Sunday, August 31, 2008

Hindu Law (part 1)

Application of Hindu Law

Persons subject to Hindu Law-

Shastri Yagna Purushdasji v. Muldas

Bhundardas Vaishya- It is extremely difficult,

though not impossible, to define the Hindu

religion in the way the other religions are

defined. It embraces numerous views and ways

of life.

The term Hindu is not to be found anywhere in

the Dharmashastras. It is a foreign word. It is

derived from the word Sindhu. Sindhu is the

name of a river in Indian sub-continent. The

word Sindhu was mis-spelled as Hindu by the

Persians. The sub-continent came to be known

as Hindustan and its people as Hindus. Thus

etymologically, the word Hindu does not signify

a religion; it refers to a territory or nation.

Hindu law is a personal law. So, Hindu law

should define who is a Hindu, and upon whom

the Hindu law applies.

A portion of Hindu law has been codified by

Parliament in four Acts-

WelcomeHello students of law, I hope you are well with the grace of almighty. You will love to know that this blog is created for the students of law to help in their academic study. Many at times, you need to look at a particular subject, say Law of contract, and you want to know what it is in brief. I don't know of any book where you may find such brief form. So, I came up with this idea to provide you various subjects we study in LLB (Hons) graduation. This site is created for the students of law of Bangladesh irrespective of the university they study in. If you find any information useful, don't forget to comment on it. Your suggestions are always welcome.

0Share More Next Blog Create Blog Sign In

i) The Hindu Marriage Act, 1955

ii) The Hindu Minority and Guardianship Act,

1955

iii) The Hindu Adoption and Maintenance Act,

1955

iv) The Succession Act, 1956

According to these Acts, a Hindu is a person

who-

Is a Hindu by religion in any of its form or

development

Is a Buddhist, Jain or Sikh by religion

Any person who domiciled in India, who is

not a Muslim, Christian, Persi or Jew by

religion

Hindus domiciled in the territories to which

the Act extends

Followers of Hindu law

Followers of Hindu Law-

i) Legitimate child of Hindu parents

ii) Illegitimate child of Hindu parents

iii) Children of one Hindu parent

iv) Converted- The law was that the conversion

was not accepted. But later it was accepted but

the converted person was given the lowest

caste. All Hindu laws will be applicable upon him

except the succession.

Requirement of conversion- (i) Unequivocal

conduct, (ii) Bona fide intention, (iii) No

ceremony is required and (iv) His motive is not

important (Raman Nadar v. Snehapoo).

Do you find this site to be useful for law students?Yes

No

Not enough

Votes so far: 3 Poll closed

3 (100%)

0 (0%)

0 (0%)

Blog Archive 2009 (4)

2008 (24)

November (1)

October (1)

September (2)

August (20)

Rules and Procedures of the Parliament

Maxims of Equity

Term Paper Case study

Law on Torts (part-2)

Law on Torts (part-1)

Hindu Law (Part 2)

Hindu Law (part 1)

Glossary of Legal terms

Fallacy

Procedure of trial (Civil & Criminal)

All about the Courts of Bangladesh

Special Courts & Tribunals at a glance

Criminal procedure in brief

Mediation and Negotiation

Techniques of Legal Research

English for Law

Persons not subject to Hindu Law-

i) Non-Hindu child of one Hindu parent

ii) Converts from Hindu religion

Abraham v. Abraham- Those who convert to

Islam and other castes are not subject to Hindu

Law.

Doctrine of factum valet-

It is a doctrine of Hindu law, which was originally

enunciated by the author of the Dayabhaga, and

also recognized by the followers of the

Mitakshara, that a fact cannot be altered by a

hundred texts. The text referred to are directory

texts, as opposed to mandatory texts. The

maxim, therefore, means that if a fact is

accomplished, i.e., if an act is done and finally

completed, although it may contravene a

hundred directory texts, the fact will nevertheless

stand, and the act done will be deemed to be

legal and binding.

This doctrine came from Roman maxim factum

valet quod fieri non debuit which literally means

that what ought not to be done become valid

when done.

Sources of Hindu Law

Founder of Mitakshara School Vijaneshwar said,

sources are the means of knowing law.

Hindu law is based on tradition and analytical in

nature. Law is part of Dharma. So the sources of

Dharma are the sources of Hindu law. But in a

secular point of view- it is a man-made institution

of control.

Sources may be arranged in the following

order-

Legal profession & Ethics

History of Government of Bangladesh since independ...

