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-

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).

 

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-

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 (Ramnad’s 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) Everyone’s 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) Ancestor’s property, (b) Separate property.

Ancestor’s 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

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

 

 

179 comments:

  1. this notes are very excellent to refer for our reading.... nice preparation...

    anandhi.s

    ReplyDelete
  2. please focus more on mitakshara and dayabagh school

    ReplyDelete
    Replies
    1. 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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