This article is written by Sangeet Kumar Khamari and further updated by Titas Biswas. The authors delve into the nuances of Hindu law in India by articulating its origin, sources, and nature. Further, the authors have elucidated legislative Acts and schools that constitute the governance under Hindu law. This article provides a tour of the realm of Hindu law in India, where it has solidified its presence even in the Constitution of India.

Introduction

To begin with, it must be noted that Hindu law is a derivative of customs and usages, traditions, beliefs, and modern legislative structure. The prime study under Hindu law revolves around the concept of Dharmaśāstras. The concept of Dharma also eradicated the practice of monarchy and immunised law from the interference of the king. The Vedic period dates back around 4,000 to 1000 B.C., consequently making it 6,000 years old. 

Recent research done by the students of Delhi University helped in discovering that the period is rather 8,000 years old. Hindu law is considered to be of the same age, given its correlation with the Vedas and their application in today’s date. The structure of Hindu law is well-entrenched in Hindu philosophy and religious beliefs, and the principles are also reflected in modern Hindu law and its branches. The population of this world is 8 billion, out of which 1.38 billion people live in India currently. India is a secular state where religious beliefs are diversified in nature. The Indian legal system pursues the following kinds of laws:

1. General law

Laws that pertain to its applicability universally without compelling any specific group of individuals are general laws. These laws govern every individual to comply with their provisions and are civil in nature. Such laws can either be statutory, procedural, or substantive laws.

2. Personal law

Personal laws may be referred to as the laws that elucidate the matters of marriage, inheritance, divorce, guardianship, wills, etc., of an individual. These laws may differ from one to another, as these laws are applicable precisely to a certain group of individuals, mostly in accordance with religion. Personal laws are mostly customary laws, as customs are one of their primary sources. In India, the Hindu Marriages Act, 1955, the Dissolution of Muslim Marriages Act, 1939, the Parsi Marriage and Divorce Act, 1936, and the Indian Christian Marriage Act, 1872 are prevalent and these are a few of many examples of personal law.

Origin of Hindu law

The Hindu law parades for one of the oldest civilised laws in the books of history. With its sources stemming from the primary origin of approximately 2500 years, Hindu law is considered to be the most ancient law. The primary sources were the texts written in Sanskrit composed between 500 BCE and 500 CE, known as Dharmasastras. These shastras were considered to be divine revelations, which also became a part of the Vedas. The Vedas are a compiled body of religious texts that are predominant in Hindu religious beliefs, entrenching fundamental principles as customary laws. 

The Britishers in the year 1772 made efforts to implement Dharmasastras in the ambit of Hindu law for the Anglo-Indians. It was opinionated by them that imposing English laws on the Indian people would repel them from following such laws. This led to the implementation of Hindu philosophy in colonial laws as well as judicial precedents. Sir William Jones, who acted as a Judge of the Bengal Supreme Court around 1783-1794, was allured by the Hindu philosophy and learned Sanskrit in order to interpret texts from the digests and commentaries to implement them in his judgments. The creation of Anglo-Hindu law could be another example of how Hindu philosophy influenced the colonial rulers.

Gradually, around 1955-56, the lawmakers decided to incorporate religiously stimulated principles such as laws regarding marriage, succession, minority and guardianship, and adoptions and maintenance. These numerous legislative Acts reflect how diverse is the realm of Hindu law. The author, later in this article, discussed the most prevalent statutes in detail.

There are apparently two views regarding the origin of Hindu law, which are; Divine origin, supported by Hindus and their belief and; Customary laws, believed by the western jurists. Following are an elaboration of these views:

Divine origin theory

This classification concerning the origin of Hindu law is believed to be derived from divine origin, i.e., from the texts of vedas. Such texts are considered to be a revelation from the divinity and later reduced into written craft, which departed teachings of Hindu law. It is believed that the divine teachings are Apauruseya, which imply not belonging from a human origin. It is firmly perceived that the revelations from the texts of vedas and other religious scriptures bestowed certain teachings and philosophies which have been imbibed in the realm of Hindu law. 

The teachings which are derived from the holy scriptures of vedas and smritis  include moral and social conduct, legal principles and philosophies of life. These lessons are considered to be imparted into the Hindu legal jurisprudence, which was later substantiated through various commentaries and digests written by eminent scholars and researchers.

Customary origin theory

This classification of the sources of Hindu law has emerged from the western jurists and their opinions regarding the incorporation of customary usages into the practice of Hindu legal philosophy. The Western jurists were not a firm believer of sacred texts or divine revelation and depended upon the practices of usages and the prevalent customs. It is believed that at the time of the inception of the Aryans in India, they accepted certain usages as customs and followed it as norms, which were further modified by the Bhrahmins. 

It was opinionated by the jurists of the Western culture that the practices prevalent among a certain group or community proves to be the fundamental of the principles of Hindu law. They considered the usages to be law, given the nature was customary which reflected the similarity with the Hindu legal jurisprudence. 

However, this theory was disregarded by Henry Maine, who believed Hindu law to be one of the oldest pedigree of customary laws, which is governed through ancient scriptures and holy texts. He further demonstrated that personal laws concerning marriage and divorce, inheritance, minority and guardianship, family matters, adoption etc. are well established through various historical scriptures, which are bestowed through divine revelation. 

Schools of Hindu law

The emergence of schools of Hindu law can be traced from the necessity for the interpretation of sacred scripture, and classifying various customs and usages practised in a particular territory or community. The theory of “schools” evolved from Mitakshara and Dayabhaga, which were perceived as a component of the British administration, resulting from an effort to outline Hindu legal tradition in order to codify the same.

Prior to the ruling of the Britishers, there was an exigency of a set of codified Hindu laws. Hindu law was purely practised upon customary laws and religious texts, subject to interpretation by the researchers. The term ‘schools’ was first labelled by H.T. Colebrooke, who was a British scholar and researcher. He, with his research discovered various interpretations, from across the Nation, which he called ‘schools’. 

Mitakshara

The Mitakshara School of Hindu Law is one of the two significant legal traditions, fundamentally known for its commentary on the Yajnavalkya Smriti, which was authored by Vijñaneśvara, who was a 11th-century scholar. This school is widely implemented across India, except for the states of West Bengal and Assam. However, its practice diverges regionally because of its varied customary rules, resulting in various sub-schools and jurisdictional contrast.

Under the context of Mitakshara School, a property is held by the coparceners ie., through joint heirship, and the rights of a son are inherited by birth. The share of a coparcener in the joint family property keeps fluctuating due to the birth or death of other coparceners, which infers that it is not a fixed or absolute right. The Mitakshara system endorses agnate succession up to the fourteenth degree of descent. Mitakshara school of Hindu law is further subdivided into five sub-schools, which are briefly discussed as follows:

• Benaras law school 

The Benares School of Hindu Law, also called the Varanasi or Kashi School, is one of the significant sub-schools that is governed by the Mitakshara tradition. It is prevalent in states like Uttar Pradesh, Bihar, Madhya Pradesh, and parts of Orissa. This sub-school integrates teachings from some of the major commentaries penned by Viramitrodaya, Vivada, and Nirnyasindhu. The Benares School emphasises on concepts relating to coparcenary and joint family property, which concentrates on male descendants inheriting ancestral property by birth. The Benares School, if compared to sub-school closely adheres to Mitakshara principles, with a strong focus on inheritance by male heirs.

• Mithila law school

The Mithila Law School is mostly prevalent in the regions of Tirhoot and North Bihar. This school focuses on the commentaries of Vivadaratnakar, Vivadachintamani, and Smritsara. The teachings and writings of the sages and old scholars were formalised during the medieval period. The Mithila School is acclaimed for its stringent adherence to the ancient texts and rituals, considering it to leave a significant emphasis on traditional ceremonies and customs in legal practices.

• Maharashtra or Bombay Law School

This school of law holds its jurisdiction over areas like Gujarat, Karana, and other regions, particularly where Marathi is widely spoken. Texts by Vyavhara Mayukha and Viramitrodaya are one of its key authoritative texts. This school of Hindu Law acknowledges the distant relatives (female bandhus) as the legitimate heirs. The group of female bandhus or distant relatives comprises both agnates and cognates, which extends to relatives within five degrees of kinship from a common ancestor, further including individuals who are connected through female lineage. 

• Madras law school

This classification of Mitakshara school encompasses the entire southern region of India and falls under the principles acclaimed by Mitakshara law school. It derives heavily from authoritative texts like the Smriti Chandrika, Parasara Madhaviya, and Viramitrodaya. The Mitakshara being its primary source, the other works hold significance within the school. 

The Madras School strictly conformed to the Vedic principle of generally excluding women from inheritance. It interpreted texts of the Sruti to suggest that no female ancestors, apart from the daughter, mother, and females who were explicitly granted inheritance were considered ineligible to inherit property. However, with time, additional female heirs, apart from those specifically recognised, were gradually granted inheritance rights.

• Punjab law school

This classification of Mitakshara school is a branch of the school, which was primarily developed in East Punjab. Viramitrodaya is one of the pivotal commentaries that is associated with this school. Additionally, the local customs of the particular region influenced greatly in the formation of this sub-school.

