Sunday, August 31, 2008

Hindu Law (part 1)

Application of Hindu Law
Persons subject to Hindu Law-
Shastri Yagna Purushdasji v. Muldas
Bhundardas Vaishya- It is extremely difficult,
though not impossible, to define the Hindu
religion in the way the other religions are
defined. It embraces numerous views and ways
of life.
The term Hindu is not to be found anywhere in
the Dharmashastras. It is a foreign word. It is
derived from the word Sindhu. Sindhu is the
name of a river in Indian sub-continent. The
word Sindhu was mis-spelled as Hindu by the
Persians. The sub-continent came to be known
as Hindustan and its people as Hindus. Thus
etymologically, the word Hindu does not signify
a religion; it refers to a territory or nation.
Hindu law is a personal law. So, Hindu law
should define who is a Hindu, and upon whom
the Hindu law applies.

A portion of Hindu law has been codified by
Parliament in four Acts-
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i) The Hindu Marriage Act, 1955
ii) The Hindu Minority and Guardianship Act,
1955
iii) The Hindu Adoption and Maintenance Act,
1955
iv) The Succession Act, 1956
According to these Acts, a Hindu is a person
who-
Is a Hindu by religion in any of its form or
development
Is a Buddhist, Jain or Sikh by religion
Any person who domiciled in India, who is
not a Muslim, Christian, Persi or Jew by
religion
Hindus domiciled in the territories to which
the Act extends
Followers of Hindu law
Followers of Hindu Law-
i) Legitimate child of Hindu parents
ii) Illegitimate child of Hindu parents
iii) Children of one Hindu parent
iv) Converted- The law was that the conversion
was not accepted. But later it was accepted but
the converted person was given the lowest
caste. All Hindu laws will be applicable upon him
except the succession.
Requirement of conversion- (i) Unequivocal
conduct, (ii) Bona fide intention, (iii) No
ceremony is required and (iv) His motive is not
important (Raman Nadar v. Snehapoo).

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Persons not subject to Hindu Law-
i) Non-Hindu child of one Hindu parent
ii) Converts from Hindu religion
Abraham v. Abraham- Those who convert to
Islam and other castes are not subject to Hindu
Law.

Doctrine of factum valet-
It is a doctrine of Hindu law, which was originally
enunciated by the author of the Dayabhaga, and
also recognized by the followers of the
Mitakshara, that a fact cannot be altered by a
hundred texts. The text referred to are directory
texts, as opposed to mandatory texts. The
maxim, therefore, means that if a fact is
accomplished, i.e., if an act is done and finally
completed, although it may contravene a
hundred directory texts, the fact will nevertheless
stand, and the act done will be deemed to be
legal and binding.
This doctrine came from Roman maxim factum
valet quod fieri non debuit which literally means
that what ought not to be done become valid
when done.

Sources of Hindu Law
Founder of Mitakshara School Vijaneshwar said,
sources are the means of knowing law.
Hindu law is based on tradition and analytical in
nature. Law is part of Dharma. So the sources of
Dharma are the sources of Hindu law. But in a
secular point of view- it is a man-made institution
of control.
Sources may be arranged in the following
order-
Legal profession &
Ethics
History of Government
of Bangladesh since
independ...
Some Question Answer
of Constitutional law
of BD
Some Question Answer
of Legal History of BD
Contributors
Provat Nazmi
Khaled Saifullah
i) Legislation
ii) Dharma Shastras
The Vedas
The Smritis
The Puranas
iii) Sadachar (Custom)
iv) Commentaries and Digests
v) Precedents
vi) Principles of justice, equity and good
conscience.
These laws are applicable as long as they are
consistent to the Constitution.
Krishna Sing v. Mathura Ahir- The ban which
was upon the Sudras is abrogated, because it is
inconsistent with the Fundamental Rights of the
Constitution.

i) Legislation-
Main legislations are-
The Caste Disabilities Removal Act, 1850
The Hindu Widow Remarriage Act, 1856
The Majority Act, 1875
Transfer of Property Act, 1882 (overrides
the Hindu Law of Property).
The Disposition of Property Act, 1960
The Succession Act, 1956
The Child Marriage Restraint Act, 1929
The Special Marriage Act, 1954


ii) Dharmashastra-
The term Shastra came from shas which
means to teach. Dharmashastra means
teacher of dharma. It has two meanings-
a) Comprehensive- it includes Vedas, Smritis
and Puranas
b) Limited- It includes only Smritis.

