India is a country of diversity where people from different communities, religions, race, thrive on the same land. Regardless of their distinctions, people share an invisible bond of respect and care for each other. The society which existed years ago has undergone a transformation and amalgamation of new ideologies. There are basically four religions to which people belong: Hinduism, Islam, Christianity, and Sikhism. They are actually a way of life followed by people around the world and hence they are respectively called Hindu, Muslim, Christian, and Sikh. These religions are based on rules and regulations given by respective Gods. All have one thing in common, all preach peace and love for humanity. There are general laws that govern people irrespective of religion and there are personal laws different for every religion which control people of one particular religion.
Hinduism is the oldest and the most followed religion in India. Hindus believe in numerous gods and goddesses, who are known to be 33 crores in total. There is no founder of Hinduism but it is mainly based on customs, rituals, prayers, encrypted in the Vedas. Major doctrines of Hinduism are a continuous cycle of life, death, and reincarnation, karma (law of cause and effect), dharma (duties), Artha (prosperity), Kama (desire), moksha (salvation).
TIMELINE OF HINDUISM
2300 BCE- 1500 BCE: Indus Valley Civilization
1500- 500 BCE: Vedic period
500 BCE-500 CE: Epic, Puranic and Classical Age
500 CE- 1500 CE: Medieval Period
1500 CE- 1757 CE: Pre-Modern Period
1757-1947 CE: British Period
1947- till present: Independent India
The subcontinent saw the emergence of dwellings like Harappa, Mohenjo-Daro, perfect architectural houses and unique drainage system, seals and scripts yet to be deciphered, rituals and sacrifices performed in front if deities of gods and goddesses; writing four Vedas, worshipping gods like Indra, Vayu, Agni, Soma, Varuna, etc.; compilation of dharma shastras and dharma sutras, Mahabharata and Ramayana, other Sanskrit texts, worship of Lord Vishnu, Lord Shiva and Goddesses; construction of magnificent temples for important deities, development of Bhakti and Sufi traditions; rise of Muslim power and conflict with Hindus, Islamic architecture introduced; colonization by British leading to reforms in Hindu practices like Sati, widow remarriage, Brahmo Samaj, Arya Samaj founded, introduction of western education, cultural organizations like Vishwa Hindu Parishad, Rashtriya Swayam-Sevak Sangh, established; independence and partition, India becoming a secular nation, differences on the basis of caste and religion, Hindu diaspora spread around the world.
This timeline is significant because the evolution of Hindu Law has its roots and sources within the history of the emergence of this way of life. The period of this personal law before 1947 is referred to as Classical Hindu Law and the period just after independence is called Modern Hindu Law. This article highlights some important aspects of Hindu Law, the inclusion of provisions of Hindu Law in the constitution of India, and various branches of Hindu Law.
ORIGIN, NATURE, AND SCOPE OF HINDU LAW
It is already known that the Hindu religion was not founded by anyone but was a compilation of local practices and traditions of people. It has existed for more than five thousand years and still constructs a code of conduct of harmonized life. Hindu Law is one of divine origin but people perceived it to be a result of rituals since time immemorial. No one could actually challenge the divine authority but the gods and goddesses could be impressed by the sacrifices, rituals, and prayers of the people. Hindu law also prescribed the appropriate manner in which holy rites were to be performed and they were adhered to by the people.
Hindu is derived from a Sanskrit word ‘Sindhu’ which is designated to Indus River. The area located in and around the Indus Valley Civilization is called Hindustan and the people dwelling there are called Hindus. Hence, Hindu is not only a religion but a nation-state, unique in itself. It was only because of the influence and dominance of the Brahmin community that shaped people’s customs in such a way that the secular nature of Hinduism was questioned for being biased. Hindu Law is not of legal nature but constitutes a religious nature as it is a way of life rather any solely being a control.
The Hindu Law applies to Hindus particularly, the rights and responsibilities of a Hindu are only determined by their personal law, i.e., Hindu Law. These determinations come in the form of marriage, divorce, maintenance, guardianship, inheritance, and division of ancestral property, etc.