Some Question Answer of Constitutional law of BD

Some Question Answer of Legal History of BD

ContributorsProvat Nazmi

Khaled Saifullah

i) Legislation

ii) Dharma Shastras

The Vedas

The Smritis

The Puranas

iii) Sadachar (Custom)

iv) Commentaries and Digests

v) Precedents

vi) Principles of justice, equity and good

conscience.

These laws are applicable as long as they are

consistent to the Constitution.

Krishna Sing v. Mathura Ahir- The ban which

was upon the Sudras is abrogated, because it is

inconsistent with the Fundamental Rights of the

Constitution.

i) Legislation-

Main legislations are-

The Caste Disabilities Removal Act, 1850

The Hindu Widow Remarriage Act, 1856

The Majority Act, 1875

Transfer of Property Act, 1882 (overrides

the Hindu Law of Property).

The Disposition of Property Act, 1960

The Succession Act, 1956

The Child Marriage Restraint Act, 1929

The Special Marriage Act, 1954

ii) Dharmashastra-

The term Shastra came from shas which

means to teach. Dharmashastra means

teacher of dharma. It has two meanings-

a) Comprehensive- it includes Vedas, Smritis

and Puranas

b) Limited- It includes only Smritis.

Dharma is divided into six-

i) Barna Dharma It is Dharma of the

castes. It provides the laws applicable to

different castes.

ii) Ashrama Dharma It means four stages

of life: (a) Brahmacharya (b) Grihastha (c)

Banaprashta (d) Sanyas.

iii) Barnashrama Dharma It is the

combination of the first two Dharmas.

iv) Guna Dharma It means inherent nature

of a thing.

v) Nimitto Dharma It is the secondary

Dharma in absence of primary Dharma.

vi) Sadharana Dharma which is proper

Dharma for a person in ordinary situation.

Vedas- Synonym to Vedas is Shruti. Shru

means to hear. Hindus believe that the Vedas

are heard from God and written. There are

four Vedas- (a) Rig Veda (b) Yajur Veda (c)

Sham Veda (d) Atharva Veda.

Each Veda has three parts-

i) Sanhita

ii) Brahmin It describes what the duties are

iii) Upanishad It describes the consequence

to perform a duty.

Smriti- Derived from Smri which means to

remember. People remembered from the

words of the sages, it is not from the God

directly.

Smriti is divided into 2 parts-

i) Dharma sutra- it is mainly prose

ii) Dharma Shastra- it is mainly poetry

(sloka).

Exact number of Smritis is unknown. Some

authentic Smritis are-

Manu, Vaisistha, Brihaspati, Yagnavalkya,

Vyas, Kotilya, Parashar, Katyana.

There are 3 rules in every Smriti-

i) Achar Morality

ii) Vyavahar Rules that the king or judge

used to apply in settling disputes in the

administration of justice.

iii) Prayaschit Penal provisions for

commission of a wrong. There are both

substantive and procedural laws. It has 2

elements- (a) An inner intention to reform

oneself, (b) A readiness for punishment for

committing an offence.

If there is conflict between 2 Smritis, there

is difference in opinion. According to

Brihaspati, Manu is above all Smritis.

According to some, one has to choose

among to conflicting Smritis. According to

others, the more logical one will be accepted.

Purana- It is a book containing five matters-

i) Creation

ii) End of creation

iii) Dynasty

iv) Manavantar

v) History of ancient dynasties

There are 18 Puranas, 18 Upa-puranas and

18 Upapa Puranas.

If there is conflict between Purana and Smriti,

Smriti shall prevail.

iii) Sadachar (Custom)-

Custom is one of the most important sources of

Hindu Law. Where there is a conflict between a

custom and the text of the Smritis, such custom

will override the text.

Collector of Madura v. Mootoo Ramalinga

(Ramnads case) Clear proof of usage will

outweigh the written text of law.

Customs are divided into-

(a) Local customs- are confined to a particular

locality like a district, town or village.

(b) Class customs are the customs of a caste

or a sect of the community or the followers of a

particular profession or occupation.

(c) Family customs are confined to a

particular family only, and do not apply to those

who are not members of such family.

Essentials of valid custom-

i) Ancientness A custom must be minimum

100 years old.

ii) Certainty - Universality in observance is

absolutely necessary.

iii) Reasonableness It should be in

accordance with rules of justice, equity and good

conscience.

iv) Continuity It must be continuous without

interruption.

v) Public policy It must not be against public

policy.

vi) Uniformity It must be uniformly performed.

