HINDU LAW
Sources of Hindu Law
Q. 1. Enumerate the various sources of Hindu Law pointing out the relative importance of each.
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What are the main sources of Hindu Law? Discuss their importance.
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Discuss the sources of Hindu Law. Critically examine their relative importance also.
Ans. Sources of Hindu Law. Sources of Hindu Law are thefollowing-
1. Vedas (Shruti),
2. Smritis,
3. Commentaries and Digests,
4. Customs,
5. Legislations, and
6. Precedents or Judicial decisions.
1. Vedas (Shruti)
Hindu Law, according to the Hindu belief, is divine revelation in the utterances of the creator. ‘Shruti’ is the synonym used for ‘Veda’, and it means ‘what was heard’ from God. Since Vedas are said to contain the utterances of God, they are considered to be the fundamental or paramount source of law.
Vedas are four in number Rigveda, Yajurveda, Samaveda and Atharvaveda.
Manu says “The whole Veda is the first and paramount source of Hindu Law”-“The whole Veda” here means that not only the direct texts themselves are authoritative but also those rules which are deducible from them.
Vedas are in theory the paramount source of Hindu Law. But they do not contain positive precepts (vidhi) on the matters of dharma in a connected form. They only contain incidental references to various topics that fall under the domain of dharmashastra as conceived in latter times. Some examples are: marriage, adoption, inheritance and partition.
The Taittiriya-Samhita mentions the story of Atri who gave his only son in adoption to another Rishi Aurva. The law deduced from this story is that the adoption of the only son is valid. In Balusu v. Balusu. (1899) 26 Indian Appeals 113, the Privy Council, with reference to the story of Atri- Aurva, decided that the adoption of the only son is valid.
2. Smritis
Rules, as distinct from instances of conduct are, for the first time, embodied in the Smritis. Smritis means “what was remembered”. It is believed that the Smritis contain the precepts of God, but not in the language they had been delivered. The language of the Smritis is of human origin, but the rules are divine. The authors of Smritis do not arrogate to themselves the position of legislators, but profess to compile the traditions handed down to them by those to whom the divine commands had been communicated.
Smritis are the principal sources of lawyer’s law, but they also contain matters other than positive law. The Smritis of Manu and Yajnavalkya deal with religious rites, positive law, penance, true knowledge and liberation. Some of Smritis deal with positive law alone, such as, Smritis of Narada, Brihaspati and Katyayana. Some Smritis like Parashar-Smriti deal very little with positive law. Yajnavalkya Smriti gives a list of twenty sages as law givers. This list comprises of the following sages, who are law givers (dharmashastra prayojakah)-Manu, Atri, Vishnu, Harita, Yajnavalkya. Ushanas, Angira, Yama, Apastamba, Samvarta Katyayana, Brihaspati. Parashara, Vyasa, Shankha Likhita, Daksha, Gautama, Satatapa and Vasistha. According to Mitakshara this list is only illustrative, not exhaustive.
All the Smritis have their source in the Veda save those portions that deal with temporal or visible matters. If a Smriti is in conflict with Veda, it must be rejected as being not founded on revelation. If there is a conflict between the rule of one Smriti and the rule of other Smriti, they both be reconciled, if it is not possible, then the Manusmriti shall prevail over other Smriti. Yajnavalkya Smriti is next to Manusmriti in order of authority. That is, if there is any conflict between the rules of Yajnavalkya Smriti and any other Smriti (except Manusmriti), the rule of Yajnavalkya Smriti shall prevail.
Smritis are divided into Dharmasutras and Dharmasashtras.
Smritis are written either in verse (shloka) or in prose or in mixed prose-verse. Smritis which are in verse are known as “Dharma-Shastra” Such Smritis are those of Manu, Yajnavalkya, Narada, Katyayana and Brihaspati. Smritis which are in prose or prose and verse are called “Dharm-sutra”, such as of Gautama, Baudhayana and Vashistha. Dharm-sutras are earlier in age as compared to the Dharmasashtras.
