Unit 1

1) The Concept of dharma

2) Importance of Dharmashastras in the Legislation of Hindu Law
3) Sources of Hindu law
4) Schools of Hindu Law
5) Application of Hindu Law

1. The Concept of dharma

Synopsis
a) Introduction
b) The concept of Dharma
c) Aim of Dharma Under Hindu Law
d) Types of dharma under Hindu Law
e) Significance of Dharma in Hindu Law
f) Conclusion

A) Introduction

The concept of Dharma is a central tenet in Indian philosophy and spirituality,

forming the ethical, moral, and cosmic framework that governs life. Rooted in the ancient
Sanskrit term "धर्म" (dharma), which means "that which upholds" or "law," it
encapsulates the principles that sustain order, harmony, and righteousness in the universe.

Dharma is a multifaceted idea that can be interpreted differently depending on the

context. In Hinduism, Buddhism, Jainism, and Sikhism, it serves as a guiding principle,
influencing individual behavior, social conduct, and the pursuit of spiritual growth. While
interpretations vary, dharma generally aligns with duty, moral responsibility, truth, and
the natural order of things.

At its essence, dharma offers a roadmap for living a meaningful life, balancing
personal desires with collective well-being. It emphasizes living in alignment with
universal laws, respecting the interconnectedness of all beings, and fulfilling one's unique
role in the larger cosmic order. By adhering to dharma, individuals contribute to the
preservation of harmony within themselves, their communities, and the broader universe.

1
 As a dynamic and context-sensitive principle, dharma evolves with time, culture,
and individual circumstances, making it a timeless and practical guide for leading a
virtuous and balanced life.

B) The Concept of Dharma

In Hindu jurisprudence, dharma forms the cornerstone of moral, social, and legal
order. It encompasses duties, obligations, and laws that guide individuals and society
toward harmony and righteousness. In the context of Hindu law, dharma serves as the
basis for ethical and legal norms, deeply intertwined with spiritual principles.

Hindu law derives its understanding of dharma from ancient texts such as the
Vedas, Smritis (e.g., Manusmriti), Dharmashastras, and Puranas. These texts emphasize
that dharma is not merely a set of rules but a dynamic principle that adapts to time, place,
and circumstances.

C) Aim of Dharma under Hindu Law

The ultimate aim of dharma in Hindu law is to ensure harmony and balance at
multiple levels: individual, societal, cosmic, and spiritual. Rooted in ancient Indian
philosophy, dharma is more than a legal or ethical system; it is a guiding principle that
seeks to align human actions with the eternal laws of the universe.

1. Preservation of Cosmic Order (Rita): One of the primary objectives of dharma is to

uphold the universal order (rita), which is the foundational principle of the cosmos. By
following dharma, individuals and societies contribute to the maintenance of harmony in
the universe. This cosmic perspective underscores that every action has a broader
implication on the balance of existence.

2. Social Order and Harmony: Under Hindu law, dharma ensures the proper functioning
of society by assigning roles and responsibilities to individuals based on their stage in life
(ashrama dharma) and social classification (varna dharma). This framework promotes
cooperation, interdependence, and stability within the community.

3. Regulation of Individual Conduct: At the individual level, dharma guides behavior by

instilling principles of righteousness, duty, and ethical conduct. It ensures that people act
with integrity, compassion, and self-discipline. Adherence to dharma helps individuals
fulfill their personal and societal obligations while avoiding actions that disrupt harmony.

2
4. Attainment of the Four Purusharthas: Dharma plays a central role in achieving the four
aims of human life (purusharthas):

 Dharma: Righteousness and duty.

 Artha: Material prosperity.
 Kama: Legitimate desires and pleasures.
 Moksha: Liberation from the cycle of birth and death.

Among these, dharma is considered the foundation, as it ensures that pursuits of wealth
(artha) and pleasure (kama) are ethical and do not deviate from moral principles.
Ultimately, it paves the way for moksha (spiritual liberation), the highest aim of human
existence.

5. Spiritual Liberation (Moksha): The ultimate aim of dharma is to guide individuals

toward self-realization and liberation from the cycle of birth and death (samsara). By
performing one’s duties selflessly and living in harmony with dharma, an individual
purifies their mind and soul, achieving freedom from karma and attaining union with the
divine

D) Types of Dharma under Hindu Law

1. Varna Dharma

Varna Dharma refers to duties based on the varna system, the fourfold classification of
society:

 Brahmins: Teachers and priests responsible for knowledge and spiritual guidance.
 Kshatriyas: Warriors and rulers tasked with governance and protection.
 Vaishyas: Merchants and agriculturists responsible for trade and economic
activities.
 Shudras: Workers and service providers supporting the other varnas.

Each varna has specific duties and responsibilities (swadharma), which collectively aim
to ensure the proper functioning of society. However, this system has been subject to
interpretation and criticism in modern times for its rigid implementation and inequities.

2. Ashrama Dharma

3
Ashrama Dharma pertains to duties based on the four stages of life (ashramas), guiding
an individual's progression through life:

 Brahmacharya (Student Life): A phase of learning, discipline, and self-control.

 Grihastha (Householder): Focused on family, career, and fulfilling social and
economic responsibilities.
 Vanaprastha (Retired Life): A period of gradual detachment from material pursuits
and preparation for spiritual life.
 Sannyasa (Renunciation): The stage of complete renunciation and pursuit of
spiritual liberation (moksha).

These stages ensure that individuals balance personal, social, and spiritual responsibilities
throughout their lives.

E) Significance of Dharma in Hindu Law

1. Legal and Social Order: Dharma acts as a guiding principle for justice, ensuring
fairness and social harmony. The Dharmashastras outline laws and practices for
governance, family relations, and dispute resolution.

2. Spiritual Growth: Adhering to one's dharma fosters moral development and helps
individuals progress toward liberation (moksha).

3. Flexibility and Context-Sensitivity: Hindu law acknowledges that dharma varies with
time (yuga), place, and circumstances, ensuring adaptability.

