FAMILY LAW – 2

1. Sources of Hindu Law

I. Ancient Sources
Under this would come the following:
 Shruti
 Smriti
 Digests and Commentaries and
 Custom.
II. Modern Sources
Under this head would come
 Justice, equity and good conscience
 Precedent, and
 Legislation.
Ancient Sources
Ancient Texts: Vedas, Smritis, and Dharmashastras
The ancient texts of Hinduism form the primary source of Hindu law in India. These texts are
revered as sacred scriptures and contain philosophical, ethical, and moral principles that
guide the conduct of Hindus. The three main types of ancient texts that are considered as
sources of Hindu law are:
Vedas (Shrutis): The Vedas are the oldest and most sacred texts of Hinduism. They are
believed to be of divine origin and are considered as the foundation of Hindu law. The Vedas
are divided into four main texts: Rigveda, Yajurveda, Samaveda, and Atharvaveda.
They contain hymns, rituals, and prayers, and provide guidance on religious, social, and
moral duties of individuals.
Smritis: Smritis are the secondary scriptures of Hinduism that expound on the principles laid
down in the Vedas. They are written by sages and scholars and provide detailed instructions
on personal and social conduct.
The most famous Smritis are Manusmriti, Yajnavalkya Smriti, and Narada Smriti, which are
considered as important sources of Hindu law. These texts cover a wide range of topics,
including marriage, inheritance, property rights, and religious practices.
Dharmashastras: Dharmashastras are treatises on dharma, which is the moral and ethical
law governing the conduct of individuals.
They provide guidelines on social and moral duties, and are considered as important sources
of Hindu law. Some of the well-known Dharmashastras include Manavadharmashastra,
Parasharasmriti, and Brihaspatismriti.
Customs: Local and Regional Practices
Customs are an important source of Hindu law, as they reflect the social, cultural, and
religious practices followed by Hindus in different regions of India. Customary law is based
on long-established practices that have been recognized and followed by the community for a
considerable period of time. Customary law is recognized as a valid source of Hindu law and
is applied in cases where there is no specific provision in the scriptures or legislation.
Customs vary from region to region in India, and they are influenced by factors such as
geography, climate, caste, and religious beliefs. For example, the customs followed in a rural
village in North India may differ from those followed in a cosmopolitan city in South India.
Some of the common customs that are recognised as sources of Hindu law include customs
related to marriage, succession, adoption, and religious practices.
Modern Sources
Justice, Equity and Good Conscience
Another significant source of Hindu law in India is the principle of justice, equity, and good
conscience. This principle is based on the concept of natural justice and is often invoked by
courts in cases where there is no specific provision in the ancient texts, customs, or statutory
laws to address a particular issue.
The principle of justice, equity, and good conscience allows courts to exercise their discretion
and interpret and apply Hindu law in a fair and just manner, taking into account the facts and
circumstances of each case. This principle is particularly relevant in cases where existing
laws may not adequately address modern social, economic, or cultural changes.
For example, in cases where there is no clear guidance on matters such as maintenance for
divorced wives, property rights of illegitimate children, or the adoption of a child born out of
wedlock, courts have relied on the principle of justice, equity, and good conscience to arrive
at decisions that are fair and just.
It is important to note that the principle of justice, equity, and good conscience is not a
standalone source of Hindu law, but rather a guiding principle that complements and
supplements the other sources mentioned earlier. It is often used as a fallback option when
other sources are silent or inadequate in addressing a particular legal issue.
Judicial Precedents: Case Laws and Judicial Interpretation
Judicial precedents, also known as case laws, are another important source of Hindu law in
