This article is written by Sangeet Kumar Khamari of KIIT School of Law, Odisha. This article tells about the origin, nature and scope of Hindu law. It also discusses how can a Hindu be determined.
Table of Contents
This world has a population of 8 billion, out of which 1.38 billion people live in India presently. India is a secular State where many religions like Hindu, Muslim, Sikh, Christian and Parsi live together. In this country two types of laws are there:
(i) General law
(ii) Personal law
General law includes the IPC, Constitutional law, Indian Contract Act and many more. And the Personal law includes Hindu law, Muslim law and many more. We will discuss the Hindu Law in this article.
Origin of Hindu Law
In Dharmasastra there is no word such as ‘Hindu’. It is a foreign origin. The word ‘Hindu’ came into existence through Greeks who used to call the residence of the Indus Valley nation as ‘Indoi’. Later it becomes a ‘Hindu’. This nation came to be known as ‘Hindustan’ and its people as Hindu. In history, the word ‘Hindu’ not only indicates a religion, but it also indicates a nation basically. The Hindu law has been modified through centuries and been also existing since last 5000 years and has also continued to govern the social and moral figure of Hindu life by following the different elements of Hindu cultural life.
Concept of Dharma
We know that the word Dharma is related to Hindu law. Let me explain to you, the word “Dharma” according to Hindu Mythology means “duty”. Looking at the contexts and the religious references Dharma has different meanings just like, the Buddhists believe that the word Dharma means only a universal law which is very much essential and the Jains and the Sikhs believe that it is only a religious path for the victory of the truth.
According to the Hindu Jurisprudence, Dharma means the duties in many ways. Just like the sociological duties, legal duties or spiritual duties. Through this context, we can say that Dharma can be referred to as the concept of justice.
Sources of Dharma
As referred to the “Bhagwat Geeta”, God creates a life using the principles of Dharma. They are patience, forgiveness, self-control, honesty, sanctity (cleanliness in the mind, body and soul), control of senses, reasons, knowledge, truthfulness and absence of anger. Accordingly, The salvation which means “Moksha” is the eternal Dharma for humans according to Hinduism.
Hindu epics like the Ramayana and Mahabharata also refers to Dharma. They say that executing one’s Dharma is the right aim of every individual. And also at that time, the king was known as Dharmaraj because of the main motive of the king was to follow the path of Dharma.
Nature of Dharma
Despite the other schools of Jurisprudence, the Hindu Jurisprudence takes more care over the duties more than the rights. The nature of these Dharma changes from person to person. There are many duties of many people in this world like earlier, the king’s duty was to uphold the religious law and the other hand a farmer’s duty is to produce food, the doctor has to cure the people, the lawyers have to fight for justice. Being a highly religious concept in nature, Dharma is multi-faceted. It contains many laws and customs in a large range of subjects which is essential and needed to be followed by each and every person. For example, Manusmriti deals with religion, administration, economics, civil and criminal law, marriage, succession, etc. These we study mainly in our law books.
Who are Hindus?
A person can be called as a Hindu, who:
- Is a Hindu by religion in any form.
- Is a Buddhist, Jaina or Sikh by religion.
- Is born from Hindu parents.
- Is not a Muslim, Parsi, Christian or Jews and are not governed under Hindu law.
- Lodge in India.
The Supreme Court of India in the landmark case of Shastri vs Muldas expressly defined the term ‘Hindu’. This case is related to the Swami Narayan temple in Ahmedabad. There are a group of people called the Satsangi who were managing the temple and they restricted non-Satsangi Harijans to enter the temple. They argued that Satsangi is a different religion and they are not bound by Hindu Law. The Supreme Court of India held that the Satsangi, Arya Samajis and Radhaswami, all these belong to the Hindu religion because they are originated under Hindu philosophy.
Hindu by Religion:
- If any person follows the religion by practising it or by claiming it can be called as a Hindu.
Conversion and Reconversion to Hinduism:
- Under the codified Hindu law, any person if converted to Hinduism, Buddhism, Jainism or Sikhism can be called as a Hindu.
- From the case of Perumal vs poonuswami, we can say that a person can be called a Hindu by conversion.
In this case, Perumal was the father of Poonuswami who got married to an Indian Christian. In the future due to certain differences, they were living separately. In the future, the mother of Poonuswami asked Perumal for the share of his properties. Perumal denied and said “marriage between a Hindu and a Christian is void”. The Supreme Court of India held that a real intention is sufficient evidence of conversion and no formal ceremony of purification is needed (Conversion of Hinduism). So it is not void and Poonuswami would get a share.
- For conversion, the person should have a bonafide intention and also shouldn’t have any reason to be converted.