3. Commentaries and Digests
It has already been mentioned that Smritis are many. But all the laws are not mentioned in every Smriti. Sometimes there are inconsistencies between the provisions of one Smriti and the provisions of other Smriti. Dharmasashtra writers tried to reconcile these conflicting texts of Smritis or laws contained in those Smritis. These learned Commentators and Digest writers either commented on particular Smritis or made digests of the entire body of Smriti material. These writers modified and supplemented the rules in the Smritis, in part by means of their own reasoning and in part in the light of usages that had grown up. These Commentators and Digest-writers purport to expound the law almost exclusively with reference to texts of the Smritis which are supposed to be only interpreted by them. These Commentators while professing to interpret the law as laid down in the Smritis introduced changes in order to bring into harmony with the usage followed by the people governed by that law. A poignant instance of this fact is to be found in the discussion on the validity of marriage with a maternal sister. The Commentators and Digest writers of Southern India support the validity of the marriage of maternal sister.
Composed in different parts of India a number of these Commentaries and Digests gained ascendancy in those parts of the country where the authors, were accepted as of pre-eminent authority. In different parts of the country different works came to be referred to in as the chief guides on law. The result was that two Schools of Hindu law-Mitakshara and Dayabhaga sprang into existence.
Commentaries and Digests have in effect superseded the Smritis in very large measure. In Atmaram v. Bajirao. 37 Bom LR 533 (PC) the Privy Council emphatically laid down that “in the case of a conflict between the ancient text writers and the commentators, the opinion of the later must be accepted.”
The principal commentaries are:
(1) Dayabhaga by Jimutavahana, (2) Mitakshara a commentary on Yajnavalkya by Vijnaneshwara, (3) Viramitrodaya by Mitra Misra, (4) Vivada Chintamani by Vachaspati Misra, (5) Vivada Ratnakara, by Chandeshwara (6) Dayatattwa by Raghunandana, (7) Dayakramasangraha by Sri Krishna, (8) Smriti Chandrika by Devananda Bhatta, (9) Parashara Madhaviya, a commentary on Parashara by Madhavacharaya, and (10) Vyavahara Mayukha by Nilkantha.
4. Customs
Custom is regarded as one of the most important sources of law. The Privy Council in Collector of Madura v. Mootoo Ramalinga, (1868) 12
M.I.A. 397 held that “under the Hindu system of law a clear proof of usage will outweigh the written text of the law.”
The custom to be applicable should have the following essentials :
(1) The custom must be ancient
(ii) It must be certain and uniform.
(iii) It must be continuous
(iv) It should not be immoral or against the public policy.
(v) It should not be unreasonable.
(vi) It should not be opposed to statutory law.
The codified Hindu law has abrogated customs in most of the matters, except in those matters, where the customs have been saved in express words. But in those matters, where the uncodified Hindu law applies, the principle of law laid down in Collector of Madura v. Mootoo Ramalinga. (1868) 12 MIA 397 still holds good. For custom to have the colour of a rule of law, it is necessary for the party claiming it to prove that such custom is ancient, certain and reasonable. [Dr. Surajmani Stella Kujur v. D.C. Hansdah. 2001 (42) ALR 347 (SC)]
In Ratanlal Babulal Chunnilal Samsuka v. Sundarbai Govardhan Das Samsuka (D) through L.Rs., AIR 2017 SC 5797, the Apex Court has expressed the view that continuity, certainty, long usage and reasonability are necessary ingredients for establishing a valid custom. A custom in derogation of Hindu law cannot be enlarged by a parity of reasoning.