India. Judicial precedents are the decisions of courts in cases involving Hindu law, which are
considered as authoritative interpretations of the law. The decisions of higher courts, such as
the Supreme Court of India, have a binding effect on lower courts, and they are considered as
precedents that are to be followed in similar cases. Judicial precedents play a significant role
in the development and evolution of Hindu law, as they provide interpretations and
clarifications on legal principles and practices.
Over the years, the Indian judiciary has delivered numerous landmark judgments on various
aspects of Hindu law, including marriage, divorce, property rights, inheritance, adoption, and
religious practices.
These judgments are considered as important sources of Hindu law and have shaped the legal
framework for Hindus in India.
For example, the Supreme Court of India clarified the rights of a Hindu woman as a
coparcener in a joint Hindu family property.
Another example can be, in the case of Mohd. Ahmed Khan v. Shah Bano Begum the court
established the rights of Muslim women to maintain under Hindu law.
Judicial precedents are based on legal principles, statutes, and customs, and they provide
guidance on the interpretation and application of Hindu law in contemporary times. They
help in filling the gaps in the legal framework and adapting the law to changing societal
needs and values. Judicial precedents are cited and relied upon by courts in subsequent cases
to ensure consistency and uniformity in the application of Hindu law.
Legislative Enactments: Statutory Laws
Legislative enactments, or statutory laws, are another important source of Hindu law in India.
The Indian Parliament and state legislatures have enacted various laws that govern different
aspects of Hindu personal law. These laws are based on constitutional principles, social
policies, and contemporary needs, and they provide a comprehensive legal framework for
Hindus in India.
Some of the important statutory laws that are sources of Hindu law include:
 Hindu Marriage Act, 1955: The Hindu Marriage Act is a central legislation that
governs the solemnisation, registration, and dissolution of marriages among Hindus,
Buddhists, Jains, and Sikhs. It provides for the conditions for a valid Hindu marriage,
the rights and duties of spouses, and the grounds for divorce and judicial separation.
 The Act also deals with issues such as maintenance, custody of children, and property
rights of married couples.
 Hindu Succession Act, 1956: The Hindu Succession Act is a central legislation that
governs the inheritance and succession of property among Hindus, Buddhists, Jains,
and Sikhs. It provides for the rules of intestate succession, i.e., succession in case of
death without a valid will, and testamentary succession, i.e., succession based on a
valid will. The Act also provides for the rights of female heirs, coparcenary rights,
and rules related to joint family property.
 Hindu Minority and Guardianship Act, 1956: The Hindu Minority and
Guardianship Act is a central legislation that deals with the minority and guardianship
of Hindu minors. It provides for the rights and liabilities of minors, the appointment
and powers of guardians, and the duties and responsibilities of guardians towards the
minors’ welfare and property.
 Hindu Adoption and Maintenance Act, 1956: The Hindu Adoption and
Maintenance Act is a central legislation that governs the adoption and maintenance of
Hindus. It provides for the rules and procedures for adoption, the rights and duties of
adopted children and adoptive parents, and the maintenance rights of Hindu women,
children, and aged parents.
 Customary Laws: In certain regions of India, Hindus also follow customary laws
that have been codified and recognized by local legislation. For example, in some
states like Goa, the Goa Family Law, which is based on Portuguese civil law, applies
to Hindus for matters related to marriage, divorce, inheritance, and succession.
Conclusion
The sources of Hindu law in India are ancient texts, customs, judicial precedents, and
legislative enactments. These sources provide the foundation for the legal framework that
governs various aspects of Hindu personal law, and their interplay continues to shape and
evolve Hindu law in contemporary times.