• Mayukha school

According to the principles of Mayukha school, the practice of succession is based on the principle of propinquity i.e., blood relationship, which contrasts with doctrines of the Dayabhaga School. The Bombay High court, in a case, noted that the Mitakshara faces a dilemma about the position of a uterine sister in the line of heirs. However, the Vyavahara Mayukha expressly places the sister immediately after the grandmother in the order of succession. The Bombay High court takes this stance into account while interpreting the absence of any regulation by Mitakshara school on the issue.

Dayabhaga

The Dayabhaga school of law was predominantly prevalent in the areas like Assam and West Bengal and is considered to be one of the most predominant schools of Hindu law. It derives its principles from various digests and prominent smritis, keeping its primary focus on inheritance, partition, and joint families. P.V. Kane, who was a scholar, historian, and former Rajya Sabha member, established that the Dayabhaga School originated between 1090-1130 A.D. This school of law was enunciated to eliminate the outdated and artificial inheritance practices.

The fundamental principles of this school addressed and rectified the inadequacies and restrictions of earlier principles. The School eventually expanded the list of heirs to include numerous cognates that were previously excluded under the Mitakshara School of Hindu Law. This school of law was derived from several key commentaries, which includes Dayatatya, Dayakram-sangrah, Virmitrodaya, and Dattaka Chandrika.

The Dayabhaga school of law recognises the concept of individual ownership, where a property is exclusively held by an individual throughout their life. Under the Dayabhaga system, a property is inherited by succession upon the death of the owner, rather than on the birth. This phenomena enables the heirs to then receive fixed and specific shares of the property. After the death of the property owner, an individual heir has the right to request a partition of the property under this system of Hindu law.

Concept of Dharma

According to Hindu jurisprudence, Dharma means the duties that one has to perform in his lifetime. The literal meaning of the Sanskrit word ‘Dharma’ is ‘the way of living’. Dharma is one of the four ultimate objectives under the principle of ‘Purushartha’, whose literal meaning is ‘the ultimate purpose of a person or soul’. The other three purposes are arth (economic prosperity), kama (pleasure), and moksha (spiritual liberation). Dharma is considered to be the preserver of this universe, the ultimate path of one’s life, and the controller of man’s conscious and subconscious mind. 

Dharma is not bounded by any religion in particular but is a universal set of righteous rules and duties. It is said to be a set of legal duties of an individual. Dharma may be construed differently in different religions. According to Buddha’s teachings, Dharma represents cosmic law and order. Similarly, in Jainism, Dharma symbolises the teachings of Tirthankar, who depicts the purification of an individual. 

While we deliberate on dharma in relation to law, it can be said that it is an Indian branch of natural law. The doctrine of natural law under the law of jurisprudence was incorporated into the Hindu philosophy in ancient times, which was strongly supported by eminent personalities like Max Muller.

Origin of Dharma

Dharma is said to have originated from various religious texts, Hindu scriptures, and Vedas. It has also often been cited in the Holy Book of Bhagavad Geeta, in spiritual guidance and teachings by the divinities. According to verse 2.1 of Manusmriti with the commentary of Medhatithi, Dharma has been defined as “Learn that Dharma, which has been ever followed by, and sanctioned by the heart of, the learned and the good, who are free from love and hate.” In the context of Dharmashastras, Vashishtha has defined Dharma as “Dharma is that which is enjoined in Śruti and Smṛti.’’

There are many other commentaries that portray teachings and texts concerning Dharma that originated from Sruti and Smriti. Both religious texts guide ethical and legal behaviour in the realm of Hindu law.

Nature of Dharma

Under Hindu jurisprudence, the emphasis lies greatly on duties rather than rights. The nature of Dharma is diversified and varies from person to person: a king must maintain law and order in his kingdom, a farmer’s duty is to cultivate crops, a doctor has been assigned the responsibility to heal human beings, whereas a lawyer’s duty is to fight against injustice. Being a highly religious concept in nature, Dharma is multi-faceted, encompassing a broad spectrum of laws and customs that are an indispensable part of Hindu law. For example, Manusmriti encompasses several areas, such as religion, administration, economics, civil and criminal law, marriage, succession, etc., which are the fundamental topics covered in our legal texts.

Sources of Hindu law 

Hindu philosophy is derived from a lot of religious and spiritual texts from ancient times, and to trace back to the age-old sources, numerous commentaries and digests have been written and followed. However, modern sources have established their presence through legislation, authoritative precedents, and the principles of equity, justice, and good conscience. The existence of law is to cater to social needs and therefore, it is always optimal that the law should align with the changing needs of society. The law must progress with the society in conformity.

The exploration of the sources of Hindu law is a study of various stages of advancement, which enhanced it and added colours, for it to conform to the changing needs of society. Hence, Hindu law and its sources may be classified into two categories based on the period. Following is a detailed analysis:

Ancient sources of Hindu law

The sources, which are derivatives of customs, spiritual or divine texts, inscriptions of the holy books, digests, and commentaries of ancient texts, are ancient sources of Hindu law. They may be briefed as follows:

Shruti (Vedas)

The literal meaning of the Sanskrit ‘Shruti or Sruti’ is ‘that which was heard’. Srutis are regarded as the primary source of Hindu law. It was said that rishi munis (sages) meditated on the peaks of the Himalayan mountains and received divine revelation, who further preached those teachings to their disciples. Such wisdom was then further compiled and documented, which later came to be known as the Vedas. Srutis are regarded as the primary source of Hindu law.

Vedas are collectives of religious texts, classified into four categories: Rig Veda (deals with rituals, sacrifices, and mantras), Yajurva Veda, Sama Veda (which is a compilation of melodies and chants), and Atharva Veda (which deals with Vedic charms and spells for everyday life). These Vedas are a repository of knowledge and each of them comprises three parts: Samhita, which consists of spiritual hymns; Bhramanas, which encompass duties and obligations and the proper way to perform them; and Upanishads, which elucidate the essence of these duties. 

Smritis and Dharmasastras

The literal meaning of the Sanskrit word ‘Smriti’ is ‘memory’ or ‘what is remembered’. The texts of Smriti demonstrate the notions that the sages recorded from their memories. These texts are considered lost textual scriptures of the Vedas, which were extracted from the divine revelations encountered by the sages. 

The Smritis are thus inclusive of human intervention in the formulation of the law, comprising both the substantive and procedural aspects. Many of the distinguished sages have penned the divine revelations; Manusmriti is the most prevalent among them. Many other eminent sages, like Yajnavalkya, Narada, Parashara, and Brihaspati, have also inscribed their own smritis, contributing substantially to the Hindu legal thoughts and ethics. Smritis are further classified into Dharmasutras and Dharmashastras. 

Dharmasutras were manuals that guided the sages’ ways of teaching to their students. These were written primarily between 800 and 200 BC; initially drafted in prose but later verses were included. These sutras are a blend of Vedas with local customs and usage and have their author’s name inscribed on them, so as to decipher which shakha they belong to. A few distinguished sages who authored Dharmasutras were Gautama, Baudhayana, Apastamba, Harita, Vashistha, and Vishnu.

Dharmashastras are texts that are deemed to be followed by all individuals. These texts are derived from the Puranas rather than from the Vedas, like in Dharmasutras. These were primarily constructed in metrical verses, which were derived from the Dharmasutras themselves. Nevertheless, the Dharmashastras were much more clear and systematic in nature. These texts covered Āchāra (religious practices), Vyavahāra (civil law), and Prāyaścitta (expiation).

Manusmriti

The Manusmriti, interchangeably called ‘the Laws of Manu’, is considered to be one of the most credible texts in the dimensions of Hindu law. It prescribes the civil code of conduct of an individual and the preservation of Dharma by them. The text also outlines the behavioural conduct of men and women according to the classes or varnas that it prescribes. Those are- Brahmin, Kshatriya, Vaishya, and Shudra. It further outlines laws that are civil in nature, such as contracts and business. 

The Manusmriti recognise four sources of sacred law. They are- the Vedas, the virtuous behaviour of individuals, the conduct of holy men, and self-attainment. The texts claim that the social laws which it prescribes are in alignment with the teachings of the Vedas. It also provides for the concept of ‘Rajdharma’, which literally means ‘statecraft’. It offers the mannerism and craft of ruling a province. 

The texts of Manusmriti reflect its focus on the preservation of social order, highlighting the caste hierarchy and the control of women. The Manusmriti outlines the prohibition of inter-caste marriage and has laid down certain norms regarding laws on marriages. The texts of Manusmriti often offer insights into politics, social conduct, religious customs, and related ethics, statecraft, and many more. 

Commentaries and digests

Commentaries and digests are written and compiled texts, inspired by the divine revelations from eminent sages and munis. The work done to elaborate a specific smriti is known as commentary. These commentaries were constructed after 200 BC. Digests are also a framework of various written materials of srutis and smritis by legal authors and scholars in a summarised manner.

Many of such works deal with contradictions ensembled in smritis, which resulted in an eclectic interpretation of the law. Mitakshara and Dayabhaga, two significantly major schools of Hindu law, emerged from the branches of digests and commentaries by eminent scholars. 

Customs

Custom may be perceived as a usage or practice followed by the people of an area, for a long period of time. Customs, in many areas, have much more weightage than legislative statutes. Basically, a usage that is antique in nature, not opposed to moral policy and law, reasonable, certain, and unambiguous, has been in practice perpetually is a valid custom. The term custom has been defined under Section 3(a) of the Hindu Marriage Act, 1995. There are several principles under Hindu law that have been derived from customs and ultimately took the form of law. The smritis have also outlined the importance of customs in its texts. The scriptures in the smritis reflect that customs are the paramount law, and such a belief has been pre-existing. 