5. Legislation
Enactments of the Legislature declaring, abrogating, amending or modifying rules of Hindu law are additional and modern source. No longer do we look to the Smritis and Commentaries for the Hindu law but to the legislature. Most of the enactments are in the direction of reform of Hindu law and some of them supersede Hindu law. The Hindu law has been substantially changed by the following Acts:
1. The Caste Disabilities Removal Act, 1850.
2. The Hindu Widows’ Re-marriage Act, 1856.
3. The Dissolution of Native Converts’ Marriage Act, 1866.
4. The Special Marriage Act, 1872, and re-enacted in 1954 “The Special Marriage Act, 1954”.
5. Child Marriage Restraint Act, 1929.
6. The Hindu Inheritance (Removal of Disabilities) Act, 1928.
7. The Hindu law of Inheritance (Amendment) Act, 1929.
8. The Hindu Gains of Learning Act. 1930
9. The Hindu Women’s Right to Property Act, 1937.
10. The Hindu Marriage Act, 1955.
11. The Hindu Succession Act, 1956 as amended by the Hindu Succession (Amendment) Act, 2005.
12. The Hindu Adoptions and Maintenance Act, 1956.
13. The Hindu Minority and Guardianship Act, 1956.
14. The Prohibition of Child Marriage Act, 2006.
The Hindu Marriage Act, 1955, the Hindu Minority and Guardianship Act, 1956, the Hindu Succession Act, 1956 (as amended in 2005) and the Hindu Adoptions and Maintenance Acts have overhauled the provisions of Hindu Law.
6. Precedent
Precedent means previous judicial decision. Strictly speaking, precedent is not the source of law in the sense in which the Legislature is. Because the function of a judge is not to make law but only to interpret it. In interpreting and applying the law to particular cases, the judges expressly or by necessary implication enunciate what the law, is, and the view of the law expressed and acted upon by them serves as a guide in similar cases arising subsequently, and is taken to have a binding force.
The judicial decisions is a source of law in the sense that it is binding on the subordinate courts. If the decision is by the Supreme Court of India or by the Privy Council, it is binding on all the courts. There is now large bulk of cases on Hindu law covering all its aspects that they have almost settled the law. In such matters recourse to the original sources is not necessary.
The judicial decisions have amended and altered the Shastric Hindu Law mainly on the matters relating to stridhan, adoption, coparcenary property, partition, alienation, debt, will, endowment and guardianship. The decision of the Privy Council in Hanuman Prasad Pande v. Mst. Babooee Munraj Kunvari, (1868) 6 MIA 393 has ruled over our Hindu law for about a century until it has been amended by the provisions of the Hindu Minority and Guardianship Act, 1956.
Legislation as a Source of Hindu Law
Q. 2. Discuss “legislation” as a source of Hindu law.
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Examine the importance of Legislation as a source of Hindu law.
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Point out the importance of Legislation as a source of Hindu Law.
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“Legislation is the most potent source of law in modern times” How far this statement is correct with reference to Hindu Law? Examine.
Ans. Legislation as a Source of Hindu Law. – There are four conventional sources of Hindu law and three modern. The conventional sources are Vedas, Smritis, Commentaries and Digests, and Sadachar or customs. The modern sources are legislation, judicial decisions, and customs. “Customs” are included in both. Hence the sources of the Hindu law are six:
Veda,
Smriti,
Commentaries and Digests,
Sadachar or Customs,
Legislation, and
Judicial Decisions.
Legislation.- Enactments of the Parliament or the State Legislature declaring, abrogating or modifying rules of Hindu law are most effective modern source. Legislation is a source of law and also the most effective instrument of abolishing the existing law. The Kerala Joint Family System (Abolition) Act, 1973 has abolished in the State of Kerala “son’s right by birth”, and “son pious obligation” rule. The Hindu Marriage Act, 1955 has abolished the system of polygamy throughout India. Most of the enactments are in the direction of reform of Hindu law and some of them supersede Hindu law. The Hindu law has been substantially changed by the following Act:
1. The Caste Disabilities Removal Act, 1850
Prior to the operation of this Act, if a Hindu renounced his religion, or was excluded from the communion of that religion, or was expelled from the caste, such renunciation, exclusion, or expulsion entailed a forfeiture of his rights and property, and deprived him of his right of inheritance. The Caste Disabilities Removal Act, 1850, set aside the provisions of Hindu law which penalised the renunciation of religion or exclusion from caste. The result is, that neither conversion nor degradation from caste can now deprive a person who was once a Hindu of his right of inheritance or other rights. Thus the Act gives every person freedom of religion. The Act is also known as the Freedom of Religion Act, 1850.