F) Conclusion

Under Hindu law, dharma transcends mere legal or social obligations. Its ultimate
purpose is to create a framework where individuals can live a life of meaning, contribute
to societal well-being, and align with the eternal principles of the universe. By doing so,
it not only preserves order but also leads to the spiritual liberation (moksha) of
individuals, which is considered the highest aim of life.

2. Importance of Dharmashastras in the Legislation of Hindu Law

Synopsis

4
 a) Introduction
b) Impact of Dharmashastras on Hindu Law
c) Challenges and Criticism
d) Conclusion

A. Introduction
The Dharmashastras play a foundational role in shaping the principles and practices of
Hindu law. These ancient texts serve as moral, ethical, and legal guides, offering a
framework for regulating individual behavior, social order, and justice. Composed
between 600 BCE and 200 CE, the Dharmashastras, including notable works like
Manusmriti, Yajnavalkya Smriti, and Narada Smriti, provide the philosophical and legal
basis for Hindu jurisprudence.

B. Impact of Dharmashastras on Hindu Law

1. Source of Hindu Law
The Dharmashastras are recognized as a primary source of Hindu law. They codify rules
and principles related to personal conduct, family matters, property rights, inheritance,
and dispute resolution. Many aspects of traditional Hindu law, including those
concerning marriage, succession, and caste duties, are directly derived from these texts.

2. Codification of Duties and Rights

The Dharmashastras outline:
 Individual Duties (Swadharma): Responsibilities based on a person’s role, stage of
life (ashrama), and caste (varna).
 Rights and Obligations: Rules regarding property ownership, inheritance, and
societal obligations are detailed, ensuring order and justice.
These codifications helped establish a structured legal framework for ancient Indian
society.

3. Foundation for Customary Law

While the Dharmashastras provided general principles, they allowed for regional and
community-specific customs (deshachara and lokachara). Hindu law in practice often

5
incorporated these localized traditions, bridging the gap between textual norms and lived
realities.

4. Influence on Modern Hindu Law

The Dharmashastras have significantly influenced the development of modern Hindu law
in the following ways:
 Marriage and Family Law: Principles concerning sacramental marriage,
obligations of spouses, and parental duties stem from these texts.
 Inheritance and Succession: Rules governing ancestral property and the rights of
heirs are rooted in the Dharmashastras. Modern reforms, such as recognizing
women's inheritance rights, build on these traditional frameworks.
 Ethical and Moral Foundations: The emphasis on justice (nyaya), fairness, and
duty (dharma) continues to underpin contemporary interpretations of Hindu law.

5. Role in Dispute Resolution

The Dharmashastras provided guidelines for adjudicating disputes and
administering justice. Judges and kings were advised to base their rulings on the
principles of dharma, emphasizing equity and fairness while considering local customs
and circumstances.

6. Flexibility and Evolution

The Dharmashastras are notable for their flexibility, allowing laws to adapt over time.
They acknowledge the changing nature of society and the importance of context in
interpreting dharma. This adaptability has facilitated the integration of ancient principles
into modern legislative frameworks.

C. Challenges and Criticism

While the Dharmashastras have been influential, they have also faced criticism:
Caste System: The rigid classification of duties based on caste (varna) has been
challenged for perpetuating social inequalities.
Gender Bias: Certain provisions, such as those limiting women's rights, have been
reformed in modern Hindu law to ensure greater equality.

6
Relevance: Some ancient practices no longer align with contemporary values,
necessitating reinterpretation and reform.

D. Conclusion
The Dharmashastras have been instrumental in shaping the moral and legal fabric
of Hindu law. They provided a comprehensive framework for regulating personal and
societal conduct, emphasizing justice, duty, and harmony. Despite modern challenges and
reforms, their enduring influence is evident in the principles underlying contemporary
Hindu legislation. The adaptability of these ancient texts has allowed them to remain
relevant, serving as a bridge between tradition and modernity.

3. Sources of Hindu law

Synopsis
a) Introduction
b) Ancient sources of Hindu Law
c) Modern Sources of Hindu Law
d) Conclusion

A. Introduction
Hindu law is one of the oldest legal systems in the world, rooted in ancient
traditions, customs, and philosophical teachings of the Hindu religion. It governs personal
matters such as marriage, succession, adoption, and maintenance among Hindus. The
sources of Hindu law are the foundation upon which these principles are built and have
evolved over time.
Traditionally, Hindu law derives its authority from divine origins as expressed in
religious scriptures, customs, and commentaries. However, with the advent of modern
legal systems and codification in India, Hindu law has been influenced by legislation,
judicial decisions, and principles of equity and justice.
The sources of Hindu law can be categorized into ancient sources, which include
scriptures like the Vedas, Smritis, and customary practices, and modern sources, which
include statutes, judicial decisions, and legislative reforms. These sources ensure that
Hindu law remains both respectful of its traditions and adaptable to the changing needs of
society.

7
 Understanding the sources of Hindu law is essential for interpreting its application
in contemporary times while appreciating its historical and cultural significance.

B. Ancient sources of Hindu Law

The ancient sources of Hindu law form the foundation of Hindu jurisprudence.
These sources are deeply rooted in the religious, spiritual, and ethical traditions of
Hinduism and provide the guiding principles for the regulation of personal and societal
conduct.
Ancient Sources of Hindu law
 Shruti
 Smritis
 Commentaries and Digests
 Customs

1. Shruti (The Vedas) ( 4000 BC- 1000BC)

Hindu law is one of the oldest and most comprehensive systems of law in the
world, deeply rooted in the spiritual, moral, and philosophical foundations of Hinduism.
Among the primary sources of Hindu law, Shruti holds the most authoritative and sacred
position. Derived from the Sanskrit word "śru" (to hear), Sruti literally means "that which
is heard" and is considered divine revelation. It represents the foundational texts of Hindu
tradition, encompassing the Vedas and their auxiliary texts. The Vedas consist of hymns,
rituals, and philosophical teachings believed to be divinely revealed to sages (Rishis).
These texts are regarded as apaurusheya (not man-made) and timeless. Shruti is
divided into four Vedas:
 Rigveda: Contains hymns and praises to deities.
 Samaveda: Focuses on musical chants and melodies for rituals.
 Yajurveda: Guides the performance of sacrificial rituals.
 Atharvaveda: Includes incantations, charms, and practical knowledge.
Each Veda is further divided into:
 Samhitas: Collections of hymns and mantras.
 Brahmanas: Ritualistic instructions.
 Aranyakas: Forest texts for hermits.
 Upanishads: Philosophical discourses on the nature of reality and the self.