- Reconversion basically happens, when a person is Hindu and gets converted to a non-Hindu religion and he will again become Hindu if he/she gets converted into any four religions of Hindu.
- If a person is born from a Hindu family, he/she is a Hindu.
- When one of the parents of a child is Hindu and he/she is brought up as a member of the Hindu family, he/she is a Hindu.
- If a child is born from a Hindu mother and a Muslim father and he/she is brought up as a Hindu then he/she can be considered as a Hindu. We can explain that a child’s religion is not necessarily that of a father.
- The codified Hindu Law lays down that a person who is not a Muslim, Parsi, Christian or Jews is governed by Hindu Law is a Hindu.
To whom Hindu Law does not apply?
- To an illegitimate child whose father is a Hindu and mother is Christian and the child is brought up as a Christian. Or also, the illegitimate child of a Hindu father and a Mohammedan mother, because these children are not Hindus either by birth or by religion.
- To the Hindus who are converted to Muslims, Christians, Parsi or Jews.
- To the Hindus who don’t follow the principles of Sastra.
Enactments through which Hindu Law is applied
Hindu Marriage Act, 1955
The Hindu Marriage Act, 1955 came into force to secure the rights of marriage for the wife and husband who are Hindu and they are bound under the religious bond of marriage under any ceremony. As there are many ways that a man and a woman can conduct this religious act, so this law does not define kinds of the ceremony to be carried out. After marriage, the registration process should be conducted properly and if any problem occurs between the parties and they want a divorce, they can carry out the divorce proceedings and also if they want to get remarried after divorce then the process for the same can be understood by this act.
This act is only applicable for any person who is Hindu, Jain, Sikh and Buddhists and not for particularly Muslims, Christians, Parsis and Jews who are being governed by some other law. This law is only applicable for the person who is a Hindu by birth or Hindu by religion. Section 2 of the Hindu Marriage Act, 1955 describes all these things.
Important components of the Hindu Marriage Act, 1955
Section 5 of the Hindu Marriage Act, 1955
This Act mentions some grounds that should be followed for the marriage, including:
- No party should have a spouse living before or at the time of marriage.
- None of the party should be suffering from any mental disorder or should be unfit for the marriage and procreation of children or no party should be subjected to recurrent attacks of insanity and also during the time of the consent for marriage no party should be unsound of mind.
- The bridegroom should be of age 21 and the bride of 18 for marriage.
- If the party is within a degree of prohibited relationship, it can be considered as void.
- For marrying the parties shouldn’t be sapindas of each other, unless any customs or usage allows for them to marry.
If all these grounds are followed then we can consider the marriage as a ‘valid marriage.’
If the above grounds aren’t fulfilled then the marriage can be defined as ‘void or voidable marriage‘.
Grounds of void marriage:
- No party should have a spouse living at the time of marriage. It is also known as bigamy.
- No party should be within a degree of prohibited relationship.
- The party should not be the sapindas of each other.
Grounds of Voidable marriage:
- If the marriage happens without the consent of the bride or the bridegroom or any force or fraud.
- If a party is suffering from any kind of mental disorders which makes him/her unfit for the procreation of children.
- If the bride is pregnant by another man other then the bridegroom.
- If any of the party is subjected to recurrent attacks of insanity.
- If any of the party is under aged such as the bridegroom is below 21 years and the bride is below 18 years.
- If one of the parties is unsound of mind during the time of consent for marriage.
Section 3 of the Hindu Marriage Act, 1955
This section withdraws the restricted degree of relationships as given in Smriti and replaced with a new restricted degree of relationships. For e.g. A person can’t marry the wife of his brother. But, this provision will not be applied in the case of divorce and widow women.
Section 8 of the Hindu Marriage Act, 1955
This Section states the provisions of registration of the marriage. Some provisions are:
- A marriage can’t be registered if a ceremony hasn’t been performed.
- A marriage can’t be registered if the two parties are not living together as husband and wife.
- Both the parties must submit an application to the marriage officer of the district for the registration within 30 days of the ceremony of the marriage.
- The Hindu Marriage Act has allowed the State Government to make the rules for the registration process particularly for the State only.
- Registration is the written proof of the marriage.
Though marriage is a religious ceremony, the Hindu Marriage Act, 1955 permits the parties to divorce on the basis of unhappiness, or if one of the party can prove that their relationship cannot go forward.
For divorce, one of the parties has to file after one year of registration, or in exceptional case if the party who is filing the divorce is suffering from mental insecurities because of the opposite party then the Court may allow the party to file before one year.
Grounds for divorce (Section 13)
A marriage can be dissolved by Court order in the following reasons:
- Adultery- If one of the parties has had sexual intercourse with another man or woman other than the party who filed the divorce.
- Cruelty- If one of the parties had physically or mentally tortured or abused the other.