2. The Hindu Widows’ Remarriage Act, 1856
Prior to the introduction of this Act a Hindu widow was not allowed to re-marry except where it was permitted by custom. This is an enabling Act and it enables a Hindu widow to re-marry. The Act legalizes the re-marriage of Hindu widows and declares the issue of such re-marriage to be legitimate.
3. The Dissolution of Native Converts Marriage Act, 1866
This Act was a part of the Christian law in India. This Act enables a Hindu convert to Christianity to obtain dissolution of marriage under certain circumstances.
4. The Hindu Law of Inheritance (Amendment) Act, 1929
The Act alters the order of intestate succession under Mitakshara School of Hindu law. Prior to this Act the order of succession to a sonless man (under Mitakshara law) was as follows:
(1) The widow,
(2) daughters,
(3) daughter’s sons,
(4) parents,
(5) brothers,
(6) brother’s sons,
(7) gotrajas (agnates),
(8) bandhus (cognates),
(9) pupils and
(10) fellow students.
The word “gotraja” includes paternal grandfather and then paternal uncle. No cognate, how near he or she might be, was allowed to succeed until the list of all the agnates were exhausted. The only exception was the daughter’s son. The Hindu Law of Inheritance (Amendment) Act, 1929, provides that a son’s daughter,
daughter’s daughter,
sister, and
sister’s son.
shall be entitled to rank in the order of succession next after the paternal r grandfather and before the paternal uncle.
5. The Hindu Inheritance (Removal of Disabilities) Act, 1928
The Act amends the rule of Hindu (Mitakshara) law relating to exclusion from inheritance of certain disqualified heirs. The Act provides that-
“…no person governed by the Hindu law, other than a person who is and has been from birth a lunatic or idiot, shall be excluded from inheritance or from any right or share in joint-family property by reason only of any disease, deformity or physical or mental defect.”
In effect, the Act places blind, dumb, impotent, leper and other physically handicapped heirs at par with qualified heirs. The provision of this. Act relating to non-exclusion of heirs from inheritance has been contained under Section 28 of the Hindu Succession Act, 1956 and hence the Hindu Inheritance (Removal of Disabilities) Act, 1928, has been impliedly repealed.
6. The Hindu Gains of Learning Act, 1930
This Act made revolutioriary change in the Hindu Law of coparcenary property. Before the enactment of this Act the income earned by a member of the joint family through special training was joint-family property if such special training was imparted at the expense of the joint family fund. But, if the gains made by a member of the joint family was due to the result of ordinary training or education it was the self-acquired property of the acquirer.
The Act removed the above distinction and provides in the bold language that any gains of learning shall be the separate property of the acquirer.
7. The Child Marriage Restraint Act, 1929
The Act was passed with a view to prevent child-marriages. The child marriage was defined to be a marriage where bride did not attain the age of 15 years or the bridegroom 18 years. With effect from October 1, 1978, the age has been raised to 18 years in the case of a female and 21 years in case of a male. The Act was a restraining Act and not invalidating Act. It penalized a male to marry a female below 18 years. It also provided punishment for parents and guardians who are parties to a marriage below age. But the Act of the provisions did not affect the validity of a marriage contracted in breach of of the Act. This Act has been repealed by the Prohibition of Child Marriage Act, 2006.
8. The Hindu Women’s Right to Property Act, 1937
The Act brought important changes in the Hindu Law of coparcenary, partition, alienation, inheritance and adoption. Prior to this Act the widow of the deceased Hindu was not entitled to get any share in the property if deceased left a male issue. The Act conferred upon the widow of a man rights of inheritance to his property even when he left male issue. Similar rights were conferred upon the widows of his predeceased son and of his predeceased son of the predeceased son. In a Mitakshara coparcenary the widow of a deceased coparcener as a result of this Act stands in the shoes of her late husband. Thus, where a coparcener left a widow, the rule of survivorship no longer took effect. This Act has been repealed by the Hindu Succession Act, 1956.