APPLICATION OF HINDU LAW
Hindu Law basically will apply on Hindus and the question here is who is a Hindu? Answer to this question can be referred from legislations like the Hindu Marriage Act, 1955, Hindu Succession Act, 1955, Minority and Guardianship Act, 1956, Hindu Adoption and Maintenance Act, 1956. A Hindu is a Hindu either by birth or by religion. If he is born to Hindu parents out of a valid marriage, he is a Hindu; if he is born to parents where one of them is Hindu and is brought up as Hindu, he is a Hindu.
Hindu Law applies to the following:
- a person who is a Hindu by religion
- a Virashaiva, a Lingayat or a follower of the Brahmo, Prathana or Arya Samaj
- a person who is a Buddhist, Jaina or Sikh by religion
- a person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein it this Act had not been passed
- child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion
- child legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs
- an illegitimate child whose mother is a Hindu and father is a Christian and the child is brought up as Hindu
- anyone who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion
Hindu Law does not apply to the following:
- an illegitimate child born to a Hindu father and Christian mother who is brought up as Christian
- an illegitimate child born to a Hindu father and Muslim mother
- a Hindu who converts to Christianity and succession of the estate of such person who dies without making a will
- members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless Central Government, by notification in the Official Gazette, otherwise directs
- a Hindu who converts to Islam
A famous case of Shastri Yagnapurushadji vs. Muldas Brudardas Vaishya the honorable Supreme Court held that various sub-sects of Hindus like Swaminarayan, Satsangis, etc. are also Hindus by religion as they follow the same basic concept of Hindu philosophy. The Satsangis in the present case were followers of Swaminarayan, perceived to be different from Hindu Gods. But it was found that Swaminarayan’s teachings were to respect and follow Vedas and attain salvation through devotion; which are also the main doctrines of Hinduism.
In Perumal vs. Ponnuswami the apex court found that a person can be Hindu if after expressing the intention of becoming a Hindu, follows the customs of the caste, tribe, or community and the community accepts him. The appellant, a Hindu was married to a Christian woman according to Hindu rites. Ponnuswami was born in 1958 and through his mother, wife of Perumal, claimed half share in the family property. The appellant declined the claim by saying that the marriage was not a valid one and he was an illegitimate child. But the court held that the Christian woman converted to Hinduism and abandoned Christian faith and was accepted by the Hindu Nadar community too. No purification ceremony is necessary to convert to Hinduism, but a bona fide intention accompanied by unequivocal conduct is sufficient.
In Commissioner of Wealth Tax vs. R Sridharan, a similar case, where who a Hindu is was discussed and decided by the Supreme Court. The respondent was a Hindu who along with his father and brothers constituted Hindu Undivided Family (HUF). There was a partition among them and some companies came to him. He married a Christian woman under the Special Marriage Act, 1954, and a son was born to them. For two consecutive assessment years, he was assessed as an individual by income and wealth tax but then claimed to be assessed together with his son as a member of the HUF. The Wealth Tax Officer refused on the ground that his son could not be considered a Hindu as the marriage of the couple was not solemnized under ordinary Hind Law. The issue came to the SC which held that Sridharan was validly married to Christian woman, that he did not renounce Hinduism and his son was a legitimate one as he was brought up in a Hindu family and was recognized by the society as a Hindu and was acknowledged by his father forming HUF along with him, hence was a Hindu.
In Bhagwan Koer vs. J C Bose it was held by the Privy Council that the Hindu religion is marvelously catholic and elastic. Its theology is marked by eclecticism and tolerance and almost unlimited freedom of private worship. Its social code is much more stringent, but amongst its different caste and sections, exhibits a wide diversity of practice. A person remains Hindu till he renounces the faith in Hinduism.