2. Schools of Hindu Law

Introduction
 The author Mr. Colebrooke coined the term "Schools of Law" to refer to different
legal opinions prevalent in various parts of India.
o School means rules and principles of Hindu Law which are divided into
opinion and are not codified.
 He noticed that the rules of Hindu Law vary from place to place and lack uniformity.
 For the purpose of identifying this variance, the thesis of the School of Hindu Law
has been propounded.

Emergence of Schools of Hindu Law

 Originally, there were no schools of Hindu jurisprudence. Due to the emergence of
various commentaries on Shruti and Smriti, different schools of thought arose.
o Shruti means which has been heard. The shrutis include the four Vedas -
Rig, Yajur, Sam, and Athrava along with their brahmanas. Vedas primarily
contain theories about sacrifices, rituals, and customs.
o Smriti means what is remembered. It includes those works which
are created by the virtue of memory of sages and are further divided
into Dharmashastras and Dharmasutras.
  The commentary in one part of the country varied from the commentary in the other
parts of the country.
 In Rutcheputty v. Rajendra (1839), the privy council observed that different schools
of Hindu law have originated because of different local customs prevailing in
different parts of India.

Existence of Schools of Hindu Law

 In the codified area of Hindu Law, there is no scope for existence of Schools as the
codified Hindu Law lays down uniform law for all Hindus.
 The Schools of Hindu Law have relevance only in respect of the uncodified areas
of Hindu Law.

Schools of Hindu Law

There are two main schools of Hindu Law:
 Mitakshara School
 Dayabhaga School
Mitakshara School
 The Yagnavalkya Smriti was commented on by Vijnaneshwara under the title
Mitakshara.
 The followers of Mitakshara are grouped together under the Mitakshara School.
 The Mitakshara is not only a commentary on the Smriti of Yajnavalkya but it is also
a digest of practically all the leading Smritis of Hindu Law.
 The provisions of this School are applicable throughout India except in the State of
Bengal and Assam.
Features of Mitakshara School
 Mitakshara School is based on the principle of the joint family system where
ancestral property is passed on from generation to generation, and each member of the
family has a right to a share in the property.
 It also recognizes the concept of survivorship, where the share of a deceased
coparcener automatically passes on to the surviving coparceners.
 One of the unique features of Mitakshara School is that the coparcener male
child (four generations from a common ancestor) acquires right in family property
by mere birth.
 A woman could never become a coparcener. But the Hindu Succession
(Amendment) Act, 2005 empowered women to become a coparcener like a male in
ancestral property.
Sub – Schools Under the Mitakshara School
 There are four Sub-Schools under the Mitakshara School which are as follows:
o Madras School or Dravidian School of thought
o Maharashtra School or Bombay School of thought
o Benaras School of thought
o Mithila School of thought
Madras School or Dravidian School of Thought
 It exists in South India.
 The main authority accepted by this school is Smriti Chandrika authored by
Devananda Bhatta.
 In the case of adoption by a widow it has a peculiar custom that the consent of the
sapindas was necessary for a valid adoption.
 o Two individuals are considered sapindas of each other if they have a common
ancestor within the preceding three generations.
o In other words, if they share a common bloodline within three generations,
they are considered sapindas.
Maharashtra School or Bombay School of Thought
 It exists in Bombay (Mumbai) and Gujarat.
 The main authority accepted by this school is Vyavahra Mayukha authored by
Nilakantha.
 This school has got an entire work of religious and Civil laws.
Benaras School of Thought
 It extends of whole of northern India except in Punjab where its authority is
modified by customary law in rural areas.
 The main authority accepted by this school is Viramitrodaya authored by Mitra
Mishra.
Mithila School of Thought
 It exists in Tirhut, North Bihar and Uttar Pradesh near the Yamuna River areas.
 The main authority accepted by this school is Vivad Chintamani authored by
Vachaspati Mishra and Vivad Ratnakara authored by Chandeshwar Thakur.
Dayabhaga School
 The Yagnavalkya Smriti and some other Smritis are commented on by Jimutavahana
under the title Dayabhaga.
 It exists in Bengal and Assam only.
 It has no sub-school.
Features of Dayabhaga School
 Sapinda relation is by pinda offerings.
 The right to Hindu joint family property is not by birth but only on the death of the
father.
 The system of devolution of property is by inheritance. The legal heirs (sons)
have definite shares after the death of the father.
 Each brother has ownership over a definite fraction of the joint family
property and so can transfer his share.
 On the death of the husband the widow becomes a coparcener with other brothers of
the husband. She can enforce partition of her share.

Difference between Mitakshara and Dayabhaga School

Mitakshara School Dayabhaga school

 Under this school the right to

 Under this school the right to ancestral
ancestral property is only given after the
property arises by birth.
death of the last owner.
 The son becomes the co-owner of the
 It does not recognise the birth right of any
property sharing similar rights as of fathers.
individual over ancestral property.

 The father has the absolute right of

 The father does not possess the absolute alienation of the ancestral property as he is
right to alienate the property. the sole owner of that property during his
lifetime.
 The son attains the right to become the co-  The son has no right to ask for the
 owner of the property and he can ask for
the partition of the ancestral partition of ancestral propertyagainst his
property even against the father and can father.
demand for his share.
 Under this school the survivorship rule is
 While in case of Dayabhaga school the
prevalent. In case of the death of any
interest of the member on their deathshall
member in the joint family, his interest
pass on to their heirs like widow, son,
shall pass to other members of the
daughters.
family.
 The members of the family enjoy the
 The members can’t dispose of their share
absolute right to dispose of their
of property.
property.
 The rule of blood relationship or
 Inheritance is governed by the rule of the
consanguinity is followed in case of
offering of pinda.
inheritance.