8
 While primarily spiritual, the Vedas lay the ethical and moral foundation for Hindu
law, emphasizing duties (Dharma), truth (Satya), and righteousness.
Sruti is considered the supreme and primary source of Hindu law, forming the
foundation of dharma (righteous conduct). It provides the ethical, moral, and spiritual
principles that govern human behavior. The laws derived from Sruti are not merely legal
rules but also guide individuals toward spiritual fulfillment.
The principles enunciated in Sruti are the basis for other sources of Hindu law, such as
Smriti, custom, and commentaries. For instance:
 Dharma: Sruti defines dharma as the cosmic order and moral duties of individuals.
 Sacramental Laws: Rituals like marriage (vivaha), sacred thread ceremony
(upanayana), and funeral rites are prescribed in Sruti.
 Inheritance and Property Laws: Although these laws are elaborated in Smriti texts,
their foundation lies in the ethical principles of Sruti.

2. Smriti ( 800 BC – 200AD)

Smriti means "that which is remembered" and includes texts written by sages to
elaborate on the principles of Shruti. The Smritis are considered secondary to the Vedas
but are highly influential in shaping Hindu law. Smriti is considered a secondary source
of Hindu law, comprising texts written by ancient sages to codify and adapt the principles
of Sruti for practical application. Unlike Sruti, which is considered divine and eternal,
Smriti is human in origin and is therefore subject to change and interpretation.
Types of Smriti
Smriti includes various texts, which can be broadly categorized into:

I. Dharmasutras: The Foundations of Hindu Law

The Dharmasutras are among the earliest texts of Hindu law, forming a crucial
part of the Dharmashastra literature. These texts serve as a guide to dharma,
encompassing religious, social, and legal obligations. Written in the concise and
aphoristic style of sutras, they provide the foundational principles of Hindu law and
ethics, reflecting the social and cultural ethos of ancient India. The word Dharmasutra is
derived from "dharma" (duty or moral law) and "sutra" (thread or aphorism). These texts
are associated with the Vedic tradition and were composed between 600 BCE and 200
BCE. Unlike the Smritis, which are elaborate and expansive, the Dharmasutras are brief,
consisting of short statements meant for easy memorization and oral transmission.

9
Four principal Dharmasutras are attributed to specific Vedic schools:
 Apastamba Dharmasutra: Belonging to the Krishna Yajurveda, it emphasizes
ethical conduct and procedural fairness in law.
 Gautama Dharmasutra: The oldest among the Dharmasutras, associated with the
Sama Veda, it lays down rules for rituals, penance, and social duties.
 Baudhayana Dharmasutra: Also linked to the Krishna Yajurveda, it addresses
ceremonies, penances, and rules for the four stages of life (ashramas).
 Vasishtha Dharmasutra: Connected to the Rigveda, it focuses on penance and
atonement for sins.

 Structure and Content of Dharmasutras

The Dharmasutras cover a wide range of topics, including:
 Varna and Ashrama Dharma: Rules for individuals based on their caste (varna)
and stage of life (ashrama), such as studenthood (brahmacharya), householdership
(grihastha), retirement (vanaprastha), and renunciation (sannyasa).
 Rituals and Sacraments: Instructions on ceremonies like marriage, birth, death,
and sacrifices.
 Civil and Criminal Law: Guidelines for inheritance, property rights, and
punishment for crimes.
 Social Duties: Principles of social interaction, including hospitality, charity, and
duties towards family and society.
 Atonement and Penances: Rules for expiating sins through rituals or austerities.

 Importance of Dharmasutras in Hindu Law

 Foundation of Legal Tradition: The Dharmasutras form the earliest codification
of Hindu law, influencing later texts like the Smritis and commentaries.
 Moral and Ethical Guidance: They emphasize ethical living and righteous
behavior, forming the moral backbone of Hindu society.
 Adaptability: Though rooted in Vedic traditions, the Dharmasutras show an
awareness of local customs and practices, reflecting the diverse cultural milieu of
ancient India.

II. Dharmashastras:
Texts that lay down rules of dharma (moral and legal duties). The word
"Dharmashastra" is derived from dharma (righteousness or duty) and shastra (treatise

10
 or scripture). These texts are not directly divine but are considered inspired by Sruti
(the Vedas) and written by ancient sages to codify moral and legal principles for
society.
Key Dharmashastra Texts:
 Manusmriti: Often regarded as the most authoritative, it addresses diverse
topics such as marriage, inheritance, and punishment. The earliest and most
influential text, dealing with social, legal, and moral aspects. Often regarded as
the most influential, it addresses personal law, social norms, governance, and
morality.

 Yajnavalkya Smriti: Focuses on civil law and ethics. A refined and systematic
work focusing on civil, criminal, and procedural law. Known for its systematic
treatment of civil law, procedural law, and ethics.

 Narada Smriti: Deals extensively with legal procedures and property laws.
Primarily addresses judicial procedures and the law of debts. Focused on legal
procedures, contracts, and judicial practices.

 Parashara Smriti: Emphasizes moral laws for the Kali Yuga. Tailored for the
Kali Yuga, emphasizing practical morality and simplified rituals.

 The Dharmashastras address a wide range of topics, including:

i. Varna and Ashrama Dharma: Duties based on caste (varna) and stages of
life (ashrama—student, householder, hermit, renunciate).
ii. Rituals and Sacraments: Guidelines for rites like marriage, sacred thread
ceremony, and funerals.
iii. Civil and Criminal Law: Rules for property ownership, inheritance,
contracts, and punishments for offenses.
iv. Social Conduct: Norms for interpersonal relationships, hospitality, and
ethical behavior.
v. Judiciary: Instructions for judges, legal procedures, and evidence.

 Importance of Dharmashastra
i. Codification of Dharma: The texts codify the abstract principles of dharma
into actionable rules, making them accessible and applicable.

ii. Ethical and Legal Framework: They form the foundation of Hindu personal
law and societal order.