Essentials of a valid custom

• Antiquity: For a custom to be valid, it has to be of time immemorial and belong to the ancient age. The notion of time immemorial was derived from the law of England, which was inspired by the Canon law. Time immemorial is also an approach by the civil law, who interpreted it as a period of time so remote that no living person would have a memory of it. 

The Supreme Court in the case of Thakur Gokalchand vs. Parvin Kumari (1952) clarified the meaning to be inferred from ‘time-immemorial’, and held that “A custom may be proved by general evidence as to its existence by members of the tribe or family”. The court further stated that the English rule cannot be applied in the Indian legal system. 

• Reasonableness:  A valid custom must be reasonable and not be morally opposed and unjustifiable. The nature of a custom can be traced by its existence and the acceptance of it by the people. To examine its reasonability, the court may go back to its inception to formulate whether the custom has proven to be advantageous to society or the community or otherwise. 
• Continuance: A custom has to be in continuity to be valid. A valid custom must be acknowledged by the community and people that follow such custom. Any ceasement of such custom since the time of its inception may vitiate the validity of it. The Madras High Court in the case of Muhammad Mahamood Hussain Faroki vs. Syed Abdul Huq (1942) emphasised on the continuity of a custom and how even a general rule can be abrogated if a custom has been in existence and practised for a long period of time. The court in this case established this essential condition based on the circumstances of the case. It highlighted the nonintervention of any kind of contest from family members, while declaring the successive owner of the office of Khatib in a Mosque in Nellore, to be an acceptance, and held that to be an uninterrupted and a valid custom. 
• Certainty: For a custom to be valid must not be vague and be certain. By certainty, it implies that a valid custom must be precise, solid, and unambiguous. A custom, if not certain, can be traced by its nature and purpose. The Madras High Court in the case of Rangaswami Goundan And Anr. vs. Arumugha Goundan (1936) observed that a custom allowing the branches of a tree to overhang upon the neighbour’s land is vague and uncertain. The court further held that the hanging of branches of a tree would rather constitute to be a nuisance, which could never form a customary right.
• Aligned with the statutory provisions: A custom is not validated if it is in violation of any statutory provisions. Where customary law is considered to be at par with the legislation as regards the sources of law, it can however be declared obsolete as against the statutory provisions. 

Unlike many countries, India stands in its position that a custom can never be in conflict with statute law. This was observed by the Supreme Court in the case of Mohammad Baqar And Ors. vs. Naim-Un-Nisa Bibi And Ors. (1955). The court further stated that a customary right cannot override a statutory principle unless such customary right is established substantially and has been in practice for a long period of time.

• Obligatory in nature: A custom must be incorporated by people of a community as a practice of their rights. It must be identified as a right, and not a force of compulsion. For a custom to be legally binding, it must be recognised as an obligation that is naturally abided by, rather than something being compelled by an external force. However, such compliance must always be non-coercive in nature. 
• Peaceful enjoyment: A peaceful and unruffled practice of a custom validates such custom. There is an assumption that a custom is generated out of the consent of the participants of such custom, and such principle shall be vitiated if the custom is challenged in the court for a long period of time. Therefore, a custom must be out of any competition and must enjoy its existence without any challenges. 

Customs may be categorised as follows

• Local customs: Customs that are prevalent in a specific geographical area, may be known as local customs. Local customs may be perceived as a regular structural pattern followed by a group of people belonging to a specific geographical region. Local customs accompany people in case of migration. A change of territory would not affect the validity of a local custom. This makes local customs inclusive of both geographical local customs and personal local customs. 

These customs are valid as long as they fulfil all the requisites which also includes being antique primarily. The Bombay High Court has held in the case of Musammat Subhani vs. Nawab (1940) that a custom derives its force from being in practice for a prolonged period, therefore, obtaining legal recognition. 

• Family customs: Customs that are prevalent in a family for a long period of time, can be held as family customs. Such family traditions, if proven to be in alignment with all the requirements of a valid custom, may be recognised as law under Hindu law. A landmark verdict was passed by the Patna High Court in the case of Bikal Chandra Gope And Anr. vs. Manjura Gowalin And Ors. (1972), which stated that customs implemented by a family for a prolonged interval may be considered as valid personal law. The Patna High Court also quoted that, “Hindu Law is not merely a local law but is the personal law and part of the status of every family which is governed by it.”
• Caste and community customs: These customs are practised by a specific caste or community and are obligatory on the part of the members of such a community or caste. However, they must be in accord with the requirements of a valid custom. For example, in southern India, most in Tamil Nadu, some communities practise consanguineous marriages; uncle-niece marriages. This ritual is called ‘Maman Kalyanam’, and is based on the principle of returning a daughter into the family. However, in today’s era, due to several social and health issues, such customs are not highly regarded.

Modern sources of Hindu Law

Hindu law is deemed to be a blend of customary and legislative law. It is a branch of both forms of laws, structured into one body. The main modern sources of laws implemented under the ambit of Hindus are; judicial decisions, legislation, justice, equity, and good conscience. These three pillars shape the Hindu legal landscape, with codified laws. These include the Hindu Marriage Act of 1955, the Hindu Adoptions and Maintenance Act of 1956, The Hindu Succession Act of 1956 The Special Marriage Act, 1954, and several others. Similarly, judicial precedents play a key role in interpreting the existing laws and further dictating new binding laws. In the absence of any existing laws, justice, equity, and good conscience surfaces. 

Judicial precedents

Article 141 of the Indian Constitution mandates for a verdict passed by the Supreme Court to be binding and considered as the law of the land. Accordingly, many judge-made laws have developed into pervasive and compulsory laws. The precedents, over time, have overridden commentaries, and are assumed to be of greater importance. 

Before the inception of the Hindu Adoptions and Maintenance Act, 1956, several facets were modified by the Privy Council. These involved adoption laws, coparcener’s powers to alienate share, introduction to women’s rights, stridhan, and many more. 

Judicial precedents may be further classified as follows

• Original and declaratory: A verdict or judgement may be called as an original precedent when the ratio decidendi of such judgement has newly come to the surface. Original precedents are formally called as ‘judge-made laws’ which are later conceptualised in cases as references. 

Whereas, declaratory precedents are those that apply existing and already established legal principles. Declaratory precedents do not constitute as a source of law, while an original precedent is said to be the core principle.

• Authoritative or persuasive: Authoritative precedents are those that are passed down by the authoritative courts and which are binding upon the lower courts. These precedents are considered binding laws. 

Persuasive precedents, on the other hand, are those that are compelling in nature but are not obligatory. A court may take inspiration from such precedents that are persuasive in nature and set great examples, establishing principles. 

Legislation 

Hindu law is said to be one of the most developed and advanced personal laws due to its codified nature. The contemporary Hindu law is a result of many legislative enactments and judicial precedents that paved the path for its evolution. Legislation has helped in reforming and even replacing certain traditional textual laws. Prior to the British period, Hindu law varied across different sects of Hindu due to its diverse commentaries and digests. With the commencement of statutory acts, there is uniformity in the laws as well as their applicability. Acts like the Caste Disabilities Removal Act, 1850, the Hindu Widow’s Remarriage Act, 1856, the Indian Majority Act, 1875, the Transfer of Property Act, 1882, the Guardian and Wards Act, 1890, the Child Marriage Restraint Act, 1929 (Sharda Act) have proven to be transformative tools in the modernisation of Hindu law. 

These Acts are the products of the legislation that lays down provisions and guidelines for issues that are civil in nature. The legislation has helped to pave a path in shaping the Indian legal system in ways that accelerated in curbing social evils. 

The Caste Disabilities Removal Act, 1850 was a notable step towards eliminating the rigid caste-based atrocities. This Act ensured non-discrimination of individuals on the basis of caste and race. It further permitted the acquiring of property and having access to legal remedies, irrespective of caste and race. 

The Hindu Widow Remarriage Act ensured the legal and social status of women all over India. This Act rationalised the legal status of women, which is mostly lost in the patriarchal forest of the society. Prior to the commencement of this act, widows faced social ostracism and neglect in the society, were tortured, and avoided basic social status in the society. 

The Indian Majority Act, established in the year 1875 was proved to be an important piece of legislation that served a codified structure related to the laws of age and majority. This statute provided for a uniform legal standardised code in order to identify the adulthood of a being. 

The Transfer of Property Act has defined various dimensions of property related laws, including five kinds of transfer of a property, which are; sale, mortgage, lease, exchange, and gifts. This legislation ensured elaborative drafting of substantive as well procedural laws relating to the transfer of a property. 

The Guardians and Wards Act, which commenced in the year 1890 governs the laws regarding children and their affairs. It is concerned with the children who are vulnerable and isolated. The appointment of guardians and wards involves proceedings of court after property scrutiny. 

The Child Marriage Restraint Act of 1929, also known as the Sharda Act outlined certain guidelines, focusing on the protection of children (both girl and boy) by prohibiting marriages under the age of 14 (for girls) and 18 (for boys). This statute was proved to be a pioneer in eradicating one of the social evils of the society, which is child marriage. This Act mandated that a child be mature enough to understand the nature and consequences of such a huge responsibility as the institution of marriage. 