3. Types of families

On the basis of marriage:

Polygamous families may be described as families in which either spouse is allowed to have
more than one spouse simultaneously. Monogamous families are those families in which the
marriage is limited to one spouse.
On the basis of residence:

 Patrilocal family: The family in which after marriage wife comes to reside in
the family of her husband is known as patrilocal family. The patrilocal family is
also patriarchal and patrilineal in
 Matrilocal family: The family in which after marriage husband comes to
reside in the family of her wife is known as matrilocal family. It is just opposite
of patrilocal family. This type of family is also Matriarchal and Matrilineal in
 Bilocal family: In this type of family after marriage the married couple change
their residence alternatively. Sometimes wife joins in her husband’s house
while at some other times husband resides in wife’s house. That is why this
type of family is also known as family of changing
 Neolocal family: After marriage when newly married couple establish a new
family independent of their parents and settled at a new place this type of
family is known as neo- local.

On the basis of size and structure:

 Nuclear Family: A nuclear family is a family which consists of husband, wife

and their unmarried children. The size of nuclear family is very small. It is an
autonomous unit. There is no control of the elders because newlyweds crate a
 separate residence for themselves which is independent of elders. It is also
known as primary
 Joint or Extended Family: It includes members of three to four generations. It
is an extension of parent child This family is based on close blood ties. It is like
the joint family of Hindu Society.

The eldest male member is the head of the family. It is characterized by common residence,
common kitchen, and commensality, sharing of property, performance of ritual bonds,
reciprocal obligations and sentiments.
Extended family consists of father, mother, their sons and their wife, unmarried daughters,
grandchildren, grandfather, grandmother, uncles, aunts, their children and so on. This type of
family found to exist in rural community or agrarian economy

On the basis of Authority:

 Patriarchal Family: The family in which all the power remains in the hands of
patriarch or father is known as patriarchal family. In other words in this type of
family power or authority is vested in the hands of eldest male member of the
family who is supposed to be the father. He exercises absolute power or
authority over the other members of family. He owns family

After his death authority transferred to the eldest son of family. In this family descent is
known through father line. In this type of family wife after marriage come to reside in his
husband’s house. Joint family system among the Hindus is a fine example of patriarchal
family.

 Matriarchal family: This type of family is just opposite of patriarchal family.

In this family power or authority rests on the eldest female member of the
family especially the wife or mother. She enjoy absolute power or authority
over other members of the family. She owns all the family property. In this
family descent is known through the mother. Headship is transferred from
mother to the eldest daughter. Husband remain subordinate to his wife in a
matriarchal This type of family is found among the Nayars of Kerala and
among the Garo and Khasi tribes of Assam.

Family on the basis of descent:

  Patrilineal family: The family in which descent or ancestry is determined
through father line and continues through father it is known as patrilineal The
property and family name is also inherited through father line. The patrilineal
family is also patrilocal and patriarchal in nature.
 Matrilineal family: Matrilineal family is just opposite of the patrilineal The
family in which descent is determined through mother line or continues through
mother it is known as Matrilineal family. The property and family name is also
inherited through mother line. This right transferred from mother to daughter. A
woman is the ancestor of family. The Matrilineal family is Matrilocal and
Matriarchal in nature. This type of family found among the Nayars of Kerala
and among tribals like Garos and Khasis.