9. Special Marriage Act, 1954
This Act provides a special form of marriage for all persons in India including Hindus. Two persons of different religions may also marry under this Act. If a Hindu marries under this Act, he shall be deemed to effect his severance from the coparcenary (joint family). To solemnize a marriage under this Act, no ceremony is necessary.
10. The Hindu Marriage Act, 1955
This Act has revolutionalized the conception of the Hindu Marriage. The Act made Hindu marriage monogamous and any violation of it has been made the offence of bigamy punishable under Sections 494 and 495 of the Indian Penal Code. Prior to the enforcement of this Act the divorce was not known to Hindu Law except where it was allowed by custom. This Act makes provision for divorce on certain grounds. In addition to divorce, various other matrimonial remedies like nullity of marriage, judicial separation, and restitution of conjugal rights have been provided by the Act. The inter-caste marriage has been made legal.
11. The Hindu Succession Act, 1956
The Act amends and codifies the law relating to succession, both intestate and testamentary, among Hindus. Prior to the passing of this Act daughters were not entitled to inherit if there was a son. The Act put daughters at par to son. Now daughter and son both will inherit equally simultaneously. The Act converted the limited estate of a Hindu woman into full, and any property possessed by a Hindu female shall now be held by her as full owner thereof. A Hindu has been expressly given the power to make a Will or other testamentary disposition of his or her property. The Dayabhaga School of law has been practically abrogated and the Mitakshara School of law has been much modified.
12. The Hindu Minority and Guardianship Act, 1956
The Act amends and codifies certain parts of law relating to minority and guardianship among the Hindus. The Act abolishes the de facto guardianship of a minor’s property. The rights of natural guardians and testamentary guardians of a Hindu minor were also curtailed and made subject to the supervision of the Court.
13. The Hindu Adoptions and Maintenance Act, 1956
This Act was the fourth and the last instalment of the Hindu Code. Prior to the enforcement of this Act a widow had no right to adopt a son in her own right, but she could adopt on behalf of her late husband. Only male child could be adopted. The Act made drastic changes in Hindu Law of adoption. After the amendment in the Hindu Adoptions and Maintenance Act by the Personal Laws (Amendment) Act, 2010, male and female Hindus have been made equal jura in the matters of adoptions.
In the law of maintenance also the Act makes some changes. The widowed daughter-in-law now may claim maintenance from her father-in-law in certain circumstances. A childless step-mother may also claim maintenance from her step-son.
14. The Hindu Succession (Amendment) Act, 2005
The Hindu Succession (Amendment) Act, 2005 has brought about far reaching changes in the concept of Mitakshara Coparcenary. This amendment has now made the daughter of a Mitakshara Coparcener a coparcener in the Mitakshara Joint family. It has deleted Sections 4(2), 23 and 24 of the original Hindu Succession Act and inserted four news heirs in class I of the Schedule. It has substituted Section 6 of the original Hindu Succession Act. The Section 6 of the Hindu Succession Act, as substituted by this Amendment Act, makes the daughter of a coparcener a coparcener in the Mitakshara joint family and abolishes the principle of survivorship. which was a cardinal principle of the Mitakshara coparcenary till now.
Application of Hindu Law
Q. 3. Who is a Hindu and on whom does Hindu law apply? Can a Jain who adopts Islam and reconverts himself into a Sikh be governed by the Hindu Law?
Or
For purposes of application of Hindu Law, what categories of persons may be called Hindus? Discuss in this connection the modes of conversion to the Hinduism?
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Who are ‘Hindus’ for purposes of application of Hindu Law? Discuss.
Ans. Application of Hindu Law- Who are Hindus?- For purposes of application of Hindu Law, we may classify Hindus under three categories:
(a) Hindu by religion.
(b) Hindu by birth,
(c) Any person other than Muslim, Christian, Parsi and Jew.