11
 iii. Adaptability: Despite their rigidity in certain aspects, the Dharmashastras
were periodically revised and interpreted to suit changing societal needs.

3. Commentaries and Digests

Commentaries and digests were crucial ancient sources that helped codify,
interpret, and systematize the vast body of rules, customs, and practices derived from
Shruti, Smriti, and customs. These texts played a vital role in shaping the development
and application of Hindu law across different periods and regions. Over time, scholars
interpreted and elaborated on the Smritis, leading to the creation of commentaries (known
as Bhashyas or Tikas) and digests (Nibandhas). These texts reconciled contradictions in
the Smritis and adapted laws to local customs and changing societal needs. To provide
clarity on ambiguous or conflicting provisions in the Smritis.

To adapt ancient laws to the social and cultural context of specific regions and
times.
Famous Commentaries:
i. Mitakshara by Vijnaneshwara: A commentary on the Yajnavalkya Smriti,
forming the basis of Hindu law across most of India. Governs Hindu law in
most parts of India, emphasizing joint family property.
ii. Dayabhaga by Jimutavahana: Focused on inheritance laws and followed
primarily in Bengal. Prevalent in Bengal, focusing on individual ownership
of property.
iii. Manubhashya: Commentaries on Manusmriti by various scholars.

Famous Digests:
i. Vyavahara Mayukha by Nilakantha: Focused on legal disputes and applied
extensively in Western India.
ii. Smriti Chandrika by Devanna Bhatta: A digest of legal principles
concerning inheritance and partition.
iii. Viramitrodaya by Mitra Misra: Covered a wide range of legal topics,
including inheritance and property law.

 Role and Influence

i. Regional Variations:

12
 Commentaries often adapted laws to regional practices, giving rise to schools like
Mitakshara (dominant in northern and southern India) and Dayabhaga (dominant in
Bengal and Assam).
Digests sought to harmonize these variations by consolidating principles from
multiple texts.

ii. Source of Personal Laws:

Commentaries and digests served as the foundation of personal laws in the Hindu
community, especially in areas like marriage, inheritance, and property.

iii. Transition to Modern Law:

British colonial courts heavily relied on these ancient sources when adjudicating
matters of Hindu personal law.
They formed the basis of codified Hindu laws, such as the Hindu Succession Act, 1956.

4. Customs (Achara)
Customs refer to practices followed by communities over generations. They were
an essential source of law in ancient Hindu society. Customs are a significant source of
Hindu law and have played a foundational role in its development. Hindu law evolved
over centuries, drawing heavily from social practices and traditions that were followed by
the community. These customs were often regarded as binding and held authority equal
to or even higher than written texts in certain contexts.
A custom is a habitual practice or tradition that is widely accepted within a
community and has acquired the force of law due to long and continuous usage. In the
context of Hindu law, customs are regarded as expressions of Dharma (righteous
conduct).

 Importance of Customs in Hindu Law

i. Ancient Recognition:
Custom (Achara) was considered the "root of Dharma" according to the Dharmashastra.
Manusmriti states:

13
"Achara is the highest Dharma."
Custom was given precedence in cases where Smriti texts (written codes) were silent or
unclear.

ii. Adaptation to Local Practices:

Customs allowed Hindu law to adapt to the social, cultural, and regional diversity of
India.
They ensured the relevance of law in different regions and communities.

iii. Judicial Recognition:

British colonial courts and modern Indian courts have upheld customs as a source of
Hindu law, provided they meet certain legal criteria.

 Types of Customs
Customs under Hindu law are broadly classified into three categories:
i. General Customs (Loka Achara):
These are practices followed universally by the Hindu community, such as the general
rules of inheritance or marriage. Practices observed by particular castes

ii. Local Customs (Deshachara):

Customs specific to a particular region, village, or locality. For example, inheritance laws
may differ between North and South India. Practices specific to a region or community

iii. Class/Family Customs (Kula Dharma or Kulachara):

Customs followed by a particular caste, sub-caste, family, or group. For instance, certain
castes may have unique marriage rituals or dietary restrictions. Traditions unique to
individual families.

 Essential Features of a Valid Custom

14
For a custom to be recognized as a source of Hindu law, it must meet the following
criteria:
1. Antiquity: The custom must be ancient and in existence for a long period, often
regarded as "immemorial."
2. Reasonableness: It must not be unreasonable, oppressive, or against principles of
justice and morality.
3. Continuity: The custom must have been practiced consistently without interruption.
4. Certainty: The custom must be well-defined and certain
5. Not Opposed to Statutory Law: A custom cannot override statutory provisions unless
expressly permitted.
6. Not Immoral or Illegal: Customs that are immoral, contrary to public policy, or illegal
are not recognized.

 Examples of Customs in Hindu Law

1. Marriage: Saptapadi (seven steps) as a part of Hindu marriage is a customary practice
widely recognized.
Child marriage was once a customary practice, though now prohibited by law.
2. Inheritance: The Mitakshara and Dayabhaga schools recognize differing customary
laws of inheritance and partition.
In certain communities, women were historically excluded from inheritance under
customary practices.
3. Adoption: Adoption practices under Hindu law were guided by customs, with rules on
who could adopt and who could be adopted.
4. Caste Rules: Practices related to dietary restrictions, marriage, and social conduct
within castes and sub-castes were often governed by custom.

 Judicial Recognition of Customs

1. In Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmana
The Privy Council upheld a local custom relating to the adoption of a married man,
contrary to general Hindu law.

15
2. In Collector of Madura v. Moottoo Ramalinga Sethupathi
The court recognized a family custom that permitted the exclusion of women from
inheritance.

 Customs and Modern Hindu Law

With the codification of Hindu personal laws (e.g., the Hindu Marriage Act, 1955,
and the Hindu Succession Act, 1956), the role of customs has been limited. However,
codified laws often incorporate existing customs and practices.

