PERSONAL LAW –I

By: Shalini Bahuguna Bachheti

 UNIT –I -SYNOPSIS
 Introduction
 Concept of Dharma
 Importance of Dharma in Legislation
 Sources of Hindu Law
 Two schools of Hindu Law
 Conclusion
 Introduction

 Hindu Law is a divine law.

 It is believed that God has preached the law to the
common man through vedas
 Different sages life have expounded and refines the unique
ideas of life clarified in the vedas
 “Rex to Lex and Lex to Rex” 

 The Indian legal system has undergone gradual change since time immemorial. “Rex to
Lex and Lex to Rex” [King is Law to Law is King] principle was followed very much
similar to Manusmriti concept of Law is the king of kings“and later during British rule
adopted two methods to remove defects in existing law:

  (1) Where there was no law relating to a particular matter they applied doctrine of
“justice, equity and good conscience”

 (2) They started codification of laws for providing certainity, uniformity and
nationality of laws. Principle of natural law followed in India like doctrine of legal
bias, reasoned decisions, judicial review, and fundamental rights in the Constitution as
Directive Principles of the State Policy provisions.
 Importance of Dharma in Legislation

 By the Term Dharma is understood as the rules which govern the whole mankind.
 The word Dharma generally includes all kind of rules, religious, moral, legal,
physical, metaphysical or scientific in the same way as law does, in the widest
sense.
 Dharma has been defined as”what is followed by those, learned in the Vedas and
what is approved by the conscience of the virtuous who are exempt from hatred
and inordinate affections”
The influence of Dharma and influence to Indian legal system is evident prima facie from the logo of
Supreme Court of India inscribing the words “Yato Dharma Tato Jaya” meaning “where there is
Dharma, there is victory from the Bhagvad Gita a part of a popular epic “Mahabharata”. Furthermore
from the ancient scriptures of Mundaka Upanishad has been inscribed in Devanagari script ”Satyameva
Jayate” in which ‘satyam‘ means ‘truth’, ‘Jayate‘ means ‘victory’ and together it means “Truth Alone
Will Triumph”. Dharma means justice and the national emblem and currency notes in India have
Satyamev Jayate and Chakra inspired from the Ashokan pillar at Sarnath, Varanasi. It has been a question
of great relevance that the Apex Court has maintained to be secular in nature though implementing
principles of Dharmashastras and religious texts.

Law is founded on Dharma . Dharma includes duties, rights, laws, conduct, virtues and right way of
living. There is no single word in English or any western language which can substitute Dharma.
Nevertheless many jurists and thinkers have tried to interpret Dharma but had come to the same
conclusion or meaning as an inference of the definitions given by them irrespective of their different
interpretations as it hard to define dharma.
 Sources of Hindu
Law

Ancient Sources Modern Sources

/Primary Sources /Secondary Sources

Digest &
Shruti Smiriti Custom & Usage
Commenteries

Equity, Justice &

Precedent Legislation
Good Conscience
Followed from 100
years
What is remembered
e Usage is repetition
of acts

C-explain a Cases Parliamentary acts Fairness in dealing

particular smiriti
What is Heard D-mainly written
 Schools of Hindu Law

 Schools of Hindu Law has emerged from Digest and Commentaries.

 Two important schools are
 The Mitakshara School
• Madras School or Dravida school
• Maharashtra or Bombay school
• Benaras school
• Mithila school
• Punjab school
 The Dayabhaga school
 Mitakhsara School
 Exist all over India except Bengal and Assam
 Based on code of Yagnavalka commented by Vigneshwara and Law maker from Gulbarga,
Karnataka.
 Orthodox school.
 Sapinda concept –same blood, only agnates- male human being descendants (Patriarchal)
 Right to Hindu Joint Family property is by birth (rule of survivorship)
 Coparcenary –only males
 Partition –sons can ask for partition
 Types of property –Ancestral ,Separate property ,self acquired – cannot alienate
 In a joint Family, when a son/grandson/great grandson is born ,he acquires in rights in ancestral
property.
 Survivorship Rights are given while widow’s right is not given .
Note :- now daughter also after commencement of Hindu Succession (Amendment) Act,2005 –Rule
of survivorship ha been abolished by this amendment .
 Dayabhaga School
 Written by Jimutvahana (based on digest )
 Exist only in Bengal and Assam
 Reformist school
 Has no sub-school
 Sapinda concept –one that can offer ‘Pinda’-both cognates (female human being
desendants) and agnates
 The person acquires his right after the death and not by birth (rule of succession)
 Coparcenary- females allowed
 Partition –cannot be done
 Types of property –no such distinction –absolute right -can alienate property
 Right in Joint family acquired by Inheritance or by will
 No right of survivorship
 Widow gets her right in Dayabhaga school.
 Conclusion

 Where a Hindu Family migrates from one part of India to another part of India
,Prima facie they carry with them their personal law, and if they alleged to
become subject o local custom ,this new custom must be affirmatively proved to
have been adopted .

 Domicile plays an important role .

 Factum valet quad fieri non debuit – what ought not be done becomes valid when
done .