Justice, equity, and good conscience

The application of justice, equity, and conscience is the very principle of the existence of law. Hence, its presence is more of an inevitable element in the making of Hindu laws. The inception of these concepts may be traced back to the time of modern English judges, when they felt the need to apply principles of justice and equity, especially in the absence of any applicable laws or during conflicting provisions. 

The concept of justice, equity, and good conscience originated in England, in the year 1606, when the Court of Requests was established. The commissioner of the courts ordered the disposal of cases applying the principles of justice, equity, and good conscience. However, the application of such a principle in India was embarked on in the year 1780, during the presidency of Bengal. 

Sir Elijah Imphey, who was the pioneer Chief Justice of the Supreme Court of Calcutta implemented significant guidelines that find their places even in today’s date. He laid down that, in circumstances where there is an absence of codified or explicit provisions regarding matters, the mofussil and sadar adalats were directed to operate applying the principles of justice, equity, and good conscience. 

Such an implementation compelled the courts to address issues even in the absence of respective provisions, by the virtue of the principle of justice, equity, and good conscience. The courts applied this directive to ensure that there is no loophole left in the judicial system and that no individual suffered due to the absence of adequate legislation. 

Justice V. R Krishna Iyer, once in a landmark judgement, dictated that there is a need to imbibe the principles of justice, equity, and good conscience into the societal and cultural norms of Indian legal society. He imparted this knowledge to distinguish the ideologies between the Britishers and Indians. 

The principles of justice, equity, and good conscience are dimensional and multi-faced in nature and hold the ability to stretch its sphere beyond provisional laws. The Indian Constitution provides the Supreme Court with a huge ambit of power under Article 142. The many interpretations of the Supreme Court have widened the scope of interpreting statutes and the Constitution. 

In the landmark case of M. Siddiq & Ors vs. Mahant Suresh Das & Ors, the Supreme Court interpreted that Article 142 is a straightforward interpretation of justice, equity, and good conscience. It further observed that, although there is no direct application of the principle or the court is not mandated to apply the provision in all of its cases, several constitutional provisions imbibe it through their interpretation, scope, or context. Articles 32, 136, and 226 incorporate the doctrine of justice, equity, and good conscience while offering an impactful way of achieving justice.

Who are Hindus

There has been no strict definition of ‘Hindu’ in the ancient books. However, the word ‘Hindu’ emerged from the onset of the Greeks who addressed the inhabitants of the Indus Valley as ‘indoi’ and gradually became renowned. Although, there is no strict definition, but, after the enactment of the Hindu Marriage Act, 1955, there is a sense of the application of the acts. 

The Hindu Marriage Act, 1955 prescribes a provisional definition under Section 2(1)(a) and (b). According to Section 2(1)(a), a person is said to be a Hindu by religion who is a follower of Virashaiva, Lingayat, or a believer of Brahmo, Prarthana, or Arya Samaj, whereas Section 2(1)(b) includes persons who are Buddhists, Sikhs and Jains by religion within the purview of Hindus. The Section further outlines that a person who is not a Muslim, Parsi, Christian, or Jew is Hindu. Similarly structured definition as regards who is a Hindu has also been provided under Section 2(1) of the Hindu Succession Act, 1956, Section 3 of the Hindu Minority and Guardianship Act, 1956, and Section 2 of the Hindu Adoptions and Maintenance Act, 1956. 

Furthermore, the Indian Constitution has provided a legal clause as regards who is Hindu, which is mentioned under Article 25 (2)(b), Explanation II. This definition of who is Hindu is as well similarly structured as provided under legislative statutes of Hindu law. 

Any person who pursues the Hindu religion in any form, whether by practising or professing, is a Hindu. Hindu religion is multidimensional and hence, to interpret it strictly is a failed attempt. However, the Bombay High Court in the case of Sastri vs. Muldas Bhuradas (1959), made an intrepid effort to define ‘Hindu’ and interpreted that Hinduism does not revolve around a single divine entity and does not adhere to a single doctrine. 

By conversion

In the case of Perumal vs. Ponnuswami (1970), an interpretation of the perspective of Hinduism was derived. The Supreme Court held that a marriage conducted between a Hindu and a Christian, according to the Hindu rites, where the woman converted to Hinduism before, is valid. The court further observed that a person may become a Hindu if they express their intention, expressly or by their actions. In such a situation, the intention of the conversion must be taken into consideration and the absence of ceremonial conversion or purification may not vitiate the conversion and that person may be called a Hindu. For conversion, the person should have a bonafide intention and also shouldn’t have any reason to be converted.

Section 2(1), explanation (c) of the Hindu Marriage Act substantiates that “any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion” is a Hindu. Thus, a person who ceases to be a Hindu, becomes Hindu if he reconverts to either Hindu, Buddhist, Jaina or Sikh. On the account of reconversion to Hinduism from another religion, no particular ceremony is mandated to be performed, unless the caste to which the conversion happens, mandates to do so, as was held by the Supreme Court, in S. Anbalagan vs. B. Devarajan & Ors (1983).

By declaration 

The Kerala High Court in the case of T. G. Mohandas vs. Cochin Devaswom Board (1975), went one step further from the notions set by the Supreme Court in the Perumal case. The Kerala High Court held that if a person declares himself to be a Hindu, without a mala fide intention or any underlying motive, is said to be a Hindu. Singer K. J Yesudas converted himself from being a Latin Catholic Christian to a Hindu by declaring that he follows Hinduism. Such a declaration of conversion is a valid affiliation. 

By birth 

Under the modern Hindu law, a person will be a Hindu under the two conditions; 

(i) If both his parents are Hindus

A child born to both Hindu parents is a Hindu. In a situation where one of the parents is Hindu and the other one is Sikh or Jain or Buddhist, the child will be a Hindu. What is material is the religious identities of the parents at the time of the child’s birth. If one of the parents converts from Hinduism to another religion, and the child is brought up as per such religion, he may cease to be a Hindu. Section 2(1), explanation (a) of the Hindu Marriage Act, 1955 states that “any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;”

(ii) If one of his parents is Hindu and has been brought up as a Hindu. 

Section 2 (1) explanation (b) substantiates that any child, who might be a legitimate or illegitimate, may be called a Hindu if either of his parents is a Hindu, Buddhist, Jaina or Sikh by religion and has been brought up as a member of such community or tribe, that follows the traditions and culture of one of these religion. 

It must be so that such an individual has been raised in an environment where cultural ethics and traditions of any of such religions were prevalent and in practice. This provision of Hindu customary law highlights the importance of upbringing, parentage and the social culture of an individual in determining the religious identity of such an individual. 

The rules of being a Hindu by birth remain the same as above; at the time of a person’s birth, one of his parents was Hindu and he is raised as a member of the tribe to which the Hindu parent is associated, at the time of his birth. This was held by the Madras High Court, in the case of Myna Boyee vs. Ootaram (1861), where the court also observed that illegitimate children should be recognised as Hindus, and their rights must be governed by Hindu law. This case illustrates the nature of Hindu law in circumstances where the children are born even outside of the wedlock, i.e., Hindu law gives the status of being a Hindu if such an individual has been brought up in an environment where Hindu rituals and traditions prevail. 

To whom Hindu Law does not apply

Section 2(1)(c) of the Hindu Marriage Act, 1955 substantiates that, any person who is domiciled within the territories and does not follow the religion of Muslim, Christian, Parsi, or Jew, is a Hindu. It also provided under a provision that, if a person does not follow any above-mentioned four religions, they shall be governed by this act, unless it can be proven that prior to the commencement of this Act, the person would not have been subject to Hindu law. 

According to the explanation (b) of Section 2(1) of the Act, Hindu law does not apply to a child, either legitimate or illegitimate, whose father is a Hindu and mother is Christian and the child is brought up in the Christian community, as per their beliefs and traditions. Or also, a child of a Hindu father and a Mohammedan mother, because children arising out of such a wedlock are not Hindus either by birth or by religion. Hindu law also does not extend to the persons who convert themselves to Muslims, Christians, Parsi, or Jews, and to the Hindus who don’t follow the principles of Sastra.

Enactments through which Hindu Law is applied

Hindu Marriage Act, 1955

Marriage, deemed to be a sacrament entity, implies that it is sacred and inviolable. Under Hinduism, a marriage is complete only with the ceremonial rites and rituals. According to Manu, the tie between a husband and his wife is immortal and cannot be broken even after the death of either. In many religious scriptures and Samhitas, the wife is considered to be half of her man ie., ardhangini. According to Satpatha Bhramana, “The wife is severely the half of the husband.”

The Hindu Marriage Act, 1955 came into force to secure the rights of marriage for the wife and husband. This Act provides a diverse range of provisions and exceptions and has the capacity to accommodate the various communities, families, and sects of people. The intention of the Act is to preserve, protect, and reconcile the interests of the litigating parties, rather than compel them. It even accommodates voidable and void marriages, specifying specific provisions and exceptions to them. Earlier, the Parliament aimed to formulate the Hindu Code, and compile the four statutes; the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, and the Hindu Adoption and Maintenance Act, 1956.

The formation of the Hindu Marriage Act has seen quite a conflicting opinion amongst the lawmakers and the strict followers of the Hindu religion. They feared that the sanctity might be compromised while codifying the Hindu religious texts into laws. The Parliament ensured the inclusion of all the crucial elements in the Hindu code, which emphasised the integration of customs, texts from smritis and srutis, and commentaries. The Parliament, while incorporating the laws, also asserted that the Hindu law is multi-faceted and needs to evolve with the changing times. 

With the remarkable part played by the eminent commentators, Vijneshwara stands out prominently. One of the major transformations was brought by the introduction of two schools under Hindu law, which are, Mitakshara and Dayabhaga. Both the schools were a branch of smritis and srutis, however, the interpretations varied. Mitakshara was further divided into four sub-schools, which are, Benaras, Mithila, Maharashtra, and Dravida. This school of Hindu law is based on the principle of Janmasvatvada (ancestral ownership or ownership since birth). Dayabhaga, on the other hand, is prevalent in Bengal, Orissa, and also some parts of Bihar. This school is based on the principle of Upramasvatvada (hereditary rights or ownership arising after death). 

Important components of the Hindu Marriage Act, 1955

Interpretation Clause

Section 3 of the Hindu Marriage Act deals with definitions and interpretations of terms observed in Hindu law. This provision defines ‘customs’ and ‘usages,’ which play a crucial role in being one of the sources. This provision makes an effort to accommodate clauses that are indispensable in the area of Hindu law. Section 3(c) defines ‘half-blood’ and ‘full-blood’. Two persons are said to be related by half-blood when they share a common ancestor but have different parents (mothers). Whereas, ‘full-blood’ denotes a relationship between two persons through a common ancestor and the same parent (mother). Similarly, Section 3(d) defines ‘Uterine-blood’, which denotes a relationship between two persons through common ancestress and different parents (fathers). 

Other significant definitions under this clause include the ‘sapinda relationship’. This refers to the kinship that extends to three generations towards the maternal lineage and five generations towards the paternal lineage. Therefore, one is said to be sapinda of the other if one is the lineal ascendant of the other within these parameters. This has been provided under section 3(f) of this Act.

Conditions for a valid Hindu marriage 

The validity of a Hindu marriage is concluded by considering certain parameters which are mentioned under Section 5 of this Act. There are six provisions under this act which substantially underline conditions to constitute a proper Hindu marriage. 

• For a Hindu marriage to be valid, neither of the parties to the marriage should have an already existing spouse. This is provided under Section 5(i) of the Act. If a person enters into a second marriage, without divorcing his first wife, the second marriage shall stand to be invalid. Even the consent of the first wife would not validate the second marriage solemnised by her husband. This was also held by the Punjab Haryana High Court in the case of Rattan Chand vs. Shanti Devi And Ors. (1998)
• Section 5(ii) of this Act provides for the competency of a person to be a party to a valid Hindu marriage. It is provisioned under Section 5(ii)(a), that for a Hindu marriage to be valid, neither party to the marriage should be incapable of giving consent to the marriage due to unsoundness of mind. A person is not capable of marrying even if such a person is able to give valid consent but has been suffering from a psychological disorder to an extent that appears to be unfit for the procreation of children, as provided under Section 5(ii)(b). Section 5(ii)(c) states that a person who suffers from recurrent attacks of insanity, shall not be competent for a valid marriage. 
• Both parties to a marriage must attain the age of majority. However, in the case of a bridegroom, the minimum age is twenty-one years. This is provided under Section 5(iii) of the Act. 
• According to Section 5(iv) of the Act, parties to the marriage must not fall within the purview of prohibited relationships, unless the parties belong to a particular community or caste where such practices are recognised as customs. 

Section 3(g) specifies the relationships that are sapindas and fall under prohibited relationships. Persons under prohibited relationship are as follows-

1. If one person is the lineal descendant of the other,
2. If one person is the husband or wife of the lineal descendant or ascendant of the other.
3. If one person is the wife of the other person’s brother, father or mother’s brother or grandfather’s or grandmother’s brother. 
4. If one person is the brother or sister, uncle or niece, aunt or nephew of the other person. It further states that one person is sapinda of another if two persons are children of a brother and sister, or two brothers or two sisters. 

• Section 5(v) of the Act states that two persons who are sapindas of each other, cannot enter into a marriage. However, such marriage is valid if it is permitted and practised as a custom that governs them.  

The validity of marriage in the case of live-in relationships is now judicially substantiated. However, the continuous cohabitation and reputation as a couple need to be established. This was also held by the Madras High Court in the case of Manikyam vs. Atchamma (1953) 1 Mad LJ 34. In another case of Kanchan Malhotra vs. Yashwir Singh (1986), the Madhya Pradesh High Court held that the presumption of a valid Hindu marriage is not solely based on cohabitation but should also involve ‘habit’ and ‘repute’, as provided under Section 50 of the Indian Evidence Act, 1872 and Section 44 of The Bharatiya Sakshya Adhiniyam, 2023. Such marriage may be proven by the conduct of individuals, who, as family members, friends, or relatives, have specific knowledge of the relationship. 

Void and voidable marriage 

A void marriage is so, that was never solemnised as a valid marriage in the first place, ie., void ab initio. Section 11 of this Act lays down a provision for a void marriage. This section is prospective in nature and is applicable only after the commencement of this Act. A marriage may be void if either of the parties to a marriage violates Section 5 (i), (iv), (v). 

Therefore, a marriage is spontaneously void if solemnised upon the existence of a prior spouse and parties to the marriage fall under the prohibited degree of relationship or are sapindas of each other. 

A marriage that may be declared void by decree of a court, if either party to a marriage seeks such a decree, is considered a voidable marriage. Section 12 of the Act provides grounds, exceptions, and provisions on this aspect. This provision is retrospective in nature and applicable in marriage before the commencement of this Act. The grounds provided regarding voidable marriages are as follows.-

• A marriage may be annulled by either of the parties to a marriage if the marriage is not consummated owing to the impotence of the other party. This is mentioned under Section 12(1)(a). 
• Either party to a marriage may approach the court to annul their marriage, in case there has been a contravention of Section 5(ii) by the other party. This states that if a party to a marriage is psychologically challenged and incapable of giving valid consent, his spouse has the option to annul the marriage. This is provided under Section 12(1)(b).
• Where the consent of the petitioner or his/her guardian is obtained by fraud, the marriage is voidable and may be annulled at the option of the petitioner, as mentioned under Section 12(1)(c). 
• In a marriage, if the wife was already impregnated by someone else other than her husband, such marriage may be annulled at the option of the husband. This is provided under Section 12(1)(d). However, there is proviso in regard to this, mentioned under Section 12(2)(b), that the husband must be unaware of his wife’s pregnancy, the proceeding in the light of this context must begin within a year from the commencement of this Act (if such marriage took place before the commencement of this Act), or within a year from the date of marriage (if such marriage took place after the commencement of the Act) and, marital intercourse took place after the discovery of pregnancy by the husband. 

Registration of marriage

Registration of marriages is done via Section 8 of this Act. According to this Act, the state government has the authority to create rules that facilitate the recording of marriages in a Hindu marriage register. Such register shall be for this specific purpose and the recordings must be made according to the rules and conditions. Further, the state government may mandate the recording of marriages in specific parts, if deemed necessary and beneficial for that area. However, in general, an omission to make an entry of such a marriage would never validate the marriage. 

Divorce

The word ‘divorce’ has emerged from the Latin word ‘divortium’, which means ‘diverging paths’. It denotes the separation of two spouses in a sacramental relationship. Since the inception of the 1955 Act, there have been two amendments; the Hindu Marriage (Amendment) Act, 1964, and the Marriage Laws (Amendment) Act, 1976. The recent amendment Act liberalised the ambit of the divorce laws by inserting a new ground for divorce by mutual consent. Section 13 of the act provides for nine grounds for divorce. Any party to the marriage may seek the court for a decree of dissolution of marriage under the grounds provided in this section. The grounds may be majorly classified into three categories- Fault-theory, breakdown theory, and grounds provided for the wife.

Sexual intercourse outside the marriage

This ground is mentioned under Section 13(1)(i), which provides for ‘adultery’. The word ‘adultery’ is nowhere defined in the statute. Thus, it may be denoted as ‘sexual intercourse with any person other than his or her spouse’. The Madhya Pradesh High Court in the case of Gitabai vs. Fattoo And Anr. (1966) interpreted ‘adultery’ as “an act of consensual sexual intercourse between a married person and another person of the opposite sex who is not his or her spouse during the subsistence of former marriage.” 

In a landmark judgement of Joseph Shine vs. Union of India (2018), the Supreme Court decriminalised the act of adultery and dictated that while the criminal ground of adultery is abolished, consequences of civil nature still pertain to it. A wife may seek a decree of divorce from the court on the ground of an act of consensual sexual intercourse by her husband with another woman, who is unmarried. 

Cruelty 

Any party to a marriage may seek for a decree of divorce from the court on the ground of cruelty upon him/her, by the other party, which is mentioned under Section 13(1)(ia) of the Act. Cruelly may be both physical and mental. However, in a case of mental cruelty, there must be substantial evidence of prolonged circumstances and incidents. Cruelty has to be distinguished from the ordinary wear and tear of one’s life. This ground may include, apprehension of inflicting harm, apprehension of killing, physical abuse, physical or mental torture, torturing by captivating, and many more, depending upon the facts and circumstances of each case. 

The Supreme Court of India in the case of V. Bhagat vs. D. Bhagat (1994) emphasised on the aspect of mental cruelty and held that mental cruelty must be of such a severity that would make the parties unbearable to each other and living together. He also stated that what may constitute cruelty in one case, may not be so in another. 

Desertion by spouse

Any party to a marriage, if deserted by his or her spouse for a prolonged period of two years or more, may appeal from the court to grant him or her divorce on this ground. This ground is provided under Section 13(1)(ib).

Conversion of religion

Conversion of faith by one party in a marriage does not vitiate and dissolve the marriage automatically, the other party has to obtain a decree of divorce under this ground. However, it is at the option of the party to dissolve the marriage if one remains a Hindu. This is provided under Section 13(1)(ii).

Unsoundness of mind

A party may seek a decree of divorce from the court if their spouse suffers from incurable mental illness or a mental disorder that makes cohabitation impossible. Such mental disorders also include schizophrenia. This provision also states that in case of psychopathic disorder of one party, the other party may file a petition obtaining a decree of divorce. The psychopathic disorder would refer to abnormal and excessive aggression. This is mentioned under Section 13(1)(iii) of this Act. 

Venereal disease 

Any party to a marriage may appeal to the court to obtain a decree of divorce on the grounds of his or her spouse suffering from venereal disease. Such venereal disease must be communal and incurable. Venereal diseases like STDs and AIDs are life-threatening. Hence, the other party may opt to withdraw himself or herself from the marriage and have the liberty to live healthy and free of disease. This is mentioned under Section 13(1)(v).

Renunciation of the world

A spouse may seek a divorce from the court if their partner has renounced the world in order to join the religious realm. This ground is mentioned under Section 13(i)(vi) of the Act. 

Presumption of death

A person is presumed to be dead if they had not been found for at least seven years. He shall be presumed dead when he has not been heard of or seen around by the people who would naturally see him. A spouse may remarry based on the assumption of death and may seek divorce from the court. This ground is mentioned under Section 13(1)(vii) of this Act.

Grounds for divorce a wife can avail

Bigamy

A wife is entitled to seek a divorce from her husband who has committed bigamy, as outlined in Section 13(2)(i) of the Act. However, the provision prescribes conditions to be fulfilled, they are- i) the marriage in question must occur after the Act was enforced, and ii) the husband involved must already have a living spouse while solemnising the second marriage. The Act also provides for a punishment section, which is mentioned under Section 17 of this Act. 

Offence of rape, sodomy, and bestiality by the husband

If the husband is found guilty of committing offences of rape, sodomy, or bestiality, the wife has the right to seek divorce under Section 13(2)(ii) of the Act. The offence of rape is defined under Section 375 of the Indian Penal Code, 1860, and under Section 63 of The Bharatiya Nyaya Sanhita, 2023. Whereas, the offence of sodomy and bestiality is mentioned under Section 377 of the Indian Penal Code, 1860.

Failure to resume cohabitation subsequent to the issuance of a maintenance decree

The Amendment Act of 1976 inserted yet another significant ground for women to seek divorce. Section 13(2)(iii) of the Act provides that, if a decree or order of maintenance was issued against the husband under Section 18 of the Hindu Marriage Act, 1955, or Section 125 of the Code of Criminal Procedure, 1973 (now under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023), requiring him to provide maintenance to the wife, and meanwhile, the couple has not resumed cohabitation for a year or more subsequent to the decree or order, the wife is entitled to file for divorce.

Repudiation of Marriage

A wife has the right to seek the court for a decree of divorce under the ground of the right of repudiation of marriage upon attaining the age of eighteen years. However, she has to execute this right before attaining the age of majority. 

Divorce by mutual consent 

Parties to a marriage may file a petition together before the court for obtaining a decree of divorce, on mutual consent. However, both parties must have been staying separately for more than a year and have mutually agreed to dissolve their marriage. 

Hindu Succession Act, 1956

Introduction

The succession and inheritance of property in India are governed by the Act of 1956. The Hindu Succession Act, 1956 comprises a testamentary succession of properties. Regarding the Hindu Succession Act of 1956, a pivotal amendment was made to the Hindu Women’s Right to Property Act, 1937. This development significantly solidified female property rights within a Hindu Undivided Family (HUF). The amended 1956 Act included the widow, mother, and daughter in the class 1 heirs. Consequently, in the event of a partition within a HUF, the widow, daughter, and mother would be first in line to inherit property.

Applications of the Act

Section 2 of the Act enumerates the applicability of this statute. It applies to persons who is Hindu by religion and belong to Virashaiva, a Lingayat, or a believer of the Brahmo, Prarthana, or Arya Samaj. This Act applies to persons who are Sikhs, Jains, and Buddhists. The Act further asserts that the provisions under this Statute may apply to people who are not Christians, Muslims, Jews, and Parsis. However, it must be proven that such people would be governed by Hindu law and customs, in the absence of this Act. 

The interpretation of a person following Hinduism under this Act is provided under the explanation part of Section 2(1) of the Act, which is the same as provided under the Hindu Marriage Act. 

This Act lays down an exception for the Schedule Tribes within the meaning of Article 366 of the Indian Constitution, stating that the statute is inapplicable to the persons of the tribe.

Important component of the Hindu Succession Act, 1956

Male intestate succession

Mainly the rule governing the intestate succession of Hindu males is mentioned in Section 8 to Section 13 of the Hindu Succession Act, 1956. This set of provisions prescribes the devolution of property in cases where a Hindu male dies without making a will. 

According to Section 8 of the Act, the properties of a Hindu male shall devolve upon his heirs of Class I, and in its absence heirs of Class II. Furtherance to the absence of heirs of class II, the property shall be devolved upon the agnates of the deceased, and in the absence of agnates, it will ultimately flow to the cognates of the deceased.

Section 10 of the Act elaborates the distribution of the property of a male among heirs of class I, according to which the intestate property will pass on to the widow of the deceased, and then to the surviving son, daughter, and mother of the deceased. The provision further articulates in cases of pre-deceased sons and pre-deceased daughters, and the devolution of the property to their heirs. Whereas, Section 11 of the Act provides for apportionment of properties among heirs of class II. 

Section 12 of the Act asserts the order of succession among agnates and cognates, which is determined by a specific rule of preference. An heir with fewer degrees of ascent will be preferred first. In case, the number of degrees of ascent is the same for two or more heirs, heirs with fewer degrees of descent shall be preferred. Whereas, the computation of degrees of the heirs is determined under Section 13 of the Act, where such degrees are computed inclusive of the intestate. 

Female Hindu’s property

Section 14 of the Hindu Succession Act states that all the properties including the movable and the immovable property which belong to a Hindu who is female are held by her as only the owner of the properties, not as a limited owner of the properties. These properties include being gifted by someone, purchased, or while getting married. Thus, a Hindu woman has the supreme power to deal with her properties and she can dispose of her properties by her will, gifting someone, selling someone, and via other modes of transfer. 

However, according to Section 14(2), certain restrictions are applied on the property of a woman. If a property owned by a woman is acquired through gift, will, any other legal instrument, a decree of a court, or an award, that involves conditions retraining to alienate, such conditions shall be valid. 

Female intestate succession

The provisions governing the intestate succession of Hindu females are mentioned in Section 15 and Section 16 of the Hindu Succession Act, 1956. A Hindu female’s intestate is governed by Section 15 of this Act, that is when she dies without leaving a will. Before determining the shares of a Hindu female’s legal heirs, it’s crucial to understand the origin of the property to apply the correct succession provisions. If a Hindu female inherits the property and has surviving children or grandchildren, Section 15(1) of the Act shall apply. However, if there are no surviving children or grandchildren, Section 15(2) applies. For self-acquired property, property obtained through a will, gift, stridhan, or other mode, Section 15(1) is applicable.

Hindu Minority and Guardianship Act, 1956

Introduction

The Hindu Minority and Guardianship Act, 1956 consolidates the legal provisions concerning minority and guardianship, emphasising on children’s welfare. This Act was enacted on August 25, 1956, and was designed to standardise laws related to minorities and guardianship within the Hindu community, prioritising the prosperity of minors. This Act comprises 13 Sections that deal with not only the principles of minority and guardianship but also highlight the powers and types and, the qualifications required for a person to serve as a child’s guardian.

Application of the Act 

Section 3 of the Act states the applicability of the statute. This section is applicable to the Hindus, who are interpreted as persons who follow the religion of Hinduism, or a believer of Virashaiva, Lingayat, Brahmo, Prarthana, or Arya Samaj. The Act further makes Buddhists, Sikhs, and Jains eligible for the applicability of the Act and is considered Hindu, as stated under Section 3(1)(b). The Act also specifies to whom it does not apply, including Muslims, Christians, Parsis, and Jews by religion, which is mentioned under Section 3 (1)(c). 

This Act lays down an exception for the Schedule Tribes within the meaning of Article 366 of the Indian Constitution, stating that the statute is inapplicable to the persons of the tribe.

Natural guardians 

Natural guardians of a Hindu minor are specified under Section 6 of the Act, where natural guardians of an unmarried girl, a boy, an illegitimate unmarried girl, or a boy are specified. It also mentions that a husband shall be a guardian of a married woman, under Section 6(c) of the act. 

An adoptive father and an adoptive mother of an adopted minor child shall be his or her natural guardian, according to Section 7 of the Act.  

Powers of the natural guardians are mentioned under Section 8, where it is specified that, even after being authorised to maintain minor children, the natural guardians are bestowed with certain rights, powers, and restrictions. A natural guardian acquires all the power to do acts that benefit the minor child, for his as well as his estate’s protection. The Act under Section 8(2) asserts that a natural guardian may not dispose of a minor’s property through any mode, without seeking prior permission from the court, and also restricts from leasing any property of minors under Section 8(2)(b).

The Guardians and Wards Act, 1890 shall apply in case of any prior permission by a natural guardian or an appeal from such persons. Further, Section 10 of the Act that a minor is incompetent to act as a guardian of a minor. 

This Act also lays down the testamentary rights of the natural guardians under Section 9.  The Section specifies that in case of the death of a father or mother acting as natural guardians, they are authorised to create a will, appointing a guardian in respect of the minor and his properties. It further specifies under Section 9(6), that the guardianship appointed shall be ceased on the account of marriage of the minor girl. 

Hindu Adoptions and Maintenance Act, 1956

The Hindu Adoption and Maintenance Act, 1956, is one of the significant sets of legislation that focuses on the intricacies of adoption and maintenance within the Hindu community. This Act extends its applicability to Hindus, including those who follow the Brahmo, Prathana, or Arya Samaj traditions, as well as Buddhists, Sikhs, and Jains. It also encompasses individuals not governed by the laws of other major religions such as Islam, Christianity, Zoroastrianism, and Judaism. The Act outlines criteria for adoption, stipulating that the child must be under the age of 15, unmarried, and not previously adopted. Other various criteria, eligibility, and qualifications are mentioned in brief below.-

Applications of this Act

According to Section 2 of the Act, the provisions of this statute may apply to the people who follow Hinduism, or a person who is a believer of Virashaiva, a Lingayat, Brahmo, Prarthana, or Arya Samaj. This Act also extends to a person who is Buddhist, Jaina, or Sikh by religion, and not to a person who is a Muslim, Christian, Parsi, or Jew by religion. 

Section 2(2) of this Act lays down an exception for the Schedule Tribes within the meaning of Article 366 of the Indian Constitution, stating that the statute is inapplicable to the persons of the tribe. 

Who can be adopted?

Section 10 of the Act lays down the criteria of a person who is eligible to be adopted. It asserts that a person is eligible to be adopted under the provisions of this statute only if the person is Hindu by religion, has not been adopted earlier, is not married (unless a custom or usage permits to be adopted if married), has not attained the age of fifteen years (unless a custom or usage permits to be adopted at the attainment of fifteen years). 

Valid Adoption

There are certain prerequisites for an adoption to be valid, which are laid down under Section 6 of the Act. This includes the capacity and the right of the person to adopt, the person to be adopted must have the capacity to be adopted, and the person giving for adoption must be the guardian or parents of the person given for adoption. 

Certain other conditions of a valid adoption

The act has laid down certain essential conditions to be fulfilled in order for an adoption to be valid. Section 11 outlines such prerequisites, which are as follows.-

• In the case of the adoption of a son, the person adopting must not have an existing Hindu son, grandson, or great-grandson, at the time of adoption, according to Section 11(i). 
• In the case of the adoption of a daughter, the person adopting must not have an existing Hindu daughter, great-granddaughter, or great-granddaughter, according to Section 11(ii). 
• Section 11(iii) states that if a male person is adopting a female child, he must be twenty one years older than the adopted son.
• Section 11(iv) lays down that if a female person is adopting a male child, she must be twenty one years older than the adopted girl.    
• A person cannot be adopted simultaneously by two or more persons, as mentioned under Section 11(v). 
• Proper and formal procedures must be followed while giving a child adoption, by his or her parents or guardian, and the person being adopted must be received by his or her adoptive parents. This is mentioned under Section 11(vi).

Who can give a child up for adoption?

Section 9(1) lays down that only a mother or a father or guardian has the capacity to give a child for adoption. However, it is also mentioned that, both the mother and father shall have equal rights in giving their child for adoption, given that, they must be competent to do so. 

The person adopting a child must meet all the requirements of a valid adoption, as provided under Section 6, Section 7, and Section 8.

Existence of Hindu law in the Indian Constitution

The inclusion of Hindu religion in the Indian Constitution is interlinked with key principles of equality and freedom enshrined in its articles. Article 15 of the Indian Constitution, which falls within the ambit of the Right to Equality, talks about the prohibition of discrimination on the grounds of religion, race, caste, sex, or place of birth. Hindu law is closely related to this because of the discrimination against the religion, giving liberty to Hinduism as well as other religions. Similarly, Article 25 says about the freedom of conscience and free profession, practice, and propagation of religion which comes under the right to freedom of religion. Article 26 states the freedom to manage religious affairs. Together, these constitutional provisions affirm the presence, recognition, and protection of Hindu religion within the broader framework of religious equality and freedom in India.

The Constitution of India, in its preamble, has delineated the concept of secularism and has mandated the people of India to adhere to the principle. The forty-second Constitutional Amendment Act, 1976 inserted the word ‘secularism’, which is regarded as one of the basic features of the Indian Constitution. This was established by the virtue of the verdict in the case of Keshavnanda Bharati vs. State of Kerala (1973). This landmark judgement has substantiated the usage, interpretation, and the practice of a religion, allowing an individual to profess their choice of religion and its practices. 

The Indian Constitution enlarges the scope of the practices of traditions and customs of Hindu law while allowing its customary laws to be prevailed in most of the parts of India. The customary legal system of Hindu law envisages practices that may be territorial-centric or caste-centric. The Indian Constitution permits such practices with its emancipation of the principle of secularism as one of its basic features. 

Role of Judiciary

The Indian Judiciary has played a pivotal role in shaping the structure of Indian customary laws, specifically Hindu law. Through its landmark judgements, the Indian Judiciary has strengthened the fundamental rights and duties of the individuals. It further has interpreted various constitutional aspects, addressing various legal issues pertaining to socio-legal matters. Following are the cases that drew attention and set firm legal precedents, affecting various dimensions of Hindu law. 

Sarla Mudgal vs. Union of India (1995)

Facts

In this case, Sarla Mudgal, the petitioner, filed a petition claiming that her husband solemnised a second marriage. She claimed that her husband converted to Islam, and took advantage of the practice of polygamy. She contented that such marriage is void ab initio and that her husband committed the offence of bigamy. This case highlighted the need to address the misusing of religious conversion, in order to take advantage of its customary practices.

Judgement

The Supreme Court, quashing the appeal of the husband, held the second marriage to be illegal. It further stressed that a marriage solemnised under the Hindu law can only be dissolved by the decree of the court. Furthermore, the court upheld the decree of maintenance prayed by the wife for herself and their daughter.  

Joseph Shine vs. Union Of India (2018)

Facts

In this case, a petition was filed under Article 32 of the Indian Constitution, that challenged the constitutionality of Section 497 of the Indian Penal Code (The Bharatiya Nyay Sanhita, 2023 does not include adultery as an offence as it was decriminalised by the virtue of this case). The petitioner contended that the provision is discriminatory in nature as it did not provide a woman the right to prosecute the woman with whom her husband committed adultery. The petitioner further contended that this provision is an infringement of gender equality and promotes stereotypes, undermining women’s dignity. 

Judgement

The Supreme Court of India, with its majority, decriminalised ‘adultery’, which fell under Section 497 of the Indian Penal Code. The Bench had five judges, chaired by Justice Deepak Misra, who focused on the significance of constitutional principles concerning gender equality, the dignity of a woman in a marital relationship, and her dignity. The court held that the provision was unconstitutional, specifically the Articles 14, 15, and 21, based on gender-bias. 

The court further held that the provision was illogical and feudal in nature and highlighted that it penalised persons outside of marriage and did not provide for an opportunity for the wife to file a suit against her husband.

Ramesh Chandra Rampratapji Daga vs. Rameshwari Ramesh Chandra Daga (2005)

Facts

In this case, the wife, while living in her second marriage, faced domestic violence from her second husband. Subsequently, the wife left her in-laws home with her daughter and started residing separately. However, the first marriage was not legally dissolved, but was done as per one of the customary rules followed by the Maheshwari people group, known as ‘chor chithi’. 

She prayed for judicial separation and claimed maintenance for herself and her daughter. Her second husband, in order to escape from the claims, contended that the first marriage of his wife was not properly dissolved, hence making their existing marriage invalid under the Hindu law.

Judgement

The Supreme Court in this case observed that a Hindu marriage is dissolved only by the virtue of provisions prescribed under the Hindu Marriage Act, 1955. It further held that the Section 5 (i) of the Hindu Marriage Act was violated and customs like ‘chor chitthi’ were not recognized in the eyes of the law. 

Regarding the appeal prayed by the wife for herself and her daughter, the court granted a permanent maintenance with regard to the Section 25 of the Hindu Marriage Act, 1955. It interpreted the provision broadly which included granting of maintenance, including decrees of nullity. The court emphasised on the facts and circumstances of the case and perceived that the wife must get the claimed maintenance for herself and her daughter, even though the first marriage never legally dissolved, nullifying her second marriage.

Sushil Kumari Dang vs. Prem Kumar Dang (1976)

Facts

In this case, the husband filed a petition for restitution of conjugal rights. He claimed that his wife abandoned him and his society without any reasonable cause. Further, the wife contended that she was physically and mentally abused and that she was a victim of cruelty where her husband attacked her physically after coming home drunk. 

The trial court of Delhi District supported the claims of the husband and ordered a decree of restitution of conjugal rights. Subsequently, the husband prayed for judicial separation alleging an illicit relationship of his wife with another man, which was further appealed by his wife.

Judgement

The Delhi High Court did not uphold the Trial Court’s decision and overturned it. The court observed that the husband lacked sincere intention to reconcile with his wife, given that the husband immediately prayed for a judicial decree after obtaining a decree for restitution of conjugal rights. The court further observed that it was just to harass his wife, and that the husband filed both the suits simultaneously, which shall be bad in law if allowed. 

Lata Singh vs. State of Uttar Pradesh (2006)

Facts

In this case, a girl named Lata resided with her brother, from where she ran away in order to marry Bhrama Nand Gupta, who did not belong to the same caste as hers. On not being found for a long time, her brother registered a missing complaint, which led to the discovery of the boy’s parents. On the discovery, the brother started to threaten and attack the family of his sister’s husband, showing contempt for them being married even after belonging to different castes.

Judgement

The Supreme Court, highlighting the Article 21, stated that a person has the freedom to marry outside of their caste. It further opined that if their respective parents oppose such marriage, they may sever social contact with their children rather than threatening, coercing, or committing honour killing. The court further directed that the encouraged atrocities towards inter-caste couples must stop and mandated the police to keep a check. 

Seema vs. Ashwani Kumar (2006)

Facts

The petitioner, Seema filed a case against her husband Ashwani Kumar regarding an ongoing dispute between them. The case got into appeal and was elevated to the Supreme Court, which observed a broader issue concerning unregistered marriages. The Supreme Court issued notices to many states in order to obtain their opinions on the compulsory registration of marriage. 

Judgement

The Supreme Court mandated the registration of marriages in order to protect social and civil rights of individuals. It also observed that such records might be a helping hand in times of disputes in marriages and issues related to it. The court further focused on mandating the registration of marriages within three months and the appointing officers. It also mandated the enforcement of proper authorities and the implementation of penalties for non-compliance.

Smt. Prafulla Bala Mukherjee vs. Satish Chandra Mukherjee And Ors. (1997)

Facts

In this case, the plaintiff-appellant filed a suit seeking a declaration, claiming to establish ownership of a two-storeyed house. They also prayed for a permanent injunction against the defendants. The house belongs to Gopal Mukherjee, who is the brother of the plaintiff and father of the defendants. The plaintiff however, claimed ownership of that house by asserting that she and her husband adopted Ganesh Chandra Mukherjee, who was one of the sons of Gopal Mukherjee. After the death of Ganesh Chandra Mukherjee, the plaintiff claimed the ownership of the two-storeyed house, which the defendants denied, contending that the adoption was not valid. 

Judgement

The Calcutta High Court held the adoption to be invalid and dismissed all the claims of the plaintiff. The documentary and oral evidence show that Ganesh Chandra Mukherjee has continued to consider his biological parents to be his parents and maintained ties with them, therefore refuting the claim of the plaintiff to be his adoptive mother. Furthermore, the court observed that the required ceremonies concerning adoption were not fulfilled, and no formalities were executed.

N G Dastane vs. S Dastane (1975)

Facts

In this case, the husband filed a suit against his wife alleging cruelty to him. In her defence, the respondent-wife contended that such claims were fabricated and the marriage deteriorated due to the actions of her husband and his sheer neglect. The husband allegedly compelled the wife to consult a psychiatrist but failed due to her denial. The wife further stated that there had been no action of cruelty from her side and that the claims and contentions of her husband were just to harass her and dissolve the marriage. 

Judgement

The Supreme Court in this case observed that the Trial Court failed to assess through the nuances of the allegation of cruelty and neglected the factual interpretation asserted from the evidence provided. The Supreme Court, after further consideration of the evidence, outlined that there has been conduct on the part of the respondent that amounts to cruelty. However, it was concluded by the court that it was not possible to substantiate the claims of cruelty and desertion by the appellant as the earlier actions of the respondent were condoned by the appellant.

Jijabai vs. Pathankhan (1970) 

Facts

This case concerns the concept of natural guardianship and who is a natural guardian. This issue came to the surface when a minor, after attaining the age of majority, filed a suit in order to terminate the lease of the tenant, who is also the respondent in this case. The piece of land was gifted to the appellant by her father. During the tenancy, the appellant was a minor and the lease was maintained by her mother, due to the absence of the appellant’s father. The validity of the lease was questioned, as it was managed by the appellant’s mother, rather than her father. It was contended that, according to the Hindu Minority and Guardianship Act, a father is the natural guardian of a child and not the mother. 

Judgement

The Supreme Court, in this case, upheld the validity of the lease which was executed by the mother of the appellant, while she was a minor. While the validity of the lease was in dispute, given the execution made by the mother, who is not the natural guardian according to the Hindu Minority and Guardianship Act, the court affirmed the validity and observed that in a situation where the father is inactive, neglectful or absence in the affairs of his minor child, the mother is the natural guardian of the child. 

The need for such reforms

Hindu law, as has been in existence since the 1950s lacked certain rational ideologies and social progress. The reforms in Hindu law were crucial to addressing certain inconsistencies and inadequacies hidden in the prolonged provisions of Hindu customary law, which were later exposed through landmark judicial precedents. Through such landmark decisions, various contemporary issues were addressed, such as constraint on a second marriage while the former spouse is still in existence, decriminalising the practise of adultery which veiled the dignity of women, and respecting their rights and choices. 

Many laws under Hindu law have exceeded their timeframe, further creating chaos in the modern times. Thus, to embark on a fresh and an equitable approach, it is indispensable to consider these changes, either through legislation or through judicial precedents. The judiciary addresses issues concerning social disruptions and dilemmas, relating to marriages, adoptions, guardianship, and succession. The judiciary also has emancipated the Indian legal system by interpreting Hindu customary laws, with its sheer knowledge and commitment to perceive an equitable and justiciable approach.    

Conclusion 

Hindu law has many colours to it and is wide in nature. The extensive sphere of Hindu law comprises several acts, out of which few are discussed in the article in brief. With the inception of statutes governing personal law like Hindu law, the functioning of personal laws within the walls of traditional courts has been easier. The codification of a personal law is indeed achieving a milestone. It is not just creating and enacting laws but, incorporating religious sentiments, rituals, customs, and many more. 

Thus, an introduction to Hindu law would not be less than a book as it comprises numerous statutes dealing with personal laws such as the Hindu Marriage Act, 1955, Hindu Succession Act, 1956, Hindu Minority and Guardianship Act, 1956, Hindu Adoption and Maintenance Act, 1956, The Transfer of Property, 1882, The Special Marriage Act, 1954, The Hindu Women’s Rights to Property Act, 1937 and many more. This article makes an effort to provide an idea of the enormously diversified Hindu law. 

Frequently Asked Questions (FAQs)

Is stridhan of a woman protected under any statutory provision?

A woman’s entitlement to her stridhan is safeguarded under Section 14 of the Hindu Succession Act, read with Section 27 of the Hindu Marriage Act, 1955. It mentions that even if the property under stridhan is captivated by her husband or in-laws, they are merely trustees of such property and must return it to the owner of it, i.e., the wife. Further, Section 18(e) of The Protection of Women from  Domestic Violence Act, 2005 recognises streedhan as one of the rights of a wife and states that a woman has the right to recover her assets, including jewellery, clothing, streedhan and other essential items, and the statute also addresses ‘economic abuse’ to protect her financial interests.

Can a Muslim person marry a Hindu person?

Yes, a Hindu and Muslim person can marry each other, under The Special Marriage Act, 1954. A marriage between them would be voidable under Hindu personal law and irregular (fasid) under Muslim personal law. 

Does conversion of faith repudiate a marriage?

No, a marriage is not spontaneously dissolved upon the conversion of faith by either party to a marriage. However, on such conversion, the other party may file a petition before the court for divorce on this ground. This is one of the grounds mentioned under Section 13, to be specific, Section 13(1)(ii).

Can a single woman adopt a child?

Yes, an unmarried woman can adopt a child, whether a boy or a girl, provided that she has to be competent and comply with the provisions under Section 6 and Section 8 of the Hindu Adoption and Maintenance Act, 1956. However, adoptions are also regulated by the Central Adoption Resource Authority, which is a statutory body. The Regulation No. 5 of this enactment prescribes eligibility criteria for adoption. It makes an unmarried female eligible to adopt a girl or a boy, whereas, enables an unmarried male to adopt only a boy child. 

References

• Hindu Law and The Constitution, A.M Bhattacharjee, 2 ed. 1994.
• Modern Hindu Law by Paras Diwan. 
• https://blog.ipleaders.in/hindu-law-custom/#:~:text=Customs%20are%20mainly%20of%20four,Customs%2C%20Class%20or%20Caste%20Custom. 
• https://blog.ipleaders.in/can-marriage-maternal-uncle-niece-valid-marriage-india/. 
• https://blog.ipleaders.in/hindu-law-notes/#Origin_of_Hindu_Law. 
• https://blog.ipleaders.in/overview-of-the-hindu-minority-and-guardianship-act-1956/#Introduction. 
• https://blog.ipleaders.in/the-hindu-succession-act-1956/. 
• https://www.britannica.com/topic/Dharma-shastra.