has yet to reconcile himself fully to the conferment o f absolute rights
on Hindu women. This is a prominent area wherein the social change has
been initiated through legal change. No body should have any doubts about
the emergence of a healthy property law especially relating to Hindu women
provided the present legal provisions are given a patient trial. The reviewer
is, however, not unmindful of the gross lacunae in the various provisions
of the 'Hindu Code'. He would, for instance, entirely, agree with
Derrett regarding the anomalous situations created in working out the shares
of females at the time of the partition. The oddities he has pointed out are,
indeed, the outcome of piece-meal legislation.72 The Hindu Succession Act,
1956 has, for instance, conferred heirship on Hindu women, but when the
question of ascertaining the shares comes up, reference has to be made
inevitably to the traditional law of partition which is based upon a different
set of principles.73 With the result, in working out the provisions of the
Hindu Succession Act, certain awkward conclusions would emerge. What is
needed, therefore, in such a situation is the thorough overhauling of the
remnants of the traditional law in conformity with the policy of the 'Hindu
Code.'
Deneit has made some valuable comments in the chapter on
testamentary and intestate succession, especially regarding sections 20, 22,
23 and 24 of the Hindu Succession Act. The reviewer, however, disagrees
with the learned autnor about the interpretation of section 30 of the Hindu
Succession Act. Derrett puts a narrow construction upon section 30
and reads that a coparcener can dispose of his interest by a will only in the
presence of a female heir or a male heir connected through the female heir
of the class I of the schedule.74 It is submitted that though such an inter-
pretation accounts for that unfortunate term 'testamentary' used in the
proviso of section 6 of the Hindu Succession Act, it runs counter to the policy
of the Act. Derrett states that a coparcener is having such a testa-
mentary power only for the purpose of depriving a female heir of her share.75
It is submitted that reading such a motive into the provisions of the Hindu
Succession Act is antithetical to the very objective of the Act.

70. Pandurangv. Gorle, A.I.R. 1947 Nag. 178 at 179; Commr. IT. v. Laxmi, A.I.R.
1949 Nag. 128 at 129.
71. Commr. IT, M.P. w.Seth Govindram Sugar Mills, A.I.R. 1966S.C.24at 28.
72. Derrett at 209.
73. For the difficulties confronted by the court in ascrtaining the share of the
mother at the time of notional partition; see the two Bombay cases of Shiram Baiv.
Kalgonda, A.I.R. 1964 Bom. 263 and Rangubaiv. Laxman, A.I.R. 1966 Bom. 169.
74. Derrett at 225; Also Derrett, Introduction to Modern Hindu Law 377 (1963),
75. Id. at 225-226,
1972] REVIEWS 457

Derrett's remarks regarding section 4(2) of the Hindu Succession

Act which saves the laws relating to agricultural tenancies are valid and
deserve immediate attention. For instance, when a male Hindu dies in the
State of Uttar Pradesh leaving behind agricultural property, a house, cash
and other forms of property, two different laws of succession regulate the
devolution of his property. So far as the agricultural tenures are concerned,
they will be regulated by section 171 of the U.P. Zamindari Abolition Act,
1951, which lays down a list of heirs close to the Mitakshara law. But
regarding his house, cash and other property, the Hindu Succession Act
will apply. Such a situation is far from satisfactory and calls for immediate
attention from our legislators.
Derrett's comments on 'eunuchs' 'sanyasis' and 'uterine heirs'
are justified. The law should indeed equate, as suggested by the learned
author, the uterine heirs with heirs by half blood.76 His remarks regarding
the classification of heirs under section 8 of the Hindu Succession Act deserve
careful study.77 It is rather difficult tojustify the giving away of property to a
far-flung agnate or cognate in preference to the modern state which is closely
involved with the individual in securing his welfare. It would, therefore,
be worthwhile to examine whether a list with a smaller number of heirs com-
prising very close relatives of the deceased could be substituted in the place
of the present list and allow the state to come in much earlier.
In the context of the classification of heirs under section & of the Hindu
Succession Act, an important point has escaped the notice of the learned
author. Section 8 of the Hindu Succession Act, in consonance with the
Hindu sentiment, prefers agnates to cognates. But when we turn to the
definition clause agnate is defined as a person related to another by blood
or adoption wholly through males.78 The definition however does not
restrict the degree to which the heirhship could extend among the agnates.
Consequently, even an agnate of the'n'th degree would exclude the nearest
cognate, for instance, a sister's daughter's son. Had it been under Mitak-
shara, agnates beyond fourteen degrees would not have had any claim over
the property of the deceased and the Bandhus or cognates would have come
in. It is indeed another instance where Mitakshara scores over the Hindu
Succession Act.
Derrett's evaluation of the law relating to religious endowments
is illuminating and will be of much assistance when a comprehensive legis-
lation is undertaken in this field.
Even after completing the book two doubts loom large in the
mind of the reviewer. Derrett emphasises that technically correct and
logically consistent decisions might not be socially progressive whereas
technically incorrect decisions might be socially helpful and there-
fore, he pleads that the courts should follow decisions which are

76. Id. at 244-246.

77. Id. at 255-256.
78. S. 3(1)(A).
 458 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 14 : 3

socially helpful even if they are technically incorrect.79 The reviewer is

unable to realise how the technicalities of the decision-making could be
avoided especially when they are the inevitable trappings of the common
law system. Derrett, being an ardent admirer of indigenous systems,
champions the cause of their preservation. However, it is doubtful whether
a society like that of the Hindus could remain in splendid isolation in the
context of the world mass media which bring new ideas every day.
The book is indeed the most stimulating work of this century in the
field of Hindu law. If it is utilized properly by the bench and the bar, the
immediate participants in the decision making process, many cobwebs of the
current Hindu law could be cleared up paving the way for the emergence
of a uniform civil code.
B. N. Sampath*

79. Derrett at 7, 210.

* B.Sc, LL.M. (Osmania), Lecturer, Law School, Banaras Hindu University,
Varanasi.