Dharma is divided into six-
i) Barna Dharma It is Dharma of the
castes. It provides the laws applicable to
different castes.
ii) Ashrama Dharma It means four stages
of life: (a) Brahmacharya (b) Grihastha (c)
Banaprashta (d) Sanyas.
iii) Barnashrama Dharma It is the
combination of the first two Dharmas.
iv) Guna Dharma It means inherent nature
of a thing.
v) Nimitto Dharma It is the secondary
Dharma in absence of primary Dharma.
vi) Sadharana Dharma which is proper
Dharma for a person in ordinary situation.

Vedas- Synonym to Vedas is Shruti. Shru
means to hear. Hindus believe that the Vedas
are heard from God and written. There are
four Vedas- (a) Rig Veda (b) Yajur Veda (c)
Sham Veda (d) Atharva Veda.
Each Veda has three parts-
i) Sanhita
ii) Brahmin It describes what the duties are
iii) Upanishad It describes the consequence
to perform a duty.

Smriti- Derived from Smri which means to
remember. People remembered from the
words of the sages, it is not from the God
directly.
Smriti is divided into 2 parts-
i) Dharma sutra- it is mainly prose
ii) Dharma Shastra- it is mainly poetry
(sloka).
Exact number of Smritis is unknown. Some
authentic Smritis are-
Manu, Vaisistha, Brihaspati, Yagnavalkya,
Vyas, Kotilya, Parashar, Katyana.

There are 3 rules in every Smriti-
i) Achar Morality
ii) Vyavahar Rules that the king or judge
used to apply in settling disputes in the
administration of justice.
iii) Prayaschit Penal provisions for
commission of a wrong. There are both
substantive and procedural laws. It has 2
elements- (a) An inner intention to reform
oneself, (b) A readiness for punishment for
committing an offence.

If there is conflict between 2 Smritis, there
is difference in opinion. According to
Brihaspati, Manu is above all Smritis.
According to some, one has to choose
among to conflicting Smritis. According to
others, the more logical one will be accepted.

Purana- It is a book containing five matters-
i) Creation
ii) End of creation
iii) Dynasty
iv) Manavantar
v) History of ancient dynasties
There are 18 Puranas, 18 Upa-puranas and
18 Upapa Puranas.
If there is conflict between Purana and Smriti,
Smriti shall prevail.

iii) Sadachar (Custom)-
Custom is one of the most important sources of
Hindu Law. Where there is a conflict between a
custom and the text of the Smritis, such custom
will override the text.
Collector of Madura v. Mootoo Ramalinga
(Ramnads case) Clear proof of usage will
outweigh the written text of law.
Customs are divided into-
(a) Local customs- are confined to a particular
locality like a district, town or village.
(b) Class customs are the customs of a caste
or a sect of the community or the followers of a
particular profession or occupation.
(c) Family customs are confined to a
particular family only, and do not apply to those
who are not members of such family.

Essentials of valid custom-
i) Ancientness A custom must be minimum
100 years old.
ii) Certainty - Universality in observance is
absolutely necessary.
iii) Reasonableness It should be in
accordance with rules of justice, equity and good
conscience.
iv) Continuity It must be continuous without
interruption.
v) Public policy It must not be against public
policy.
vi) Uniformity It must be uniformly performed.
If a custom meets the abovementioned
requirements, it becomes binding.