- Desertion- If one of the parties has left the other for not less than two years.
- Conversion to another religion- If one of the party was Hindu but he/she has accepted another religion.
- Unsound mind- Since the marriage ceremony, if one of the party is found to be of unsound mind to such an extent that he/she thinks that married life is no more possible with the other party.
- Disease- If one of the parties is suffering from an incurable disease which is infectious.
- Presumption of death- If one of the parties hasn’t been seen alive by the other party for seven years or more.
Grounds on which a wife can file for divorce:
- If the husband has already been married and the wife of the husband is still alive.
- If the husband is found guilty of rape or cruelty.
- If the person is not able to maintain the general expenses and needs of the wife.
- If the wife got married forcefully under the age of 18.
Hindu Succession Act, 1956
It is one of the first laws relating to property and family separation. In today’s business world Hindu succession Act, 1956 is very important in commercial and corporate legislation because of the family separation and also the property separation between them. This Act governs the intestate succession law among the Hindu.
Applications of the Act
- This Act is applied to any person who is Hindu by religion, as well as who is a Buddhist, Jain, Parsi and Sikh by religion or the person who are not Muslim, Christian, Parsi and Jew by religion.
- This act can also be applied to a child whose both the parents are Hindu, Buddhists, Jainas or Sikhs by religion or to a child who is brought up in a Hindu family or any person who is reconverted to Hindu, Buddhist, Jains, and Sikhs.
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. The property of an intestate Hindu male get transferred to the following heirs which are mentioned below:
- Firstly, class I heirs.
- Secondly, if the class I heirs are not available then class II heirs are being used.
- Thirdly, if class II heirs also are not available then Agnates are used.
- Lastly, if there are no Agnates, cognates are used.
Female Hindu’s property
Section 14 of the Hindu Succession Act states that all the properties including the movable and the immovable property which belongs 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 got on marriage. Thus, a Hindu woman has a supreme power to deal with her properties and she can dispose off her properties by her will, gifting someone, selling someone, etc. Earlier this section was not into any action (the woman had no power to give or sell her property by will) but, now that is removed by the force of statutory provisions.
Female intestate succession
Mainly the rule governing the intestate succession of Hindu females is mentioned in section 15 and section 16 of the Hindu Succession Act, 1956. The property of an intestate Hindu female gets transferred on the following heirs which are mentioned below:
- Upon her son and daughter.
- Upon heirs of her husband.
- Upon her parents.
- Upon heirs of her father.
- Upon heirs of her mother.
Hindu Minority and Guardianship Act, 1956
This Act was proposed for the minor’s protection and to protect their property in 1956. This was mainly proposed for the Hindu minor children.
Important components of Hindu Minority and Guardianship Act, 1956
Application of the Act (Section 3)
This Act is applicable to the followings people:
- A person who is Hindu by religion.
- A person who is Buddhist, Jaina or Sikh by religion.
- Any person who is not a Muslim, Christian, Parsi and, Jew.
Natural guardians of a Hindu Minor (Section 7)
The natural guardian of the minor and the minor’s property are as follows:
- If the minor is a boy or an unmarried girl then his/her father would look after, or if they are below age 5 then they would stay under mother custody too.
- If the minor is an illegitimate boy or an illegitimate unmarried girl then his/her mother after then his/her father shall be his/her guardian.
- If the minor is a married girl then her husband will be her guardian.
- If the minor is an adopted then after adoption, his/her adoptive father and after then his/her adoptive mother would take care of them.
Some important powers of natural guardians (Section 8)
- The actions for the advantage of the minor can be acted by the natural guardians like the protection of the minor, education of the minor, etc. but the guardians can’t restrict the minor for personal motives.
- Without the permission of the Court, the guardian cannot:
- Mortgage or charge, sell, gift someone or exchange the immovable property of the minor.
- Give the property of the minor in lease more than five years or continuing more than one year after the date on which the minor will reach his majority position, for the immovable property.
- Any disposal of the minor’s property by the natural guardians is voidable at the case of the minor or any other person claiming for him.
- The court will not grant the natural guardians to do any act mentioned above, in case of necessity for the advantage of the minor.
A minor can’t be the guardian of a minor’s property (Section 10)
- A boy or a girl who is less than 18 can’t be the guardian of a minor’s property.
Testamentary guardians of a Hindu minor
- The person whose name is in the will so as to act as a guardian shall be the testamentary guardian.
- Generally, these guardians are appointed by the minor child’s mother who doesn’t have her husband.
Some important powers of testamentary guardians (Section 9)
- Any Hindu father who is a natural guardian of a minor legitimate child has an authority to select any person to be the guardian of the child and its property.