A. Hindu by Religion
Hindu law applies to all persons who are Hindus by religion. “The Hindu religion is marvellously catholic and elastic. Its theology is marked by electicism and tolerance and almost unlimited freedom of private worship. Its social Code is much more stringent, but amongst its different castes and sections it exhibits wide diversity of practice.” Mere lapses from orthodox practice cannot have the effect of excluding from the category of Hindu. Hindu by religion means a Hindu by religion in any of its forms or developments including a Virasharva, a Lingayat of a follower of the Brahmo. Prarthana or Arya Samaj Kabir Panthis are also regarded as Hindus.
Hindu law also applies to any person who is a Buddhist, Jain or Sikh by religion. Buddhism, Jainism or Sikhism are the off-shoots of Hindu religion.
Convert to Hinduism is a Hindu by religion. – A convert to Hinduism is a person who renounces his faith and accepts Hinduism Sikhism, Buddhism. Jainism. The conversion to Hinduism must be by undergoing the ceremonies of conversion prescribed by the religion (or the sub-religion) or the community, to which conversion is sought, accepts him as a Hindu. In Perumal v. Punnaswami, AIR 1971 SC 2352, the Supreme Court held that a bona fide intention to be converted to the Hindu faith, accompanied by conduct clearly expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiation is necessary to effectuate conversion.
Reconvert to Hinduism is also a Hindu.- A Hindu converted to any other religious persuasion may revert back to Hinduism. Hinduism includes Sikhism, Jainism and Buddhism. It is not necessary that he should reconvert to the same sub-religion from which originally he converted to the non- Hindu religion. If a Buddhist becomes a Muslim, and then re-converts to Buddhism, Sikhism or Jainism he will be a Hindu. Reconversion may be by performing prescribed religious rituals of expiation and repentance, or if the re-conversion is not accompanied by any formal religious ritual, when the person is admitted by his community into the Hindu fold. These two conditions are in the alternative. A leading case on reconversion is Mrs. Marthamma v. Munuswamy, AIR 1951 Mad. 888.
“The petitioner was a Christian School mistress, aged 29, and Munuswamy, aged 18 was a student in the school. She fell madly in love with him and began to have sexual intercourse with him. On 9-4-1944, Munuswamy was baptised and converted to Christianity, just after a week he was married. After living together for sometime. Munuswamy and Mrs. Marthamma got estranged in 1946. A temporary reconciliation took place. Munuswamy once again went from her. He married a charming Hindu girl Sarojini on 3-2-1949, according to Hindu rites.”
On this Mrs. Marthamma filed a complaint against Munuswamy. Sarojini and others under Sections 494 and 495 of I.P.C. for bigamy. The lower court acquitted all the accused on the ground that Munuswamy had relapsed to Hinduism and exercised his right as a Hindu to enter into another (polygamous) marriage with Sarojini. Against this acquittal Mrs. Marthamma appealed.
The petitioner argued that there was no provision for reconversion under Hindu religion, and a convert to Christianity could not reconvert to Hinduism. The argument was rejected.
Regarding the argument of the petitioner that the reconversion was ποι bona fide, the court, through Justice Panchapakesa Ayyar, remarked-
“I cannot see why a man like the first accused who became a Christian to marry the petitioner, a woman 11 years older than himself, should not be allowed to revert to Hinduism to marry another wife, 7 years younger than himself, Of course, the ‘religious motive’ did not operate either for the conversion or for the reconversion, and only the ‘woman motive operated”
B. Hindu by birth
Where both parents are Hindus. Children born of Hindu parents are Hindus. If one parent is Sikh, and the other parent is Jain, the child born will be a Hindu by birth, because both parents are Hindus. Hindu now includes Sikh, Jain, Buddhist and Arya Samajist also. Thus, any child legitimate or illegitimate, both of whose parents are Hindus, Buddhists. Jains or Sikhs by religion is a Hindu by birth.
A person who is born Hindu and has not renounced the Hindu religion, does not cease to be a Hindu merely because he departs from the standard of orthodoxy in matters of diet and ceremonial observances (Dr. Suraj Mani Stella Kujur v. D.C. Hansdah, 2001 42 ALR 847 (SC)]
Where one parent is a Hindu. A child, legitimate or illegitimate, is a Hindu whose one of the parent is a Hindu, Buddhist, Jain or Sikh by religion, and who is brought up as a number of the tribe, community, group or family to which such parent belongs or belonged.