If a custom meets the abovementioned

requirements, it becomes binding.

iv) Commentary and Digests-

Commentary is the interpretation of the Smritis

by the scholars. It also includes the customs and

usages which the commentators found

prevailing around them. Despite the fact such

commentators have modified the original texts in

order to bring them in line with the local customs

and conditions, the commentaries are now

considered to be more authoritative than the

original texts themselves.

Collector of Madura v. Moottoo Ramalinga-

Clear proof of usage will outweigh the written

text of the law.

These commentaries gave rise to different

schools known as the Mitakshara and

Dayabhaga.

Collection of commentaries is called Digests.

Features of commentary and digest-

i) They have tried to make the subject simple

and easy to understand.

ii) We find quotations of several works (texts)

iii) Topics of Dharma have been widely classified

by the digest

iv) They have included custom and usages

prevailing during their time

v) Commentary and digests kept law abreast of

life.

A lot of commentaries have been made on

Manusmriti. These are called Manu Tika.

Commentaries were started to be written down

from 4-5 century and digests were from 12

century.

Authority of commentary and digest-

Atmaram v. Bajirao If Commentary and

digest conflict with Smriti or Purana,

Commentary and digest shall prevail.

v) Precedent

vi) Principles of Justice, Equity and Good

conscience

Schools of Hindu Law

School means rules and principles of Hindu Law

which are divided into opinion. It is not codified.

There are two Schools of Hindu Law- (a)

Mitakshara (b) Dayabhaga.

Mitakshara School prevails throughout India

except in Bengal. It is a running commentary on

the code of Yagnavalkya. Mitakshara is an

orthodox School whereas the Dayabhaga is

Reformist School.

The Mitakshara and Dayabhaga Schools

differed on important issues as regards the rules

of inheritance. However, this branch of the law is

now codified by the Hindu Succession Act, 1956,

which has dissolved the differences between the

two. Today, the main difference between them is

on joint family system.

Mitakshara- Rights in the joint family property is

acquired by birth, and as a rule, females have no

right of succession to the family property. The

right to property passes by survivorship to the

other male members of the family.

Dayabhaga- Rights in the joint family property

are acquired by inheritance or by will, and the

share of a deceased male member goes to his

widow in default of a closed heir.

Differences between the two Schools in

Coparcenary-

Mitakshara Dayabhaga

i) Right of a son by

birth in the ancestral

property equal to the

interest of his father.

i) A son is entitled to

his ancestral property

only on the death of

his father. The father

is the absolute owner

of his property in his

lifetime.

ii) A son becomes

coparcener right after

his birth. His right is

applicable to the

property of his

grandfather and grand

-grandfather.

ii) A son becomes

coparcener by death

of his father. This right

is not available within

the property of his

father, grandfather or

grand-grandfather.

iii) Everyone is

entitled to the

property as a unit.

Their shares are not

defined. They have

only the commodity of

ownership. There is

joint-tenancy.

iii) Everyones share

is defined. There is

tenancy-in-common.

iv) One cannot

transfer his share to

the third party.

iv) One can transfer

his share.

v) The joint-property

can be partitioned. In

that case, it will be

partitioned as it was in

case of the father.

v) As the shares are

defined, one can

easily partition with

his share.

Differences between the two Schools in

Succession-

Mitakshara- Property of a deceased Hindu is

partitioned into two ways as the property is of

two types- (a) Ancestors property, (b) Separate

property.

Ancestors property is partitioned in accordance

to the Rules of Survivorship. But a Separate

property is partitioned to the descendants.

Dayabhaga- Property is of two types- (a) Joint,

(b) Separate. The descendants inherits the

property whatever type it is.

Mitakshara- In default of close heir, brother and

immediate survivors inherit, the wife does not

inherit.

Dayabhaga- If coparcener dies, his widow will

get the property in default of a close heir but she

cannot alienate.

Mitakshara- The order of heirs is decided by

mereness of blood.

Dayabhaga- The order of heirs is decided by the

competence to offer Pinda and Sraddho to the

deceased.

Effect of migration

A person follows the school of his area. But if he

migrates to another place, he will follow the

School of that locality. This has been decided in

various cases-

Gope v. Manjura Govalin- The burden of

proving migration lies on him who pleads it. The

original place of a family can be inferred from the

chief characteristics of that family.

