Sources, Schools, and Application of Hindu Law notes — Unit 1

Before understanding the law, we must know who it applies to. Section 2 of the Hindu Marriage Act, 1955 (and identical sections in the other three Hindu Law Acts) defines the application of Hindu Law.

⇒1.1 Who is a Hindu?

Hindu Law applies to:

• By Religion: Any person who is a Hindu, Jain, Sikh, or Buddhist by religion.
• By Birth: Any child, legitimate or illegitimate, whose both parents are Hindus, Buddhists, Jains, or Sikhs.
• One Parent Rule: Any child, legitimate or illegitimate, where only one parent is a Hindu/Buddhist/Jain/Sikh, PROVIDED the child is brought up as a member of the tribe, community, group, or family to which that parent belongs.
• By Conversion: Any person who is a convert or reconvert to the Hindu, Buddhist, Jain, or Sikh religion.
• The Negative Definition: Any person domiciled in the territories of India who is NOT a Muslim, Christian, Parsi, or Jew by religion.

Hindu law is not entirely man-made; traditionally, it is believed to be of divine origin.

⇒2.1 Shruti (What was heard)

The primary and paramount source of Hindu Law. It literally means 'that which has been heard'. It refers to the four Vedas (Rig, Yajur, Sama, Atharva) and the Upanishads. Hindus believe the Shruti contains the very words of the deity, revealed to ancient sages (Rishis).

⇒2.2 Smriti (What was remembered)

It literally means 'that which is remembered'. While Shruti is the word of God, Smriti is the word of Rishis who remembered what was revealed to them and wrote it down. The Smritis (like Manusmriti and Yajnavalkya Smriti) form the practical basis of Hindu law.

⇒2.3 Digests and Commentaries (Tikas)

Since the Smritis were often contradictory or difficult to apply to changing times, later scholars wrote commentaries on them to explain and reconcile conflicts. The two most famous commentaries gave birth to the two major schools of Hindu Law (Mitakshara and Dayabhaga).

⇒2.4 Custom (Sadachara)

Custom is a rule which, having been continuously and uniformly observed for a long time, has obtained the force of law.

Rule: Under Hindu law, Custom overrides written text. If a valid custom conflicts with a Smriti, the custom prevails (except where specifically abolished by modern statutes).

During the British period and after independence, new sources were added to formalize the law.

• 1. Legislation (Statutes): The most powerful modern source. In 1955-56, the Indian Parliament codified major parts of Hindu Law into four Acts: The Hindu Marriage Act (1955), The Hindu Succession Act (1956), The Hindu Minority and Guardianship Act (1956), and The Hindu Adoptions and Maintenance Act (1956).
• 2. Judicial Precedent: The decisions of the Supreme Court and High Courts. According to Article 141 of the Constitution, the law declared by the Supreme Court is binding on all courts in India.
• 3. Justice, Equity, and Good Conscience: In cases where there is no specific rule in the Smritis, no custom, and no statute to guide the judge, they must decide the case based on fairness, equity, and common sense.

Because India is vast, different regions interpreted the Smritis differently. These differing interpretations gave rise to two primary Schools of Hindu Law.

⇒4.1 Key Differences Explained

• Right to Property: In Mitakshara, a son gets a share in the ancestral property the moment he takes his first breath. In Dayabhaga, a son has NO right in the ancestral property as long as his father is alive.
• Right to Demand Partition: In Mitakshara, a son can demand partition against his own father. In Dayabhaga, a son cannot demand partition from his father.
• Power of Father: In Dayabhaga, the father is the absolute owner of the property and can sell or gift it however he wants. In Mitakshara, the Karta (father) can only sell ancestral property for 'legal necessity' or 'benefit of estate'.

⇒Summary of Key Takeaways

• Hindu law applies to Hindus, Buddhists, Jains, Sikhs, and anyone not Muslim, Christian, Parsi, or Jew.
• Ancient Sources: Shruti (Vedas), Smriti, Commentaries, Custom.
• Modern Sources: Legislation, Precedent, Justice/Equity.
• Mitakshara: Right by birth (Applies to all India except Bengal/Assam).
• Dayabhaga: Right by death (Applies only in Bengal/Assam).

⇒University Exam Tips for this Unit

• Application of Hindu Law: If an exam problem states 'A is a Jain who married B, a Sikh. Does Hindu law apply to them?', the answer is YES. Both are covered under Section 2 of the HMA.
• Mitakshara vs Dayabhaga: This is a guaranteed 10-15 mark question. Always draw a comparison table. Focus entirely on the difference in 'Right by Birth' versus 'Right by Death of the Father'.
• Custom: Remember to mention that for a custom to be valid, it must be ancient, continuous, certain, and not opposed to public policy or morality.