CONSTITUTIONALITY OF HINDU LAW
The personal laws are sometimes in conflict with each other and many times they are a challenge in front of the supreme law of the land. Similarly, be It Muslim Personal Law or Hindu Law, there are some customs and practices unique to each with cannot be adopted by the other. And it is because people respect and strictly abide by the customs that even if a custom is in conflict with the prevailing law, they never change their practice and question the validity of the law. Muslim orthodoxy has sometimes made it difficult to implement the Uniform Civil Code. But Hindu Law in other instances posed challenges too. In the case of State of Bombay vs. Narasu Appamali the issue was of the constitutional validity of Bombay Prevention of Hindu Bigamous Marriage Act, 1946, and the tussle between the personal laws and the fundamental rights. Muslim men are allowed to marry four times during the lifetime of their wives but Hindu men can marry only once, which was discrimination on the basis of religion (violation of Article 14 of Constitution) through the Act of 1946. It also violated Article 44 of the Constitution (Directive Principles of State Policies) by not implementing UCC. The court held that Article 13 says that any ‘law’ which violates a fundamental right is void. Under Article 13, the definition of law does not include personal laws and are distinguished from customs and usages. Inference can be made that personal laws will infringe the rights and the Act of 1946 is valid. The same judgment was delivered in the case of Srinivas Iyer vs. Saraswathi Ammal where the validity of the Madras Hindu Bigamous (Prevention and Divorce) Act, 1949 was in question.
The Supreme Court in Krishna Singh vs. Mathura Ahir echoed this view wherein they succinctly laid down that Part III does not touch upon personal laws so long as they are not “altered by any usage or custom or is modified or abrogated by statute”.
SOURCES OF HINDU LAW
Source of law refers to the creator of law; what material can be relied upon for knowing its origin. The sources of Hindu Law are categorized into two parts, Ancient Sources, before codification ancient texts made up vital sources and Modern Sources, during British rule, when codification of laws took place, they became authentic sources.
Ancient Sources are as follows:
- SHRUTI: It is derived from a Sanskrit root ‘shru’ which means ‘to hear’. It is the first and foremost source of Hindu Law. The sages and saints had reached such a height of spirituality, that they could hear the divine revelations and got the knowledge of the four Vedas, Rig Veda, Sama Veda, Yajur Veda, and Atharva Veda. They contained concepts and theories of sacrifices, rituals, prayers, mantras, hymns, chanting to be performed, and recited in front of the divine deity. These Vedas were also sub-divided into Samhita, consisting of hymns and mantras, Brahmin, explaining the meaning of mantras and their importance. The concept of Karma and the varna system were introduced in the Vedic Period and strengthened further.
- SMRITI: Derived from another Sanskrit root ‘smri’, it refers ‘to remember something’. They were like an extension to shrutis, when the saints heard they wrote the divine disclosures for their successors and followers to preserve and practice it. They were mainly poetic in nature as the written memoir contained shlokas and short maxims. Smritis are divided into Dharmasutras and Dharmashastras. The smritis written by various authors were important from the religious and societal point of view. For example, Manu Smriti, Yajnavalkya Smriti, Narada Smriti, are the prominent ones.
- COMMENTARIES AND DIGESTS: The smritis were written in complex Sanskrit and the common people found it difficult to read and understand. Hence, commentaries and digests were written as an explanation for them. If some questions remained unanswered even after reading smritis, they were used as an important and feasible source of Hindu Law. Commentaries were explanation to only one smriti but digests summarized all the smritis altogether. Mitakshara is a well-known commentary on Yajnavalkya smriti written by Vijnanesvara.
- CUSTOM AND USAGES: They are the practices or actions of a community followed by generations since time immemorial. The time and place of their origin cannot be traced but they should be certain, continuous, not against public policy or any law in force or morality to be called custom. A usage is a repeated action and can exist without custom. The personal laws are dependent upon the customs when they are not codified and after codification, the personal law statute gives space to these customs to respect the long-time rites of the communities.
Modern Sources are as follows:
- JUSTICE, EQUITY, AND GOOD CONSCIENCE: The judges in British India used the principles of justice, equity, and good conscience to decide the cases. They could not obviously search for the Vedas and ancient Sanskrit literature to regulate the conduct of people but could be reasonable and fair while dealing with Indian disputes. In a situation where no rule is given, a sense of reasonableness must prevail. According to Gautama, in such a situation, the decision should be given that is acceptable to at least ten people who are knowledgeable in Shastras. The privy council found any law to be conflicting, they used the concept of ‘Nyaya’ to ensure justice.
