INTRODUCTION

A separate system of personal laws from the general laws is in place in India. For example, personal law pertains to individuals who practice a specific religion. Hindu law applies to Hindus, Muslim law applies to Muslims, Christian law applies to Christians, and so on. Only that specific area that isn’t yet protected by an equivalent territorial law is the domain in which personal law functions. A legislation pertaining to “inheritance, marriage, caste and other religious usages and institutions, the law of the Koran with respect to the Mohammedan and the law of the Shastras with respect to the Gentoos shall be invariably adhered to” was passed by Warren Hastings in 1772. This policy was rigidly adhered to and this provision was reiterated in later regulations. As a result of this policy at the present day, Hindus are governed by the Hindu Personal Law in regard to matters such as marriage, matrimonial reliefs, succession, guardianship, adoption, maintenance, gifts and wills, etc.

The Hindu family law consists of the four major acts of:

• The Hindu Marriage Act, 1955
• The Hindu Adoptions and Maintenance Act, 1956
• The Hindu Minority and Guardianship Act, 1956
• The Hindu Succession Act, 1956

In the past, morality, law, and religion were all referred to as “Dharma” since there was no separation between them. Hindu law is derived from the three sources of Dharma, which are the “Shrutis,” “Smritis,” and “Sadachara.” Originally, judges and the authors of Hindu Law added an aspect of divinity to it to give it a sense of legitimacy and distinct authority. Later, preachers, interpreters, and guardians of the law did the same.[i]

Presently, Hindu Law as administered by the courts is found in:

1. Shrutis
2. Smritis

• Commentaries and Digests

1. Customs
2. Judicial decisions
3. Legislative Enactments

 

1. Shrutis

The four Vedas and their corresponding Brahmanas make up the Shrutis in the main. Samhita and Brahma are the two sections that make up each of the Vedas. The Brahmanas are ceremonial texts that prescribe sacrifices and elucidate their significance. The Rigveda, Yajurveda, and Samaveda were the first three Vedas. A fourth, the Atharvaveda, was subsequently added. The Vedic hymns depict Hindu society as an evolved form of civilization rather than that of a pastoral or nomadic people. In the Vedic era, Hindu society was made up of a collection of patriarchal households. Family law must have originated from the patriarchal family customs of the Vedic era. With a view to cement the union of different social elements and promote the collective happiness of different social groups and individual members, jurists undertook the mammoth task of creating a body of laws with the ancient and approved customs of the primary guide, which are the Vedas.[ii]

1. Smritis

The institutes or manuals collectively referred to as “Smritis,” written by eminent medieval Hindu law scholars, are the second source of Hindu law after the Vedas. There is no definitive agreement on the precise number of Smritis because different jurists have given different figures. Three are the most significant in terms of Hindu law: Manu Samhita, Yajnavalkya Samhita, and Narada Samhita.

Of the numerous Smritis, the foremost in rank or authority is the Manu Smriti, which is divided into 12 chapters. In the 8^th chapter are stated rules on 18 titles of law including both civil and criminal. Laws of inheritance, property, contracts, partnership, master and servant are some of the branches of law comprising the Manu Smriti.[iii] Yajnavalkya Smritis considered more liberal especially in the recognition of women’s rights to hold and inherit property and the status of Shudras. The punishments were less sevre than those specified in the Manu Smriti. The Narada Smriti provides for the recognition of widow remarriage, a woman’s power to hold and inherit property and father’s absolute rights to gift his separate property to his sons.

• Commentaries

Despite the fact that jurists regard the Vedas as being extremely important, they do not contain explicit legislation. As a result, the family and social norms that the commentaries and digests discuss gain significance. The lawgivers’ ostensibly at odds or contradicting comments were harmonized to highlight the necessity for consistency and clarity. The writing of the Smritis commentary was the outcome of this. The main goal was to clarify its true meaning in order to achieve uniformity and consistency, which would allow society to go forward in compliance with the law. A few instances of commentary are the works of Mitakshara on the Yajnavalkya Smriti and Medhatithi on the Manu Smriti.

1. Customs

The importance of customs as a source of law are unparalleled. In the early stages of development of Hindu Law, customs were accepted as an embodiment of principles and rules prescribed by sacred traditions. Many of them incorporated the rules of nature while some had religious sanction. Under Hindu law, old customs have proprio vigore, the efficacy of law. The expressions used to denote customs were ‘achara’, ‘sadachara’ and ‘shistachara’. This also includes the principles of morality signifying the connection between custom, morality and public policy. In the case of Balwant Rao v. Baji Rao, the importance of customs has been recognised by the judiciary as it has the potential of migrating with the families adhering to a particular established custom.[iv]

1. Judicial Precedents

With the establishment of the courts and the introduction of the formal adversary litigative system in India during the British regime, initially the courts applied the Smriti Law as found in the commentaries to a specific case before them. During the application, not only the well-established interpretations but also their own understanding and interpretations were included in the judgements. In this way, the decision of one case was binding not only on the specific litigants but also indirectly on the entire community. Judicial authority by way of precedents came to be recognized simultaneously with the authority of the texts. The decisions and ratio laid down by the Privy Council and the Supreme Court are binding on all courts in India. The decisions of higher courts have only persuasive authority on the parallel high courts but are binding on the subordinate courts within their jurisdiction.

The Court observed in Surjit Lal Chhabda v. CIT that “Hindu Law today, apart from the piecemeal codification of some of its branches like the laws of marriage, succession, minority, guardianship, adoption and maintenance is judge-made law, though that does not detract from the juristic weight of Smritis like Yajnavalkya Smriti nor from the profundity of Vijananeshwara’s commentary on it, the critique bearing the humble title of ‘Mitakshara’.”[v]

1. Legislations

During the British period, as different parts of India were subject to diverse rules and practices, the British Government was initially hesitant to legislate on the personal matters of Indians. The earlies legislations, therefore, backed by a cautious approach, were either reformative or were with a view to supersede the established rules of Hindu law. Nevertheless, legislation became a specific, easily ascertainable modern source of law. The need for clarification and codification of Hindu Law became a necessity and emerged as one of the demands gaining momentum during India’s independence struggle. The crux of the demand was not to impose the Shastric law, but to reform, clarify and codify the law bringing it in tune with the progress of the Hindu society.

HINDUS UNDER CODIFIED LAW

Under the Code and presently under the split Acts, a person professing the Hindu, Buddhist, Jain or Sikh religion, is a ‘Hindu’. According to the statutes governing Hindu law, if both the parents are Hindus the child will be a Hindu and thus the time for determination of the religion of the child in these cases is at the time of birth.

[i] RK Agarwal, Hindu Law, (19^th ed., 1996).

[ii] Rajkumar Sarvadhikari, The Principles of Hindu Law of Inheritance, 1882.

[iii] Mulla, Principles of Hindu Law, (18^th ed., 2001).

[iv] Balwant Rao v. Baji Rao, (1921) ILR 48 Cal 30 (PC).

[v] Surjit Lal Chhabda v. CIT, (1976) 2 ITR 164.