In Ram Pargash v. Mst. Dahan Bibi, A Hindu dancing girl of Naika caste became Muslim. But her sons lived with their grandparents and were brought up as Hindus. The Patna High Court held that they were Hindus.
In Commissioner of Wealth-tax v. Sridharan, (1976) 4 SCC 489, the father was a Hindu and the mother was an Austrian Christian and their son was brought up as a Hindu, the Supreme Court held that the son was a Hindu and he with his father constituted a Hindu undivided family for the purpose of assessment under the Income-tax Act and the Wealth-tax Act.
C. Any person other than Muslim, Christian, Parsi and Jew
Sometimes it becomes difficult to say whether a person is Hindu or not, but it is always easier to say who are not Hindus under all the Hindu Code (enactments). Parliament made a negative approach and provided that Hindu is a person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Thus a person who does not believe in any other religion is a Hindu Atheists or persons believing in all religions may come under this category. They may not be Hindus in popular sense as it is understood in Hindu society, but nevertheless they are Hindus for purposes of the application of Hindu law.
In Yajnapurusdasji v. Muldas, AIR 1966 SC 1119, Gajendragadkar. J. observed-“It is difficult if not impossible to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet, does not worship any one God, dees not subscribe to any dogma; does not believe in any one philosophic concept; it does not follow any one sect of religious rites or performance, in fact it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more.”
Hindu law applies on Hindus, Buddhists, Sikhs and Jains by religion. The term “Hindu” includes Buddhists, Jains and Sikhs. the Sikhism is an off-shoot of Hindu religion. Hence when a Muslim renounces his faith and is converted into Sikhism, the Hindu law will be applicable. When a Jain adopts Islam and re-converts himself into a Sikh religion he shall be governed by the provisions of Hindu law, because it is only a matter of re-conversion.
Schools of Hindu Law
Q. 4. There are two main schools of Hindu law, the Mitakshara and Dayabhaga. How do they differ from each other?
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What are the different schools of Hindu Law? What are differences between them? Discuss.
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What are main points of distinction between Mitakshara and Dayabhaga Law? Discuss.
Ans. Schools of Hindu Law. There are two main schools of Hindu law, the Mitakshara and the Dayabhaga. Under the Mitakshara school there sprang up four schools, (1) Mithila school. (2) Banaras school. (3) Maharashtra or Bombay school, and (4) Dravida or Madras school. The variance between the sub-divisions of the Mitakshara school are comparatively few and slight. In respect of the Maharashtra school, this division serves no useful purpose; nor does it rest upon any true or scientific basis. It is to a certain extent misleading as it conceals the fundamental identity of doctrine between the so-called Mithila, Banaras, Maharashtra or Dravida schools and suggests that there are more differences than do really exist.
The Mitakshara is of supreme authority throughout India except in Bengal. The Dayabhaga is of supreme authority in Bengal. But even in Bengal the Mitakshara is still regarded as a very high authority on all questions in respect of which there is no express conflict between it and the Dayabhaga and the other works prevalent there.
The schools arose on account of different interpretations of Smritis by different authors. In Rutcheputty v. Rajendra, (1839) 2 MIA 132 it has been held by the Privy Council that the different schools of Hindu law have originated due to different local customs prevailing in different provinces of India. The commentators on the Smritis could not ignore the local customs and usages and while interpreting the texts, they incorporated different local customs.
Mitakshara is a commentary on Yajnavalkya-Smriti. It was written in the later part of eleventh century, and is prior to Dayabhaga. The Mitakshara brings together numerous Smritis passages, explains away contradictions among them by following the rules of interpretation.
The Dayabhaga school of Hindu law is based on work “Dayabhaga” written by Jimutavahana. Jimutavahana had written the work in the 12th or 13th century. The Dayabhaga professes to be a digest of all the smritis.
Differences between Mitakshara and Dayabhaga
Any one who compares the Dayabhaga with the Mitakshara will observe that the two works differ in very vital points, and that they do so from the conscious application of completely different principles. The basic differences are:
(i) As regards the governing principles of law of inheritance.- The governing principle of law of inheritance and succession in Mitakshara is nearness of blood-relationship whereas in Dayabhaga it is religious benefit.
(ii) As regards mode of devolution of property. The Mitakshara recognized two modes of devolution of property, viz survivorship and succession. The rule of survivorship applied to the coparcenary property and the rule of succession to separate property. The Hindu Succession (Amendment) Act, 2005 has abolished the rule of survivorship as it existed under the Mitakshara law. Dayabhaga recognizes only one mode of devolution of property, that is succession. It applies to ancestral property and self-acquired property, coparcenary property and separate property.
(iii) As regards acquisition of property.-Mitakshara accepts the doctrine of acquisition of property by birth whereas Dayabhaga recognizes the doctrine of acquisition of ownership upon the death of last owner.
As soon as a son or a daughter is born [Section 6, Hindu Succession Act as substituted by Hindu Succession (Amendment) Act, 2005] is born, he or she gets equal rights with his/her father in the Mitakshara coparcenary property. Under Dayabhaga law a son has got no right in the father’s property, whether it is ancestral or self-acquired, the son gets the right in the property only on the death of the father. In Dayabhaga, coparcenary is created on father’s death and it continues till brothers chose to partition.
(iv) As regards concept of Coparcenary. Both schools differ in concept of coparcenership. According to Mitakshara, the ownership of each coparcener in an undivided family property extends over the whole of the joint property, and each part thereof. Each owner is deemed to be owner of the whole, in the same manner as other co-owners are also the owners of the whole, the ownership of the one without excluding the ownership of the others. This view is known as the doctrine of the ownership in the whole.
According to Dayabhaga each of the undivided coparcener has ownership, not over the entire joint property but only over particular portions thereof. This doctrine is known as the doctrine of ownership in part.
(v) As regards partition. Under the Mitakshara the share of each coparcener is not definite, and when the share is determined, that becomes partition. In other words, the partition by metes and bounds is not necessary but the fixation of share of each coparcener is enough. In Dayabhaga partition by metes and bounds is necessary.
(vi) As regards proprietary rights of females. The Mitakshara places the woman, in acquisition of property, on equal footing with man, but Jimutavahan (the author of Dayabhaga) is an orthodox in this matter and restricts their acquisition to six sorts of property expressly mentioned by Manu. The word “stridhana” is used in literal sense in Mitakshara and it means the property belonging to a woman. The Dayabhaga used the term in a technical sense and it means the property which is under her absolute control.
(vii) As regards pious obligation of a son. Under Mitakshara school of law, a son was under legal obligation to pay the debt of his father, father’s father, and father’s father’s father provided the debt is not avyavaharika (immoral). The doctrine of pious obligation of the son to pay the father’s debt has been abolished by the Hindu Succession (Amendment) Act, 2005 [Section 6(4) as substituted by Hindu Succession (Amendment) Act, 2005. There is no such pious or legal obligation of son under the Dayabhaga school of Law.
(viii) As regards Sapinda relationship. The Mitakshara and the Dayabhaga both recognize the prohibition of marriage on ground of Sapinda relationship. But they differ in meaning of Sapinda relationship. Mitakshara defines pinda as particles of the same body. Therefore, under the Mitakshara law, two persons are Sapindas to each other when they are related through a common ancestor or ancestress. Dayabhaga propounds the “oblation theory”. If two persons offer pindas to the same ancestor, then they are Sapindas to each other.
Now under the Hindu Marriage Act, 1955, Sapinda relationship has the same meaning under both Mitakshara and Dayabhaga laws.
(ix) As regards disposition of undivided property.– In Mitakshara, members of joint family property cannot dispose of their share while undivided, while under the Dayabhaga system, any member of the joint family can dispose his share even when he is not divided.