Keshavarao v. Swadeshrao, 1938- Migration

means leaving to another place forever. But if a

place is divided into two administrative area, that

will not be regarded as migration.

Moolchand v. Mrs. Amrita Bai- A person

migrates will all of his personal laws. Personal

law unlike local law moves with whom he covers.

Notraz v. Subba Raya- A person can be given

an option to give up the law of the old place and

adopt the new one.

Hindu Marriage

Hindu marriage is a religious sacrament. Unlike

Islami law, it is not contract. Hindu philosophers

treated Hindu marriage as a part of Achar

(custom) but not a part of law (vyavahar). It is an

act by performance of which a thing becomes fit

for a certain purpose. These purposes are-

i) Performance of sacrifice

ii) Pleasure and procreation of children (Children

save their fathers from hell-fire)

Marriage is compulsory for all Hindus except for

lifetime students.

Forms of marriage-

There are 8 forms of marriage, 4 of them are

approved and 4 of them are not approved.

Approved forms are-

Brahma, Daiva, Arsha, Prajapatya.

Unapproved forms are-

Gandharva, Asura, Rakshas, Paishacha

Only 2 forms are available now- Brahma and

Asura. Brahma form is approved by law.

In Brahma form- Bride is a gift to the

bridegroom and there is no consideration.

In Asura form- The husband is giving an

amount to father of the bride. It is called Shulka.

It is called sale of the daughter by money.

Caste and marriage-

To marry in the same caste was not approved;

because a Hindu believed that people of the

same caste are Agnate (Agnate means where

there is no female intervention, i.e. Uncle etc.)

Marrying daughter of Agnate was not allowed.

Females of same caste were considered to be

the daughters of Agnates.

Unapproved marriages are of two types-

i) Anulom Marriage between male of a higher

caste and female of a lower caste. It is valid.

ii) Protilom Marriage between male of a lower

caste and female of a higher caste. It is invalid.

Swapinda relationship and marriage-

It is prohibited. It may arise in both Agnate and

Cognate relations.

Mitakshara- Marriage is not allowed in blood

relations.

Dayabhaga- Marriage is not allowed among

those who can offer Pindas.

But if someone marries in Swapinda, it will be

considered valid.

Guardianship in marriage-

It is necessary to have guardians in a Hindu

marriage.

List of guardians-

Mitakshara school-

i) Father

ii) Paternal grandfather

iii) Brother

iv) Other paternal relation of bride in order of

proximity (uncle, cousin)

v) Mother

Dayabhaga school-

i) Father

ii) Paternal grandfather

Posted by Khaled Saifullah at 1:50 AM

iii) Brother

iv) Other paternal relation of bride in order of

proximity (uncle, cousin)

v) Mother

vi) Maternal grandfather

vii) Maternal uncle

viii) Mother

Polygamy is allowed in Hindu law but Polyandry

(polygamy in which a woman has more than one

husband) is not allowed. Some states of India

prohibit polygamy.

Marriage is indissoluble. Divorce is not allowed

at all.

In widow remarriage there is conflict-

According to Manu- It is not allowed because

2nd husband of a pious lady is not to be found

anywhere.

But a woman can remarry in five situations-

i) Husband is unheard of

ii) Husband is deaf

iii) Husband becomes ascetic (Nastik)

iv) Impotent

v) Out caste

Labels: Application of Hindu law,

coparcenary, Dayabhaga, Mitakshara,

Sapinda, Sources, Stridhana, usufruct

6 comments:

Replies

Reply

Anonymous June 13, 2010 3:35 PM

Nothing found

Reply

madhu December 15, 2011 8:00 PM

this notes are very excellent to refer for our

reading.... nice preparation...

anandhi.s

Reply

Anonymous January 9, 2012 10:04 PM

please focus more on mitakshara and

dayabagh school

Reply

Anonymous February 7, 2012

12:49 PM

as for dayabhag .. it is a system

which runs in west bangal and

assam. basic difference between

Mitakshra and dayabhag is that in

Mitakshra (prior to 2005) joint

property used to devolve by

survivor ship and in dayabhag it is

devolved by succession. but now

after amendment in 2005. this

difference has gone thin.

Newer Post Older Post

Comment as: Select profile...

Publish Preview

Home

Subscribe to: Post Comments (Atom)

Anonymous January 9, 2012 10:05 PM

*dayabhaga

Reply

jewel333 March 27, 2012 6:45 PM

pleace focus necessity of hindu law

Reply