iv) Commentary and Digests-
Commentary is the interpretation of the Smritis
by the scholars. It also includes the customs and
usages which the commentators found
prevailing around them. Despite the fact such
commentators have modified the original texts in
order to bring them in line with the local customs
and conditions, the commentaries are now
considered to be more authoritative than the
original texts themselves.
Collector of Madura v. Moottoo Ramalinga-
Clear proof of usage will outweigh the written
text of the law.
These commentaries gave rise to different
schools known as the Mitakshara and
Dayabhaga.
Collection of commentaries is called Digests.
Features of commentary and digest-
i) They have tried to make the subject simple
and easy to understand.
ii) We find quotations of several works (texts)
iii) Topics of Dharma have been widely classified
by the digest
iv) They have included custom and usages
prevailing during their time
v) Commentary and digests kept law abreast of
life.
A lot of commentaries have been made on
Manusmriti. These are called Manu Tika.
Commentaries were started to be written down
from 4-5 century and digests were from 12
century.
Authority of commentary and digest-
Atmaram v. Bajirao If Commentary and
digest conflict with Smriti or Purana,
Commentary and digest shall prevail.

v) Precedent
vi) Principles of Justice, Equity and Good
conscience

Schools of Hindu Law
School means rules and principles of Hindu Law
which are divided into opinion. It is not codified.
There are two Schools of Hindu Law- (a)
Mitakshara (b) Dayabhaga.
Mitakshara School prevails throughout India
except in Bengal. It is a running commentary on
the code of Yagnavalkya. Mitakshara is an
orthodox School whereas the Dayabhaga is
Reformist School.
The Mitakshara and Dayabhaga Schools
differed on important issues as regards the rules
of inheritance. However, this branch of the law is
now codified by the Hindu Succession Act, 1956,
which has dissolved the differences between the
two. Today, the main difference between them is
on joint family system.
Mitakshara- Rights in the joint family property is
acquired by birth, and as a rule, females have no
right of succession to the family property. The
right to property passes by survivorship to the
other male members of the family.
Dayabhaga- Rights in the joint family property
are acquired by inheritance or by will, and the
share of a deceased male member goes to his
widow in default of a closed heir.

Differences between the two Schools in
Coparcenary-
Mitakshara Dayabhaga
i) Right of a son by
birth in the ancestral
property equal to the
interest of his father.
i) A son is entitled to
his ancestral property
only on the death of
his father. The father
is the absolute owner
of his property in his
lifetime.
ii) A son becomes
coparcener right after
his birth. His right is
applicable to the
property of his
grandfather and grand
-grandfather.
ii) A son becomes
coparcener by death
of his father. This right
is not available within
the property of his
father, grandfather or
grand-grandfather.
iii) Everyone is
entitled to the
property as a unit.
Their shares are not
defined. They have
only the commodity of
ownership. There is
joint-tenancy.
iii) Everyones share
is defined. There is
tenancy-in-common.
iv) One cannot
transfer his share to
the third party.
iv) One can transfer
his share.
v) The joint-property
can be partitioned. In
that case, it will be
partitioned as it was in
case of the father.
v) As the shares are
defined, one can
easily partition with
his share.

Differences between the two Schools in
Succession-
Mitakshara- Property of a deceased Hindu is
partitioned into two ways as the property is of
two types- (a) Ancestors property, (b) Separate
property.
Ancestors property is partitioned in accordance
to the Rules of Survivorship. But a Separate
property is partitioned to the descendants.
Dayabhaga- Property is of two types- (a) Joint,
(b) Separate. The descendants inherits the
property whatever type it is.

Mitakshara- In default of close heir, brother and
immediate survivors inherit, the wife does not
inherit.
Dayabhaga- If coparcener dies, his widow will
get the property in default of a close heir but she
cannot alienate.

Mitakshara- The order of heirs is decided by
mereness of blood.
Dayabhaga- The order of heirs is decided by the
competence to offer Pinda and Sraddho to the
deceased.
Effect of migration
A person follows the school of his area. But if he
migrates to another place, he will follow the
School of that locality. This has been decided in
various cases-
Gope v. Manjura Govalin- The burden of
proving migration lies on him who pleads it. The
original place of a family can be inferred from the
chief characteristics of that family.
Keshavarao v. Swadeshrao, 1938- Migration
means leaving to another place forever. But if a
place is divided into two administrative area, that
will not be regarded as migration.
Moolchand v. Mrs. Amrita Bai- A person
migrates will all of his personal laws. Personal
law unlike local law moves with whom he covers.
Notraz v. Subba Raya- A person can be given
an option to give up the law of the old place and
adopt the new one.