4. Essential Ingredients of Valid Hindu Marriage

The Hindu Marriage Act, 1955, outlines the conditions that must be met for a marriage to be
considered valid under Hindu law. These conditions are designed to ensure that both parties
enter into the marriage willingly and with full legal capacity and that the union is conducted
in accordance with traditional Hindu customs and practices. Below are the key essentials for
a valid Hindu marriage as stipulated by the Act.
1. Both Parties Must Be Hindus
2. Soundness of Mind and Legal Consent
3. Monogamy
4. Age Requirements
5. Prohibition of Sapinda Relationships
6. Prohibited Degrees of Relationship
7. Solemnisation of Marriage According to Customary Rites
8. Conclusion
Both Parties Must Be Hindus
Section 5 of the Hindu Marriage Act, 1955, specifies that for a marriage to be lawful, both
parties must be Hindus. This means that if either party is not a Hindu, the marriage will not
be recognised under the Act. In the case of Yamunabai Anant Rao Adhav v. Anant Rao
Shivaram Adhav (1988), it was clarified that Section 5 permits marriages to be performed
only between two Hindus. Therefore, if one party is a Christian, Muslim or of any other
religion, the marriage will not be considered valid under the Hindu Marriage Act.
Soundness of Mind and Legal Consent
According to Section 5(ii)(a) of the Act, both parties must be capable of giving legally
binding consent. This means they should not suffer from unsoundness of mind, mental
disorder or insanity. If either party is incapable of giving consent due to mental incapacity,
the marriage can be declared null and void at the discretion of the other party in Hindu Law.
Section 5(ii)(b) further states that even if a party is capable of giving legal consent, the
marriage can still be dissolved if one of the parties has a mental condition that makes them
unfit for marriage and for having children. InAlka Sharma v. Chandra Sharma (1991), the
court nullified the marriage because the woman exhibited extreme anxiety and irrational
behaviour, which made her unfit for marital life.
Section 5(ii)(c) adds that if one partner has experienced repeated episodes of insanity, the
other party may choose to annul the marriage. The Marriage Laws (Amendment) Act, 1999,
removed the term “epilepsy” from this clause, meaning that epilepsy is no longer a ground for
annulment.
Monogamy
Section 5(i) of the Hindu Marriage Act, 1955, stipulates that neither party should have a
living spouse at the time of the marriage. If either party has a living spouse, the marriage is
considered null and void. This provision aims to ensure monogamy. A second marriage is
only permissible after the first marriage has ended by death or divorce.
Section 17 of the Act, which deals with the penalties for bigamy, states that a marriage will
be void if either party was already married at the time of the union. Offenders may face
prosecution and punishment under Sections 494 and 495 of the Indian Penal Code, 1860.

Age Requirements
Section 5(iii) of the Act mandates that the bride must be at least 18 years old and the groom
must be at least 21 years old at the time of the marriage. Marriages that contravene these age
requirements are neither null nor voidable, but solemnising such a marriage can lead to
prosecution under Section 18 of the Act, which prescribes a penalty of up to two years in jail,
a fine of up to one lakh rupees or both.
In P. Venkataramana v. State (1977), it was ruled that a marriage in contravention of the
age requirements is neither void nor voidable. However, the violation is punishable under
Section 18.
Prohibition of Sapinda Relationships
Section 5(v) of the Act prohibits marriages between people who are related as Sapindas. A
Sapinda relationship is defined in Section 3(f) as extending up to the third generation in the
line of descent through the mother and the fifth generation in the line of descent through the
father. A marriage within these degrees of relationship is considered void unless there is a
valid custom or usage that permits such a marriage.
Under Section 18, violating the prohibition on Sapinda relationships can result in simple
imprisonment for a month and a fine of Rs. 1,000. Customary practices that allow such
marriages must be certain, reasonable and not against public policy.
Prohibited Degrees of Relationship
Section 5(iv) of the Act states that parties should not be within the degrees of prohibited
relationships unless their customs allow it. Section 3(g) specifies that two people are in a
prohibited relationship if one is the other’s lineal ascendant or if they have certain other close
familial connections. Marriages within these degrees are void unless a valid custom or usage
permits it.
For instance, in Balu Swami Reddiar v. Balakrishna (1956), the court held that a marriage
between close relatives was void as it was against public policy, even though it was a
customary practice among the Reddiar community.
Solemnisation of Marriage According to Customary Rites
Section 7 of the Act requires that a Hindu marriage be solemnised according to the customary
rites and ceremonies of either party. The saptapadi (seven steps) ceremony is important and
the marriage is considered complete once the seventh step is taken.
In Bibba v. Ramkall (1982), the court ruled that merely performing some ceremonies with
the intention of being married does not suffice; the ceremonies must be in accordance with
the customs of the parties.