 Exceptions
 Codified laws allow for the application of customs in certain areas. For instance:
 The Hindu Marriage Act permits recognition of customary ceremonies in
marriage.
 The Hindu Succession Act allows customary rules in cases where specific laws are
silent

C. Modern Sources of Hindu Law

Modern sources of Hindu law have evolved from traditional sources to incorporate
various legislative, judicial, and societal developments. These sources ensure the legal
system is in sync with contemporary needs and values.

1. Equity, Justice, and Good Conscience

Equity, Justice, and Good Conscience as a Modern Source of Hindu Law plays a
crucial role in the interpretation and application of Hindu law in contemporary contexts.
These principles were introduced during the British era and continue to be a significant
part of the Indian legal system, particularly in cases where codified laws, precedents, or
customs are silent or inadequate.

 Definition
 Equity: Fairness and impartiality in applying legal principles.
 Justice: Delivering what is morally and legally right to parties involved in a
dispute.
 Good Conscience: Decisions based on ethical standards and moral reasoning.

16
  Historical Background
 British Era: During British rule, courts faced challenges due to vague or
outdated customary laws in Hindu law. They adopted the principles of equity,
justice, and good conscience to resolve disputes.
 Modern Context: After independence, these principles were retained and
incorporated into the legal framework, particularly for personal laws like
Hindu law.

 Case Laws
1. In Shah Bano Case
Though not strictly a Hindu law case, this landmark judgment underscored the judiciary’s
role in ensuring justice when personal laws fall short.
2. In Githa Hariharan vs. RBI
The Supreme Court reinterpreted traditional guardianship laws to promote gender
equality, prioritizing justice over strict adherence to tradition.
3. In Gurunath vs. Kamalbai
Supreme Court said that court have authority to divide cases based on the principle of
equity, Justice and good conscience.

2. Judicial Precedents
Judicial Precedents as a Modern Source of Hindu Law refer to the authoritative
decisions made by higher courts that serve as guiding principles for future cases. In the
context of Hindu law, judicial precedents play a crucial role in interpreting, evolving, and
applying the law to address contemporary issues.

 Definition of Judicial Precedents

Judicial precedent, also known as case law, means that the principles of law laid
down by higher courts (e.g., the Supreme Court or High Courts) are binding on lower
courts in similar cases. This doctrine, known as stare decisis, ensures consistency and
predictability in legal decisions.

17
  Role in Modern Hindu Law
a. Interpretation of Codified Laws: Courts interpret the provisions of codified
Hindu laws such as the Hindu Marriage Act, 1955, and Hindu Succession
Act, 1956, ensuring clarity and resolving ambiguities.
b. Filling Gaps in Law: When codified laws or customary rules are silent or
inadequate, courts provide guidance through their decisions, shaping the
evolution of Hindu law.
c. Reconciliation with Constitutional Principles: Judicial precedents help align
traditional Hindu law with constitutional values such as equality, justice,
and human rights.
d. Adaptation to Changing Societies: Courts use precedents to adapt Hindu
law to reflect evolving social norms and values, particularly in areas like
gender equality and family law.

 Judicial Decisions as Precedents in Hindu Law

1 In Vineeta Sharma v. Rakesh Sharma
The Supreme Court upheld the equal rights of daughters in coparcenary property under
the Hindu Succession (Amendment) Act, 2005, irrespective of whether the father was
alive on the amendment's commencement date.
2. In Saroj Rani v. Sudarshan Kumar Chadha
The court clarified the application of restitution of conjugal rights under the Hindu
Marriage Act.
3. In Navtej Singh Johar v. Union of India
Although not directly related to Hindu law, this case decriminalized homosexuality,
influencing the interpretation of personal laws, including Hindu marriage and family law.
4. In Githa Hariharan v. RBI
The Supreme Court interpreted the term "guardian" in a gender-neutral way, promoting
equality in parental rights.
5. In Danamma v. Amar
The court upheld the rights of daughters, even if born before the 2005 amendment, to
claim maintenance from ancestral property.
6. In Shayara Bano v. Union of India

18
Although focused on Muslim law, this case highlighted the judiciary's role in reforming
personal laws, which indirectly influences Hindu law.

3. Legislation
Legislation as a Modern Source of Hindu Law refers to the enactment of statutes
by the legislature that govern various aspects of Hindu personal laws. It has played a
pivotal role in reforming and codifying traditional Hindu law to align with the needs of a
modern society while addressing social inequalities and constitutional mandates.

 Meaning of Legislation
Legislation involves laws passed by the Indian Parliament or state legislatures. It
serves as the most authoritative and binding source of law in the modern legal system. In
the context of Hindu law, legislation has replaced many traditional practices and
principles with clear, codified statutes.

 Codification of Hindu Law

During the mid-20th century, several aspects of Hindu law were codified into
statutes to address inconsistencies, eliminate discriminatory practices, and ensure
uniformity. Key codified laws include:

1. The Hindu Marriage Act, 1955

Governs marriage, divorce, judicial separation, and restitution of conjugal rights among
Hindus. Recognizes monogamy and provides grounds for divorce, thus reforming
traditional practices.

2. The Hindu Succession Act, 1956 (Amended in 2005)

Regulates the inheritance of property among Hindus. The 2005 amendment granted
daughters equal rights in ancestral property, promoting gender equality.

3. The Hindu Adoptions and Maintenance Act, 1956

19
Codifies rules regarding adoption and maintenance obligations within Hindu families.
Provides equal rights to adoptive parents, ensuring the welfare of adopted children.

4. The Hindu Minority and Guardianship Act, 1956

Deals with guardianship of minors and their property. Prioritizes the welfare of the child
as the paramount consideration.

D. Conclusion
The sources of Hindu law, both traditional and modern, together form a dynamic
framework that has evolved over centuries. Traditional sources like Shruti, Smriti,
commentaries, and customs provide the historical and cultural foundation of Hindu law,
reflecting the ancient practices and moral values of Hindu society. However, the modern
sources—legislation, judicial precedents, equity, justice, and good conscience—have
played a pivotal role in adapting Hindu law to meet the needs of contemporary society.
Traditional Sources ensure continuity with the past, preserving the essence of Hindu
jurisprudence.
Modern Sources bring clarity, uniformity, and progressive reform, ensuring alignment
with constitutional principles like equality, secularism, and justice.
Together, these sources strike a balance between preserving India's cultural
heritage and addressing modern societal challenges. By incorporating progressive
legislation, judicial interpretation, and ethical principles, Hindu law has evolved into a
robust and flexible system that upholds fairness, justice, and relevance in an ever-
changing world. This harmonious blend of tradition and modernity ensures that Hindu
law remains a living, adaptable legal framework.

4) Schools of Hindu Law

Synopsis
a) Introduction
b) Mitakshara School of Hindu Law
c) Dayabhaga School of Hindu Law
d) Comparison between Mitakshara and Dayabhaga School of Hindu Law
e) Conclusion
20
 A. Introduction
The schools of Hindu law refer to different interpretations and applications of Hindu
legal principles derived from ancient texts and customs. They arose due to regional,
cultural, and philosophical differences in the understanding of these texts. The two
primary schools of Hindu law are the Mitakshara School and the Dayabhaga School, with
further sub-divisions within each.

B. Mitakshara School of Hindu Law

The Mitakshara School of Hindu law is one of the two primary schools that
interpret and apply the principles of Hindu jurisprudence, the other being the Dayabhaga
School. It derives its name from the commentary written by Vijnaneshwara on the
Yajnavalkya Smriti, a foundational text of Hindu law. This school is widely followed
across most parts of India and has played a significant role in shaping the legal
framework of Hindu personal laws.

 Historical Background
The Mitakshara School originated during the 12th century in southern India.
Vijnaneshwara, a renowned scholar, wrote his treatise, the Mitakshara, to clarify and
expand upon the principles in the Yajnavalkya Smriti. His commentary became widely
accepted for its logical interpretations and practical applicability. It provided a
comprehensive framework for understanding laws related to property, inheritance,
family, and obligations under Hindu law.

 Features of the Mitakshara School

a. Joint Family System: The Mitakshara School recognizes the concept of the
Hindu joint family, where property is held collectively by the members of a
family. The coparcenary system is a distinctive feature, where male members
of a family acquire a share in the ancestral property by birth.

b. Coparcenary Rights: Only male members of the family were originally

recognized as coparceners, meaning they had an inherent right to demand
partition of the family property. However, the Hindu Succession
(Amendment) Act, 2005, granted daughters equal coparcenary rights, thereby
ensuring gender equality in property ownership.
21
 c. Inheritance by Birth: In Mitakshara, sons acquire a right to their father’s
ancestral property by birth, even during the father’s lifetime. This differs
from the Dayabhaga School, where inheritance is based on the father’s death.

d. Partition of Property: Partition can occur at any time during the lifetime of
the head of the family. Upon partition, each coparcener receives an equal
share of the ancestral property.

e. Limited Rights of Women:Under the traditional Mitakshara system, women

had restricted rights to property and were not included in the coparcenary.
They could only receive property through maintenance, gifts, or as heirs to
self-acquired property.

 Geographical Scope
The Mitakshara School is followed in most parts of India, except in Bengal and Assam. It
is further divided into sub-schools based on regional variations, including:
 Banaras School: Prevalent in northern India (Uttar Pradesh and Bihar).
 Mithila School: Followed in parts of Bihar and Nepal.
 Maharashtra School: Dominant in Maharashtra and Gujarat.
 Dravida School: Followed in Tamil Nadu and parts of southern India.

 Advantages of the Mitakshara School

1. Continuity of Family Property: The joint family system ensures that property remains
intact across generations, fostering economic stability.
2. Clarity in Inheritance: By granting inheritance rights by birth, the Mitakshara system
provides a clear and predictable framework for property distribution.
3. Adaptability: The flexibility of the Mitakshara School has allowed it to evolve over
time, incorporating modern principles like gender equality through statutory reforms.

 Criticism of the Mitakshara School

1. Gender Inequality: Historically, the exclusion of women from coparcenary rights was a
significant drawback. The 2005 amendment addressed this by granting daughters equal
rights in ancestral property.

22
2. Complexity in Partition: The joint family system and coparcenary rights often led to
disputes and complications in partitioning property.
3. Inefficiency: The system’s rigid structure sometimes prevented individuals from fully
utilizing family resources for personal development or investment.

 Impact of Modern Reforms

The Hindu Succession Act, 1956, and its 2005 amendment, significantly altered the
traditional Mitakshara framework. Key changes include:
1. Equal Rights for Women: Daughters were recognized as coparceners, ensuring parity
with sons in inheritance rights.
2. Simplified Succession Laws: The Act codified inheritance laws, reducing reliance on
ancient texts and commentaries. These reforms have modernized the Mitakshara School,
making it more inclusive and equitable.

C. Dayabhaga School of Hindu Law

The Dayabhaga School of Hindu law is one of the two major schools of Hindu
jurisprudence. It is primarily followed in Bengal and Assam and offers a distinct
approach to the principles of inheritance, property rights, and family law. The Dayabhaga
School prioritizes individual ownership and the performance of religious duties as the
basis for succession.

 Historical Background
The Dayabhaga School is based on the treatise Dayabhaga, written by the scholar
Jimutavahana in the 12th century. It was developed to address disputes arising from the
diverse customs and practices in Bengal, aiming to provide a more uniform and rational
interpretation of Hindu law. The Dayabhaga system places significant emphasis on the
religious duties of heirs, particularly the obligation to perform funeral rites, as a
determinant of inheritance rights.

 Features of the Dayabhaga School

23
1. Inheritance by Performance of Religious Rites: Inheritance under the Dayabhaga
School is based on the ability of the heir to perform the deceased ancestor's Shraddha
(funeral rites). This principle highlights the importance of religious duties in Hindu
society.
2. No Right by Birth: Heirs in the Dayabhaga system do not acquire property rights by
birth. Property remains the absolute possession of the owner until their death, and
inheritance occurs only thereafter.
3. Partition after Death: Partition of property is not possible during the owner’s lifetime.
It can only take place after their death.
4. Stronger Rights for Women: The Dayabhaga School grants women relatively stronger
property rights compared to the Mitakshara School. Widows, for instance, can inherit
property from their husbands and have control over it during their lifetime.
5. Individual Ownership: The concept of coparcenary (joint family ownership) does not
exist in the Dayabhaga system. Property is owned individually and inherited upon the
owner's death.

 Geographical Scope
The Dayabhaga School is followed primarily in Bengal and Assam. It reflects the
unique socio-cultural and economic conditions of these regions, emphasizing individual
autonomy and simplified inheritance laws.

 Advantages of the Dayabhaga School

1. Simplified Inheritance: By eliminating birthright and joint ownership, the Dayabhaga
system provides clarity and reduces disputes over property.
2. Respect for Individual Autonomy: Property owners have complete control over their
assets during their lifetime.
3. Improved Status of Women: Women have stronger inheritance rights, including the
ability to own and control property, which promotes gender equity.
4. Emphasis on Religious Duties: The system reinforces the cultural and religious
significance of performing ancestral rites.

 Significance of the Dayabhaga School

24
1. Adaptability: The Dayabhaga system reflects the socio-cultural context of Bengal and
Assam, emphasizing practicality and individual rights.
2. Progressive Approach: By granting stronger rights to women and prioritizing
individual ownership, the Dayabhaga School demonstrates a progressive approach to
inheritance and property laws.
3. Relevance in Modern Law: Although codified laws now govern Hindu succession, the
principles of the Dayabhaga School continue to influence judicial decisions and
interpretations in Bengal and Assam.

 Criticism of the Dayabhaga School

1. Overemphasis on Religious Rites: Linking inheritance to the performance of funeral
rites can marginalize individuals who cannot fulfill these duties due to personal or
practical reasons.
2. Delayed Partition: The prohibition on partition during the property owner's lifetime
may create financial challenges for family members who depend on the property.
3. Neglect of Joint Family Concept: The system's focus on individual ownership
disregards the traditional Hindu joint family structure, which promotes collective welfare.
 Modern Relevance of Dayabhaga School
The Hindu Succession Act, 1956, and subsequent amendments have reduced the
differences between the Dayabhaga and Mitakshara schools.
Developments include:
1. Uniform Succession Laws: The Act introduced uniform principles of inheritance for
Hindus across India, diminishing the regional variations between the two schools.
2. Gender Equality: The 2005 amendment granted daughters equal rights in ancestral
property, strengthening their legal position under both schools.
3. Increased Individual Autonomy: The Dayabhaga School’s emphasis on individual
ownership aligns with modern principles of property law and personal autonomy.

D. Comparison between Mitakshara and Dayabhaga School of Hindu Law

The Mitakshara and Dayabhaga are the two primary schools of Hindu law that deal
with inheritance, property rights, and family law in India. Both schools have their roots in

25
ancient Hindu law, but they differ significantly in their principles, interpretation, and
practices.

Mitakshara Dayabhaga

Origin and Developmen Originates from the Originates from the

Yajnavalkya Smriti and is commentaries of
based on the commentaries Jimutavahana on the Manu
of Vijnaneswara. Smriti.

It is the more widely It is primarily followed in

followed school in India, Bengal and some parts of
especially in Northern, Assam.
Western, and Southern India.

Inheritance and Property Property is inherited by the Dayabhaga recognizes

Rights coparceners (male members) individual ownership rather
in the family, and the than joint family ownership.
property is held as a joint A person has full rights over
family property. his property and can dispose
of it at will.
A coparcener has an
automatic right by birth in The property is divided only
the family property, meaning after the death of the owner
that a son or daughter born (not by birthright like in
into the family is entitled to Mitakshara).
share in the ancestral
property. It emphasizes a testamentary
will and the right of
The right to partition exists, inheritance by the heirs.
and the property can be
divided into shares among No right to partition before
coparceners. the death of the owner.

Ancestral property remains Inheritance occurs by will or

undivided unless there is a intestate succession, and
partition, and even after daughters do not
partition, the coparceners automatically inherit
continue to have rights in the ancestral property unless
property specified.

26
 Rights of Women Women do not have equal Women, especially daughters
inheritance rights in and wives, have equal
ancestral property. The inheritance rights in the
coparcenary right is property. They inherit as
exclusive to male members. Class I heirs along with sons
and sons of sons.
Women may inherit property
through the Stridhan The system gives greater
(property given to women by property rights to women as
birth or marriage), but not compared to Mitakshara.
ancestral property unless
they are widows or
daughters.

Partition of Property Partition can happen at any There is no right to partition

time, and property can be during the lifetime of the
divided by the coparceners. owner. The property is
divided only after his death,
Even if there is a partial according to the will or the
partition, coparceners rules of inheritance.
continue to have a claim in
the undivided property.

Position of Adopted Sons Adopted sons are considered In Dayabhaga, adopted sons
coparceners, and they have a do not inherit property in the
right by birth in the ancestral same way, as there is no
property. concept of coparcenary. They
inherit based on the
inheritance rules as per the
will or intestate succession.

Succession Succession is governed by Inheritance follows the rules

lineal descent and the male of intestate succession, where
heirs are generally the property is divided
prioritized. The son, among the legal heirs after
grandson, and great- the owner’s death. The male
grandson inherit in members do not
succession. automatically have
precedence.
The concept of self-acquired
property allows individuals Daughters and wives have
to dispose of it as they wish. rights equal to sons in the
property.
27
 Jurisdictions Predominantly followed in Primarily followed in Bengal
most of India, including and parts of Assam.
Uttar Pradesh, Maharashtra,
Tamil Nadu, Karnataka, and
Andhra Pradesh.

E. Conclusion
The schools of Hindu law illustrate the diversity and regional variations in the
interpretation of ancient legal texts. While these schools provided a foundation for
traditional Hindu law, modern statutory reforms have unified many of their differences,
ensuring greater equity and uniformity in personal laws across India.

5. Application of Hindu Law

Synopsis
a) Introduction
b) Concept of Hindu
c) Legal Definition of a Hindu
d) The Application of Hindu Law
e) Conclusion

A. Introduction
Hinduism, one of the oldest religions in the world, is characterized by a diverse set
of beliefs, practices, and philosophies. It has influenced the cultural, social, and legal
fabric of India for thousands of years. In the context of Indian law, the term "Hindu" has
a specific legal meaning, which is defined by statutes and judicial interpretation. The
application of Hindu law has evolved significantly, transitioning from religious customs
to codified statutes that address personal matters such as marriage, divorce, inheritance,
and adoption. This essay explores who is considered a Hindu under Indian law and the
various aspects of the application of Hindu law.

B. Concept of Hindu

28
 The question of "who is a Hindu" has been a subject of significant legal and
societal debate. Under Indian law, Hinduism is not just a religion but also a set of
customs and practices that are applied to people who follow various religious traditions
within the broader spectrum of Hindu culture.

C. Legal Definition of a Hindu

The term "Hindu" is defined primarily by the Hindu Marriage Act of 1955 and the
Hindu Succession Act of 1956. According to these laws, a Hindu includes anyone who:
1. Follows Hinduism: This includes adherents of the Hindu religion, including those who
follow Sanatan Dharma, the Vedic religion, or any other form of indigenous Hindu belief
systems.
2. Follows Jainism, Buddhism, or Sikhism: These religions originated in India and share
many cultural and philosophical similarities with Hinduism. According to Section 2 of
the Hindu Marriage Act, Sikhs, Jains, and Buddhists are considered Hindus for the
purposes of the law.
3. Any person not a Muslim, Christian, Jew, or Parsi: This exclusion is based on the fact
that these communities are governed by their own personal laws in India. If a person does
not belong to these religious communities, they are considered Hindu under the legal
framework, irrespective of their personal beliefs.
4. Legal Adoption of Hindu Religion: A person who voluntarily adopts the Hindu
religion is also recognized as a Hindu. This is particularly relevant for legal matters
concerning inheritance, marriage, and maintenance.
In essence, the term "Hindu" under Indian law includes a wide range of people,
extending beyond those who are born into Hindu families to also include converts and
adherents of related faiths such as Sikhism, Jainism, and Buddhism.

D. The Application of Hindu Law

Hindu law governs various personal matters concerning Hindus (and those
categorized as Hindus for legal purposes), including marriage, divorce, inheritance,
adoption, and maintenance. Over time, Hindu law has transitioned from being largely
based on religious customs to being codified into statutes and legal principles. The law’s
application is extensive and covers numerous aspects of family life and personal conduct.

29
1. Marriage and Divorce
The Hindu Marriage Act of 1955 is the cornerstone of the legal framework governing
Hindu marriages. The Act defines marriage as a sacred union, and the laws surrounding
marriage are based on sanctity and permanence.
Marriage: The Hindu Marriage Act provides for the solemnization of marriages between
Hindus, establishes rules for consent, and defines the conditions for a valid marriage,
such as the minimum age for marriage (18 for women and 21 for men) and the
prohibition of bigamy.
Divorce: Divorce, though traditionally discouraged in Hinduism, is legally allowed under
the Hindu Marriage Act on various grounds, including adultery, cruelty, desertion, and
mutual consent. The law provides for judicial separation and divorce and offers
provisions for the maintenance of spouses after divorce.

2. Inheritance and Succession

The Hindu Succession Act of 1956 regulates inheritance among Hindus, focusing on the
distribution of property upon a person’s death. The Act deals with testate and intestate
succession (i.e., with or without a will) and provides a detailed mechanism for the
division of assets among the heirs.
Ancestral Property: Under the Mitakshara school of Hindu law, which applies to most
parts of India, ancestral property is held by the family as a joint family property. The
male members of the family, known as coparceners, have a birthright to share in the
property. This right extends to the son, grandson, and great-grandson.
Inheritance Rights of Women: Traditionally, women had limited inheritance rights,
especially regarding ancestral property. However, with the Hindu Succession
(Amendment) Act, 2005, daughters were granted equal rights as sons in ancestral
property under the Mitakshara system, aligning with constitutional principles of gender
equality.
Intestate Succession: In the absence of a will, the property is distributed among the legal
heirs, which include sons, daughters, wives, and other relatives. The Act outlines a clear
order of succession for both self-acquired and ancestral property.

3. Adoption and Maintenance

30
The Hindu Adoption and Maintenance Act of 1956 provides a legal framework for the
adoption of children and the maintenance of spouses and dependents.
Adoption: The Act allows Hindus to adopt children, and the adopted child is treated as
the natural child of the adoptive parents, having full rights to inheritance. However, there
are certain conditions, such as the requirement that the adopting parent must be of sound
mind and the adoption should not disrupt the social fabric.
Maintenance: The Act also provides for the maintenance of a wife, children, and even
dependent parents. If a person refuses to maintain their family members, they can
approach the court for support.

4. Guardianship
Under the Guardianship and Wards Act, 1890, a Hindu parent (traditionally the father) is
considered the natural guardian of minor children. However, in cases of dispute or where
the welfare of the child is at stake, the court has the power to award guardianship to either
parent, giving paramount importance to the best interests of the child.

5. Judicial Application of Hindu Law

The application of Hindu law is largely through the judiciary in India, which interprets
statutes like the Hindu Marriage Act, Hindu Succession Act, and others, considering the
principles of justice, equity, and good conscience. Courts have played an important role
in modernizing Hindu law, ensuring that it aligns with the evolving values of gender
equality, individual rights, and social justice.
For instance, the landmark ruling in Shah Bano’s case highlighted the need for the courts
to provide maintenance to divorced women under Hindu law, which led to significant
debates and legislative reforms. Similarly, the 2005 amendment to the Hindu Succession
Act granted equal property rights to daughters, reflecting societal changes in gender roles.

E. Conclusion
The question of who is a Hindu is not just a religious matter but also a legal issue, and it
extends to individuals who follow Hinduism or related belief systems, as defined under
Indian law. The application of Hindu law in modern India reflects both ancient traditions
and contemporary legal principles. Through codified laws and judicial interpretation,
Hindu law continues to evolve to address issues such as gender equality, property rights,
and family welfare. Although there are still challenges in fully implementing these laws,

31
especially in rural areas, the legal framework provides a strong foundation for ensuring
that the principles of justice and equality are upheld for Hindus across the country.

32