Hindu Marriage
Hindu marriage is a religious sacrament. Unlike
Islami law, it is not contract. Hindu philosophers
treated Hindu marriage as a part of Achar
(custom) but not a part of law (vyavahar). It is an
act by performance of which a thing becomes fit
for a certain purpose. These purposes are-
i) Performance of sacrifice
ii) Pleasure and procreation of children (Children
save their fathers from hell-fire)
Marriage is compulsory for all Hindus except for
lifetime students.

Forms of marriage-
There are 8 forms of marriage, 4 of them are
approved and 4 of them are not approved.
Approved forms are-
Brahma, Daiva, Arsha, Prajapatya.
Unapproved forms are-
Gandharva, Asura, Rakshas, Paishacha
Only 2 forms are available now- Brahma and
Asura. Brahma form is approved by law.
In Brahma form- Bride is a gift to the
bridegroom and there is no consideration.
In Asura form- The husband is giving an
amount to father of the bride. It is called Shulka.
It is called sale of the daughter by money.

Caste and marriage-
To marry in the same caste was not approved;
because a Hindu believed that people of the
same caste are Agnate (Agnate means where
there is no female intervention, i.e. Uncle etc.)
Marrying daughter of Agnate was not allowed.
Females of same caste were considered to be
the daughters of Agnates.
Unapproved marriages are of two types-
i) Anulom Marriage between male of a higher
caste and female of a lower caste. It is valid.
ii) Protilom Marriage between male of a lower
caste and female of a higher caste. It is invalid.

Swapinda relationship and marriage-
It is prohibited. It may arise in both Agnate and
Cognate relations.
Mitakshara- Marriage is not allowed in blood
relations.
Dayabhaga- Marriage is not allowed among
those who can offer Pindas.
But if someone marries in Swapinda, it will be
considered valid.

Guardianship in marriage-
It is necessary to have guardians in a Hindu
marriage.
List of guardians-
Mitakshara school-
i) Father
ii) Paternal grandfather
iii) Brother
iv) Other paternal relation of bride in order of
proximity (uncle, cousin)
v) Mother
Dayabhaga school-
i) Father
ii) Paternal grandfather
Posted by Khaled Saifullah at 1:50 AM
iii) Brother
iv) Other paternal relation of bride in order of
proximity (uncle, cousin)
v) Mother
vi) Maternal grandfather
vii) Maternal uncle
viii) Mother

Polygamy is allowed in Hindu law but Polyandry
(polygamy in which a woman has more than one
husband) is not allowed. Some states of India
prohibit polygamy.
Marriage is indissoluble. Divorce is not allowed
at all.
In widow remarriage there is conflict-
According to Manu- It is not allowed because
2nd husband of a pious lady is not to be found
anywhere.
But a woman can remarry in five situations-
i) Husband is unheard of
ii) Husband is deaf
iii) Husband becomes ascetic (Nastik)
iv) Impotent
v) Out caste



Labels: Application of Hindu law,
coparcenary, Dayabhaga, Mitakshara,
Sapinda, Sources, Stridhana, usufruct
6 comment s:
Replies
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Anonymous June 13, 2010 3:35 PM
Nothing found
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madhu December 15, 2011 8:00 PM
this notes are very excellent to refer for our
reading.... nice preparation...

anandhi.s
Reply
Anonymous January 9, 2012 10:04 PM
please focus more on mitakshara and
dayabagh school
Reply
Anonymous February 7, 2012
12:49 PM
as for dayabhag .. it is a system
which runs in west bangal and
assam. basic difference between
Mitakshra and dayabhag is that in
Mitakshra (prior to 2005) joint
property used to devolve by
survivor ship and in dayabhag it is
devolved by succession. but now
after amendment in 2005. this
difference has gone thin.
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Anonymous January 9, 2012 10:05 PM
*dayabhaga
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jewel333 March 27, 2012 6:45 PM
pleace focus necessity of hindu law
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