- PRECEDENTS: The idea of stare decisis emerged in the colony during British reign. If one case has similar material facts and situation to that of a previous (decided) case, this new case is decided on the ratio of that previous case law. It was during this period when the hierarchy of the courts was set up which mandated that decision of apex court will be binding on all the lower courts and similar cases dealt by it. Likewise, the decision of the High Court will have to be accepted by District courts. Hence, precedents became secondary sources of law.
- LEGISLATION: It a direct source of law. The legislation is the law made by the Parliament, which is also a British legacy. English implemented laws in its colonies for immediate control over the territory and the people. Codification of statutes and personal law took place during and after British rule which helped judges and courts to resort to them for solving disputes. Some legislations that have supplemented Hindu Law are as follows-
- Hindu Widow Remarriage Act, 1856
- The Hindu Disposition of Property, 1916
- The Indian Succession Act, 1925
- The Child Marriage Restraint Act, 1928
- The Special Marriage Act, 1954
- The Hindu Marriage Act, 1955
- The Hindu Minority and Guardian Act, 1956
- The Hindu Succession Act, 1956
SCHOOLS OF HINDU LAW
A law gives liberty to people to interpret itself in different ways, as a result of which conflicting branches regarding the same law emerge. Similarly, schools of Hindu Law are based on two different commentaries followed in distinct parts of India with their own interpretation of the personal law, that are
- MITAKSHARA: Commentary written by Vijnaneswar in the latter half of the 11th century, it is recognized and accepted throughout India except Bengal and Assam. The difference in practices and customs result in divergence inter and intra school. The Mitakshara School is further divided into five sub-schools, Benaras, Mithila, Dravida, Bombay, and Punjab School supported by literature like Nirnaya Sindhu, Smrita-Sara, Parasar Madhava, Vivadatandava, Virmitrodaya, respectively.
- DAYABHAGA: It was a commentary written by Jimutvahana and was prevalent in Bengal and Assam. Its period is disputed but is known by authors to be written after the Mitakshara and challenges the absurd and baseless practices of Hindu society.
Differences between Mitakshara and Dayabhaga Schools:
- Under Mitakshara, right to property of the coparceners arises from birth and son, on birth becomes co-owner of his father’s ancestral property; under Dayabhaga, the right to property to son only arises after father’s death.
- Father has a restricted right to alienate his son from being coparcener of the ancestral property under the former; the father can unquestionably alienate his son from inheriting the ancestral property under the latter.
- If the joint property is to be divided, the son can ask for partition against the father under Mitakshara; the son has no right to demand partition of family property under Dayabhaga.
- Under the former, the interest of members of joint property, after his death would be transferred to the other members by survivorship; under the latter, after the death of the member, the interest would pass on to his heirs including, son, widow, and daughter.
- Under Mitakshara, only the male successors get the co-ownership of the property; under Dayabhaga, female successors can get the property in inheritance.
- Inheritance is governed by consanguinity or blood relations under Mitakshara; under Dayabhaga inheritance is regulated by religious efficacy.
The diverse culture passed on from time immemorial blends together perfectly to make India a truly unique country. People from different backgrounds have come together to help each other and themselves. The humans on earth one of their kind but are distinct by the way of gender, class, caste, race, color, religion. Even if they follow one ideology and have one destination, they use different paths and ways to accomplish it. The aim of every religion is peace and love in a similar sense but they abide by their distinguished rules to maintain harmony. Hindu Law the oldest and most followed is not just for sanctions and injunctions but it is a way of living in itself shaped by culture and traditions. It has evolved and developed much and is growing towards modernity, but then also orthodoxy exists.
- AIR 1966 SC 1119.
- 1971 SCR (1) 49.
- 1976 HLR 600 (SC).
-  ILR 31 Cal. 11.
- AIR 1952 Bom 84.
- AIR 1952 Mad 193.
- (1981) 3 SCC 689.
Divya Issarani | Hidayatullah National Law University, Raipur