- If the mother selects someone for the testamentary guardian in her will then if the father made an appointment will be not carried out. The testamentary guardian selected by the mother would have the preference, but if the mother didn’t mention anyone in her will then the person selected by the father will be the testamentary guardian.
- If the father of the minor legitimate child failed to be the natural guardian then the mother of the child can appoint someone as the testamentary guardian to look upon the child and it’s property too.
- A Hindu mother who is entitled to be a natural guardian of the minor illegitimate child can appoint a testamentary guardian for care of him/her as well as his/her property.
Hindu Adoptions and Maintenance Act, 1956
The Hindu adoption and maintenance Act, 1956 came into power on 21 December 1956.
This Act mainly tells about the adoptions of a child.
Applications of this Act
This Act may apply:
- To a person who is a Hindu by religion and formed and developed by the Hindu law. This includes a Virashaiva, a lingayat or a follower of the Brahmo, Prathana or Arya Samaj.
- To any person who is Buddhist, Sikh or Jain by his/her religion.
- To any person who is not a Muslim, Christian, Parsi and Jews. And also those people who aren’t being governed by these religion’s law.
Who can be adopted?
Under the Hindu adoption and maintenance Act, 1956 a person can be adopted if:
- He/she is a Hindu.
- He/she has not been adopted.
- He/she is not married.
- He/she is below the age of 15.
Certain purposes for adoptions are:
- If someone doesn’t have a child he/she may adopt one.
- To protect themselves and provide care during their old ages.
- To establish the family name and lineage in the future.
- A child can be adopted by someone to secure their family property from falling into someone else’s hands.
- To perform rituals of the funeral after the death of a person in their family.
The essentials for making a valid adoption: (Section 6)
- The person who is adopting should have the capacity as well as the right to take adoption.
- The person who is giving adoption should have the right to give adoption.
- The person who will be adopted should be a Hindu as well as should be below age 15.
- If a male is adopting a child of same-sex then the father should be of at least 21 years older than the child who is being adopted.
- Similarly, if a female is adopting a child of same-sex then the mother should be of at least 21 years older than the child who is being adopted.
Who can adopt a child?
Adoption by a male (Section 7)
There are certain requirements for a man for adoption:
- He should be a major.
- He should have a sound mind.
- He should take the prior permission of his wife (if he got married). Her wife’s consent is also very necessary.
Adoption by a Female (Section 8)
There are certain requirements for a woman for adoption:
- She should be a major.
- She should have a sound mind.
- She should be unmarried or in case of married her marriage should be dissolved or her husband is no more.
Who can give a child up for adoption?
Section 9 of this Act describes the people who can give adoption. The following peoples are as follows:
- The person who is the natural guardian of the child only has the power to give adoption.
- If the father is alive then he has the right to give adoption. No consent is provided by his wife unless and until his wife is not a Hindu or, she is unsound mind as declared by a competent Court.
- Similarly, a mother can give in adoption if the child’s father is no more or ended to be a Hindu or has been declared by the competent Court as an unsound mind.
- If both the parents of the child are dead or declared as the unsound mind by the competent Court then the present guardian of the child can give adoption with prior permission of the Court.
Earlier women had no rights on any property and they were given protection by the male members of the family, joint Hindu family. As per the successive ruling government, they had taken some steps for the protection and improvement of property rights to women.
The Hindu women’s right to property Act, 1937 states the rights for Hindu widow, or her husband dying without making any will. In that case, the widows are allowed to share the property as that of a son. But, interest in that property and Hindu women Estate are in limited interest. Many changes were made in the property rights of women by the Hindu Succession Act, 1956.
Section 14 of the Hindu Succession Act states about the rights of a female in any of the property of a Hindu Woman. These rights include:
- many natural rights like disposal of property,
- rights that are unrestricted.
Section 14 of the Hindu Succession Act encloses both movable and immovable property which are obtained by:
- in lieu of maintenance,
- arrears of the maintenance,
- property purchased by her own,
- property obtained by her own skills,
- prescription or in any other manner.
Hindu Law under the Fundamental Rights
Fundamental Rights of The Constitution of India on which the Hindu Law lies on, are as follows:
- First of all, we shall start with Article 15 of the Indian Constitution, which comes under Right to Equality. It talks about prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth. Hindu law is related to this because of the discrimination against the religion as Hindu is also a religion.
- Article 25 says about the freedom of conscience and free profession, practice and propagation of religion which comes under Right to freedom of Religion.
- Article 26 says about the freedom to manage religious affairs.
- Article 27 says about freedom as to payment of taxes for promotion of any particular religion.
- Article 28 says about freedom as to attendance at religious instruction or religious worship in certain education constitutions.
- Article 29 states the protection of the interests of minorities.
- Article 30 states about the Rights of minorities to establish and administer educational institutions.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA