Ew EOE ——— = eceures HT - Family Law Lectures 11 tions to Manu's texts in fact UI wherever necessary, supported | him was authoritative ar reag a (his ¢ ie inion given by r rs. Though the work flourished the end of the 12th century by Prince lowed by Srikara, Dharesvara, Bisvay V between the lines and while ments 0 The expos! Mion condueive to the requl Y resort 2 other authorities: " other commenuit pilitated at as soon fol OU be "be contradicte contuny, ot it was recast Medhavithi w Kasha ashthanagar th century Vijananeshwara in the 11 1.4.2 Mitakshara Mitaks by his Guru Visv Riju Mitaksh: ; i ction to his commentary, m ramen Visvarupa ‘hard and diffused language and the s in a simple and concise style. / Miakshara literally means “a brief compendium”. The work is a merely confn specific commentary but encompasses within itself the qui coer of the Seni lat precepts and injunctions, giving it the colour of a digest. Vijananes| wvara explains the m of recondite passages, supplies omissions and reconciles discrepancies by frequent refer to other old expounders of law,” thus analysing the Yajnavalkya Smriti in Brea detail synthesising the various Smriti texts. He deals with several important topics of law, classi them with reasonable precision without any antiquarian trifling or wild philosop| discussions. The intrinsic worth of this treatise made it a juridical work, inspiring othe 3 ij a on Yajnavalkya Smriti by Vijananeshwara” as told teen in the latter half of the 11th century. It is als ‘or Riju Sam Mitakshara or Parmitakshara. Vijananeshwara, entions that the Code of Yajnavalkya was explained ame has been abridged write commentaries on By the 11th century, the country was formed into powerful and independent states o| with rivalry among them. Distinct customs and usages were sometimes recognised as a su force to the medieval laws. The legislators of each state interpreted ancient texts in the li of the requirements of that time so that the Code enacted could be enforced by the sover authorities. Written and unwritten laws were harmonised in the light of the wants of peo} and their characteristic unique customs and traditions without altering the foundation. is how the different schools of law originated and to this day, Hindu law is divided into sub-schools” or branches. The term “school” is of a later origin and the word “sampraday depicted the region-based variations previously. These five schools are the Mithila, the Ben: the Dravida, the Maharashtra and the Bengal schools.”> Mitakshara prevailed in the Mithil Benaras, Dravida and Maharashtra schools while in Bengal, Jimutavahana propounded Dayabhaga law. In the four sub-schools governed by the Mitakshara, the primary source Hindu law and the general principles are common. All these schools acknowledge Mitaks coe 1 20. An ascetic also mentioned as bearing the name of Vijnana Yogin of Kalyanpura in the present Hyclerabad Sa Me was a contemporary of King Vikramaditya, 1076-1127 AD. 21. Tagore Law Lectures 1880, Rajkumar S: i incif i a Cea 3 PO Rajkumar Sarvadhikari, The Principles of Hinds Law of Inheritance, hackes Sia 22, Buddha Singh v Laltw Sin a5, Iintlarion mmentar aq, $1 3(1915) 42 14 208 ( Bhs 35) Riapwandeny Doate Nyna ae, (1867) 11 Moo Ind App 487 (507, 508). crsed nah Law ra dinappa, AIR 1951 Bom 57: 53 Bom LR 192. The sub-di there was no just there:Chay pret 1—Sources of Hindu Law 2B e sme authority br i oie a ee reference o specific treatises and commentaries controling 2 ent ivergences between th ‘ajna Bp Cade ot Mie, Miia snd Drains ani Bo ree netelibe most impo ara was virtually the this s ; gon ah her ho nd ees fk eo Yyesoaies pane gnes Othe {cachers of the Mithila school were widely prevslear fverlin ie vee fi raya se Sea their Sa and conclusively proved that aras and Mithila in Be He tempted 0 show the northern intxpretaons a incorrect Sen eres rreacked by the former, he remained firm. While other cy | authorities to support an spots achers cited authoriti swpoint, Jimuta authorities to support the Ht ve 7 aera pees led to reason and, therefore, his Dayabhaga costae his repun eae rivalled in his power of reasoning. Therefore, Mitakshara remained che supreme authority in che whole of India except Bengal where Dayabhaga was the law. In shed Besatnscioal the primary work is Mitakshara by Vijananeshwar, followed by a commentary on Mitakshara and Madan Parijata known as Subodhini by Visvesvara Bhi Madhava Acharya’s commentary on Parasara Smriti, Kalpacara by Lakshmidhora, Vivada Tandava by Kamalakara, Keshava Vaijayanti and a Soames on the Mitalehara by Nanda Pandita, Vira Mitrodaya by Mitra Mishra and a commentary on Mitakshara by Lakshmi Devi, known as Balam Bhatta. In the Dravida school, Mitakshara is of supreme autho! followed by Smriti Chandrika by Devananda Bhatta, a commentary on Parasara § Madhava Acharya, Saraswati Vilasa attributed to Pratapa Rudra Deva and Vyavahara Nirnaya by Varada Raja. In the Mithila school, again the Mitakshara was of supreme authority and was followed by Vivada Ratnakara by Chandesvara, Vivada Chandra by Misaru Misra or Lakshmi Devi, and Vivada Chintamani by Vachaspati Mishra. Mitakshara was followed by Vyavahara Mayukha by Nilkantha and a commenti a Smriti by Madhava Acharaya in Maharashtra. In Bengal, Dayabhaga by Jimutavahana was of paramount importance and was followed by Dayatatwa by Raghunandana and Dayakrama Sangraha by Srikrishna Tarkalankara, Among the several commentaries on Dayabhaga, the ones by Srinatha, Achyuta, Raghunandana, Mahesvara, Srikrishna and Rambhadra are important. and is ry on Par 1.4.2.1 The Mitakshara System The primary source of Hindu law is common to all Hindus and became the subject for subsequent commentators. With multiple commentators interpreting the same source, the difference in the finished works was inevitable. Added to this was the region-wise acceptance of the authority or superiority of a particular work and a comparative rejection of the other. Thus Mitakshara, a commentary on the Yajnavalkya Smriti by Vijananeshwara,”* became the authority for the whole of India except parts of Punjab” and Bengal. In Bengal also, Mitakshara was received as high authority except with respect to those points on which it conflicted with Dayabhaga that is of paramount authority in Bengal. Even Mitakshara was subject to different interpretations leading to its sub-division into several schools. In absence of any major divergence with respect to the fundamental or constitutive principles, it remained infact a manor sub-division resulting primarily due to disparate interpretations of __ ae ee 26. Tagore Law Lectures 1880, Rajkumar Sarvadhikari, The Principles of Hindu Law of Inheritance, ‘Thacker, Spink, Calcutta, 1882, p 410. 27. Tagore Law Lectures 1880, Rajkumar Sat Cal , 188: 402. - i e 28. See Sur sae abide v CIT Tix, (1976) 2 TR 164, for importance of Mitakshara and Yajnavalkya Smrici presently and its juristic weight. 29. Punjab was governed by the customary law. vadhikeari, The Principles of Hindu Law of Inberitance, Thacker, Spink,ectures I nily Law Lectures | 36. y supplemented the Principle works , iver es merel: individual commentato! ngence not abrogate or replace it. ah ¢ Pundits were often sough; 5 iti i jally, the opinions Or jaw. It is doubtful whey.” During the British regime, Ys of Hindu law. Ic is ul wheth, : i jjudicate on matters OF "2 ientitan’ aime. nt European judges to help them adju ding authorities at the releva MC. Moree, Pundits so consulted had access to all the mere for an understanding of the sub. s were also FeSpO ably with the widening of knowledg, diluted consi in some cases” the author; language. Fo! language. For popular region-wise variation: These strict sub-divisions were dilu familiarity of jurists with the Sanskrit ore all the schools were examined to settle questio® to all the schools. ‘The Benaras school, also described as F India including Orissa the whole of northern In os example, in son tic Hindu law, which are necessarily Cony the most orthodox school,” prevails in practic sr and the central province" but does nor qi Bunce 5p itakshara to a large extent, sel Prevails. “Tp pee eS Se ae lled the most liberal of all schools, covers the Bombay school, also called the n heen Marae Or ding the island of Bombay, Gujarat, North Konkan, and Berar Spa, Ree an ay Cujarat and North Konkan, Vyavahara Mayukha’s authority on cen Ca eee erent ofa conflict between the two is even superior to Mitakshara. In p, Reeiatet id « i s of authority is considered paralle ‘d Khandesh, the “Mayukha’ in term ca aed naee Consultation of other works” including Subodhini and Kaustubha” by the Hig Coen Bombs bur the principle adopted by it was to construe sr Court of Bombay was not uncommon, : various works in harmony with each other and not to rake up controversies and conflicts among them to the extent possible. The Mithila school covered the Tirhoot and certain pans of Bihar, while the Dravida school covered the southern parts of India. 1.4.3 Dayabhaga Written by Jimutavahana in around the latter half of the 12th century, the Dayabhaga is not a commentary on a specific work but a digest of all the Codes. It was part of a larger work titled “Dharmaratna” and is a valuable work on the laws of inheritance and succession, Jimutavahana’s doctrines of inheritance, succession and joint family system controvert some basic rules of Mitakshara by Vijananeshwara. Without accepting the set of propositions laid down by other commentators, Jimutavahana deals with the subject of inheritance and succession as an objective science with a forthright and direct approach. He appeals to reason and logic and not merely to precepts, precedents or postulations, Examining the roots by digging up various standpoints, he plunges into the heart of the subject to come up with doctrines that were close to practicality and rationality. 1.4.4 Mitakshara and Dayabhaga: Difference Mitakshara and Dayabhaga remain the primary schools of Hindu law and differ on the following basic aspects:” 30. Rar 5 : ree (1914) 14 IA 290, 42 Cal 384; and Buddha Singh v Laltu Singh, (1915) 37 All 604, 61 1. Bhyah Ram Singh v Bhyah Ugur Si Jgur Singh, (1870) 13 Moo Ind App 37: 32. Basanta Kumar» Jogendra Nat, (1906) ILR 33 Cal 371 GE 95h Tam ena MP pe aba, AIR 1930 Nap 267; Bhaskar v Laxmibai, AIR 1953 Nep 326; Udebhan v Vir ges . See also Ramaji v Manohar, AIR 1961 Bom 160. eo: . 35, Ci fae vdeme Ram, AIR 1930 Nep 265. 3 36. Bee Soren Shab re. (4892) TLR 17 Bom 114. i 2 Sutherland Privy Co sk 1 Bom 285, 293 (EB); Collector of Madura v Moortoo Ramlité! ay rland Privy Council 37. Lekhraj Singh v Ganga Sahai, Lage a Appeals 135, 14 + (1868) 12 Moo Ind App 397, 436.Chapter 1—Sourees of Hindu Law 37 pdr Mitakshara, the basis for the law of inheritance i @ Jat iss nearness in blood relationship or consang who is nearer in blood relationship succeeds. means that children should inherit equally as they are equally nearer to the de parent. It, nevertheless, admits two exceptions, namely, exclusion of fem preference £0 agnates over cognates. The law of succession under D on the principle of religious efficacy or spiritual benefits and a pe more religious benefit on the deceased is preferred to those who co penefit. The conferment of religious benefit is linked to the dect oblations or Pindadan to the deceased. It, therefore, co cognates, which distinguishes the other system and arranges the limits of cognates upon principles peculiar to it. The Hindu Succession Act, 1956 has abrogated the difference between the two schools and has provided for a uniform law relating to succession among Hindus. he principle of propinquity, > ity, which means that one This is purely a secular principle and cased ales” and ayabhaga is based tson who confers onfer less spiritual rine of offering of rejects the preference of agnates (i) With respect to joint family under Mitakshara, the son, grandson and great grandson have a right by birth in the joint family property having an equal interest with the father. Under Dayabhaga, the son or grandson or great grandson has no such right till the father is alive and as he is the master of the property, he can dispose it of at his pleasure.” After his death, property, whether ancestral or separate, devolves by inheritance or succession. Consequently, it does not recognise the right of the son to ask for a partition during the lifetime of the father. (ii) Under Mitakshara law, the coparceners have community of interest and unity of possession, while under the Dayabhaga law coparceners have specified and ascertained shares in the joint family property. The interests do not fluctuate but the coparceners have a unity of possession. (iv) While under the Mirakshara system the brothers and even collaterals so long as they are joint do not have a right to alienate their shares, under the Dayabhaga system the brothers or other collaterals hold their shares quasi-severally and while still undivided, have a right to dispose of their shares. (¥) Under the Mitakshara system, the doctrine of survivorship applies and on the death of a coparcener his share is taken by the surviving coparceners,° but under the Dayabhaga system, in the event of a coparcener dying issueless, his widow has a right to succeed to his share and to enforce a partition on het own account.*! 1.4.5 Matriarchal System of Inheritance ‘There are no sacred authorities on the matrilineal system in India, and the law is firmly established in the customs and usages of the communities. Matriarchal system is recognised in some parts of Himachal Pradesh, and in some areas of South India particularly in Kerala and ‘Tamil Nadu. On the Malabar coast, not only the Nairs for whom the joint family system has been abolished, but also around 99% of the predominantly Muslim population of the Lakshadweep Sesto ich sali 38. ae by the Ju Succession (Amendment) Act, 2005, Lekhraj Singh v Ganga Sahai, (1887) ILR 9 All 39. Partha Talukdar v Mina Hardinge, AIR. 1993 Cal 118. 40. The position was clarified and unified by the Hindu Women's Right to Property Act, 1937. 1. See Ram Dulare v Batul Bibi, AIR 1976 All 135 wherein, on the death of a coparcener, his widow alienated a Portion of the property for financing a holy tip ro Gaya. The reversioner challenged the alicnation saying it ‘as not binding on him. The court held that religious acts done by the widow are beneficial to the spiritual well-being of the husband and, therefore, binding on he reversioner,Family Law Lectures I a {and follows the matilinea sytem of Marumabdartayam. Despiee Coen 1 Chi matrilineal inheritance. Plurality of marriage, to begin wi Aetologl “Sau fie aaa ing separate homes. Exact physiologi ‘mbandhanam” with spouses maintaining, ee yas Bist alent. often unknown, as the male lineage in the family [omit Peapromerey scdinberiranse'@ OF residential unit. Women were the bearers of TM Tt ested right of resident from the mother the cilen who had pe vee financially and physic suenance nthe fly Boe: Wee pr idence proper nae and ary i Rau s is children were noy In i em he ett rd iit Wer po nged his or her mother only. The Tarvad of a female change wi pagel Se conte “Tarvad owned property jointly, though thi OFMOst my, eal “Karnavan” managed it. Yet, at the same time, the Karnavan was not analogoy, ae jarchal families nor was he competent to alienate the properties. The syscery , debt modified by the British and later by the Indian Parliament with the help of a Series Eenein the Kerala Joint Family (Abolition) Act, 1975. This legislative modification only with respect co the Stare of Kerala and did not affect the matrilineal societies outside Key) 1.5 Custom “The importance of customs as a source of law is unparalleled. Customs are often describe ‘as che parent ofall laws in a society as all rules can trace their origin of roots in the populy, fOms OF usages, howsoever distinct or complex they are. They have become the prin) uurce inspiring lawmakers to obtain che substantive content of legal principles from 12 prevalent customs and usages. In fact, customs are so important that a law contrary to popu custom has found litele success and unless they are reformative, and their compliance intisted|upon, they remain in cold storage. Though the Smritkar’s, che commentator’s and the digest writer's works were confing primarily to postulating and interpreting the Shrutis, incorporation of customary prvi. in the resulting texts was unavoidable at cach and every stage. ‘Therefore, cervaiy on” did find their way into the commentaries and digests. Even the earlier postulsrion not totally divorced from the customs. Sages explained that the four legs of lie svc Dharam, Vyavahara, Charitra and Rajya Shasana with theit importance is the seg Forexample, laws made by a king could overrule the Charitra and co nae ‘ In the early stages of development of Hindu law, strictly ioe Hale Psed ere “achar ices of good people incorporating the cludes the principles of morali f i 5 ludes t iples of morality, signifying ok the Veda th sou a ae a Public policy. Gautam sates the uc know the Ve’ Customs of conan nar on ail the traditions and practices of thos vo ‘ecords have authority. The Smsea cts ad Families which are not opposed ws 2 customs in their works. : do refer to origin and the binding nature of cahemnnpetg De rntes law. The Romans wok Pm perith: Tahas lie, jura)T-Ashaya cites, “Des do! coon lenghanivah kadachana, Detha Jasiblana” 8 ‘palanceych prajah praksbubjyonawn from local usa es drawr al usages and from the nidemned be a a “one should not practise that which thove, those should be observed and followed if ee -* Whatever the ctistom, law and oeustom decides. crerything and overrules the fasred te aa the people. Narada said 2 Ran wt Senora cer Aca ng wn from opined that customs and usages of the people suppli Race eae i nese found in the Smits. nt."* The importance families adhering to a particular established ver Porentiality of migrating with the which forms the law. The duty of a European Judge who is und: bli “The eran obligation ¢o administer Hindu law is not so mucl «2 inquire whether a disputed doctrine is fairly deducible fiom she woe, initio ee geo whether it has been received by the particular school which governs h which he has to deal and has there been sanctioned by u ‘flaw clear proof oF usage sage. For under the Hindu system will ourweigh the written text of the law. ie aaa raat law clear proof of usage 1.5.1 Essential Attributes of Custom Custom must be ancient,*' reasonable,” 1 must c certain,® uniform, obligatory and observed continuously® without interruption and should not be immoral or opposed to public 44. Manu, 83, “Pratyaham Deshdyashestacha Shastradyashtaishcha Haitubbihs asbradashsu margeshu Nibadiwani Prathakah Prachakah” 45. Yajnavalkya 3343, “Yasmin deshe ya acharo yuhara cha kulasithih, tatheva Paripalyoasoh yada vanshumupagatah? 46. Vjanaharo bi Balwana Dharmastenaviahiyate. 47. Praja Praksubhayate anyatha. 48. Parbasi v Jagdis, (1902) 29 1A 82. 49. Balwant Rao v Baji Rao, (1921) ILR 48 Cal 30 (PC). 50. Collector of Madura v Mootioo Ramlinga Sattuputty, 2 Sutherland Privy Council Appeals 135, 140: (1868) 12 Moo Ind App 397, 436. However, in reality, during the British administration proof of such custom was made very difficult and only a few customs came to be recognised as law. “The English rule of “memory of man runneth not to the contrary" is not stricly applicable in India. See Gokal Chand v Parvin Kumari, AUR.1952 SC 231. For the test of antiquity see Ambalika Dasi v Aparna Dasi, (1918) 45 Cal 835, 858; Nolin Behari v Hari Pada, A\R 1934 Cal 452. See also Kumar Basant Singh v Kunwar Brijraj Singh, (1935) 62 1A 180, 193, wherein the custom was shown to have existed for about 50 years. See also Subhani'v Nawab, AIR.1941 Lab 154. 52. Shib Narain Mookherjee v Bhut Nath, (1918) 45 Cal 475, 479; Deivanai Achi v Chidambaram Chettiar, AUR 1954 Mad 657; Muharram Ali v Barkat Ali, (1930) 12 Lah 286. 53. Sivananja v Mutu Ramalinga, (1866) 3 Mad HCR 75, 77; Bhujangrav v Malojirav, (1868) 5 Bom HC.161 (AC); Indramani Devi v Raghunanadha Banja, AIR 1961 Ori. 9. 54. Saraswati Ammal v Jagadambal, AIR 1954 SC 201. 55. Shyam Sunder v State of Bihar, AIR 1981 SC 178; Sahabjie v Indrajis, (1905) 27 All 203; Amina Kharun v Khalilur Rahman, AIR.1933 Oudh 246; Rajkishen v Ramjoy, (1876) \ Cal 186; Chundri v Bibi, AIR 1931 All 547. ‘Custom among dancing girls to adopt daughters for initiating them later into this profession or adoption of daughters by prostitutes is held as immoral custom, see Hira v Radha, (1913) 37 Bom 116; Mathura Naikin 1» Esu, (1880) 4 Bom 545; Kamalakshi v Ramaswami Chetty. (1896) 19 Mad 127; Guddartureddi v Ganapathi, (4912) 23 Mad LJ 493. 51 56.nily Law Leceures Fam is expressly saved by the 5 unless and un OF written rule of law or a statute’ erve zs ivy Council obs ey should be ancient an, and should be construed strictly. The sy My ag oninary ew sat chy 3 a Ir is of the essence of the special usage they posses the esndition of anciquicy and cera ay cna aae impossibility, Customs can be of various kinds, ei Dee vm of tribes or classes. Though a compl! 7 ‘varied cust CO-existence of innumerable and varie not authority of the settlement officen recone’ © es A family custom followed Seas Po : exe family cute 3 me persons adopt cea PP f village and «il " ding on the family, and in case g 6 A custom cannot come Conscience 1.6 Rules of Equity, Justice and Good a i 7 As i 7 nal egal fictions. | 0 iedilayl f che law and its application : iving force behind laying down of the | S apprication is oa Epes ty : ererieria eis doties? without doing injustice, the principles of equi ale aoe ce were bound to find their way in the process of implementation justice an oe cof inclades “Nyaya’ or “Yukti, a judicial connotation of the principles justice. “! self inclu i icial.c . ve Bri Semen aeoired on ‘appeal co Yakti. Jamini in his Mimansa laid down the pring aoe, re © Yajnavalkya enjoins that Nyaya (natural equity a of Atidesha, ie, principles of analogy.” Yajnav pene ee ear reason) should prevail in case of conflicting rules of law.” Brihaspati cautioned thac ih might be failure of justice due to mechanical application of written laws if no reason g “The spirit of equity underlies many I . Murugappa v Nagappa, (1906) 29 Mad 161, a custom to pay money for adoption of a boy is bad as op v oh public policy errs Kothandaram Reddi v Thesu Reddi, (1914) 27 Mad LJ 416; Danakoté w Balasundig, (1913) 36 Mad 19. See also Rajah Vurmah v Ravi Vaurmah, (1876) 4 1A.76, wherein it was held that a proposed custom enabling the trustees of a religious insticution to sell the trust was opposed to public policy and bud in the eyes of law. See also Keshav v Bai Gandi, (1915) 39 Bom 538, wherein it was held that a custom permiing a Hindu husband to dissolve the marriage without the consent of the other party after payment of a sum of money to her fixed by the caste is bad and, therefore, void. See also Budansa Rowther v Fatima Bi, (19 % Mad LJ 260, wherein a custom permitting a woman co remarry during the lifetime of the husband was held bad. A-custom at variance with any legal rule cannot be upheld. The Hindu Marriage Act, 1955, section 5(iv) and (v). Here, it has been provided that two Hindus canor ‘marry if they are Sapinda of each other or are within degrees of prohibited relations with respect to each uth However, if chere isa custom to the contrary in the community to which both of them belong, the custom wil override the law. 60. Haribar Prasad v Balmiki Prasad, AIR 1975 SC 733; Harprasad v Sheo, 3 1.254, 58. 59. Gh Rata Rup Singh v Ram Baiini, (1884) 11 1A 149, 169. i ‘Re secord are known by the terms Wajib-ul-arz meaning written representations or petition and Ri wicban inate ra customs. See Uman Parshad v Gandharp Singh, (1888) 14 1A 12 al Sing €3: Haribar Prasad » Balmiti Prasad, AIR 1975 SC733, ee eo Prasad, AIR 1975 SC 733. » Kehar Singh, 62 Punj LR 692, ee Abrabam, (1863) 9 Moo 68. Semper Aeg 69. Ye 70.Suammmineesmesnei ope Chapter 1—Sources of Hindu | 4l was kept in mind.’! The conflict betw. caging he parce sy in India during British regime applied the sense and equable justice. Wer the express charters of the Britith Palins peeCradutl development of sociery and justice id justice was harmonised by tity, justice and good in cases where no concrete ty and «i i Fo forccen probleme, Wan ng comparatively new siuatons gave reseel lymade concrete judicial material or complex and ea toms affording a guideline for their solutions, the courts i aoe igles from Teason, equity, parallel situations, and i in these situations derived pan applied them tothe problem before therm co Rare eee ob feet oF theory to the eee) her the ends of justice. F 2 tion imposed on a murderer to succeed nds of justice. For example disqualifica etree: scceed to the property of the murdered (i Pe based on the Fo lish rinciple of public policy. and recognition ae pr 1¢ general principles of equi ee : i of equity and good 5 ofan of cex. The Privy Counc drew analogy from the Ins cpgitscnd applied theme (vil? The Supreme Court has also recogn silts and applied them to eas rood conscience as a source of law.” It observed: now well settled that in absence of any rule of Hindu lav, th have the auth , the courts have the authority to d the principles of equity, justice and cis decide cases on the principles of equity justice and good conscience un ‘be repugnant to oF inconsistent with any doctrine a theory of | fodeke In daing so decision would 17 Judicial Precedents With the establishment of the courts and the introduction of the formal adversary litigative system in) India during the British regime, initially the courts applied the Smriti law as found in the commentaries to a specific case before them. During the application, not only the in jLestablished interpretations but also their own understanding and interpretations were inding on the parties comprised the we juded in the judgments. The final judgmenc that was incerpretations of the texts by the judges and its specific application © the facts of the case and Prete ease came before the court, the earlier interpretation and application was applied ieathe later also, In this way, the decision of one case was binding nov only on the specific likiganes but also indirectly on the entire communicy Judicial authority by way of precedents tage be secognised simultaneously with the auchority of rhe texts, ‘There was, however, aie lad difference in the acceptance of these auchorities in compation © the reverence with which the texts were treate more so in cases where judicial decisions had the effect of upsetting the established practices or customs: Usually rigid and binding, they were rarely a Fi nirmayabe yubsibeen vichare rs Dharmabanih pee ‘Tl. Kevalam Shastramashrigya na kartavyo 72 Nip Sl eee 85? Pena Sarma 92 Mo 9 0? 9 also Kamalakshy v Narayani. AIR 1968 Ker 123. 74. Kenchava v Girmalappa, (1924) 51 1A 368. Presently this cee ‘75. Subramania Ayyar v Rathnavelu Chetty. i918) 41 ‘Mad 44, 74. 76. Tagore v Tagore, (1872) 1 1A Supp 47. 68. 77. Gurunath v Kamlabai, (1951) SCR 1! 35. rule has become'a parc of the Hindu Succession Act:42 ures UI ily Law Lect ce differen of eaatntiest of vehement public opposition.” a se dl taws growing at an al ed Loddon ihe Oe ato eee ees er wettled” in the courts, Pre Spee : i case law also grew manifold and several deg FPOR, their easy availablity and bin stinguished importance as a source of law s0 Mv oF importance ta de writen teas, Anotiet FAEON GOTT A Hye ancient fexs, they texts over the ancient texts was the sime specie APE iab and suitability of the textual precepts the ancient society as opposed to their “UNsuitabif Th i applica to the then prevalent conditions. Therefore, the same texts suitable is application inh mi have been useful in compari he present society by the courts. Even mog igh in arison to U : u f ae ae n das it applied 0 the “modern « ations by te were tolerated and accepte! sot : i < yat chat iety” “in tune with the changing jj mewhat changed society” von the ground that it was ” Bose J has observed:” gen ‘ge are administering are judge made laws, The ance : ee a a they ofen spoke with conflicting voices and when they dt sometin a nigmatically that the learned and able commencatie were unable f0 agree as to what they ee In ees itis che courts, which have moulded the Hindu law and made what it js By far the most important and unique feature of judicial precedent is its easy availabili and accessibility to all persons interested to gather information about a specific question ofl Conserved in legal reports, they form part of important legal literature and are not the sac, jrlooms of a particular community. In relation to the importance of judicial precedents Hl Supreme Court observed: Fundamentals do not any more require a study of streak texts, digests and commentaries because judicial decisions rendered over the last century and more have given a legalistic form to what was in a farge messurea mingling of religious and moral edicts with rules of positive law. Hindu law today, pare from the piecemeal codification of some of its branches like the laws of marriage, succession, minority trardianship, adopcion and maintenance is judge-made law, though that does not detract from th ‘itde weighe of Smris like the Yajnavalkya Smriti nor from the profundity of Vijananeshvarss fommentary on it, the critique bearing the humble title of “Mitakshara”. “ arity resulted in according pee that they often superseded jn ontributing to the superiority of 4 ding auth sages said nothing about the Authoritative precedents, therefore, are an important source of law callin; obedience and binding authority on the subordinate courts oftheir Peotone and the ratio laid down by the Privy Council and the Supreme Court are binding on all cour in India. The decisions of high courts have only a persuasive authority on EAE parallel hg et are Binding oniche subordinarcicourswithinicheirjurisdiction ene 1.8 Legislations Legislation is i 5 ey winciion i conte, aly scene ascertainable and authoritative source ol Bp verse rules end aie Ba eee period, as different parts of India were sy ri tis itl “ On the personal matters of Indians. The earliest legislations, sheet Poe legislations, therefore, backed by a cautious MRE ce 78. Annotable case oe was that of Dadaji Bhikaji v ee the age of T yone ee st mabat IXILR 529 (Bom Series 1885), which involved the Datiage: Her mariage Pg elemnist sought co avoid this marsiage on reaching the age of 21 = Pb Pinhey J agreed wich ut without her SAS eon was a child and had not consented 1 ths emer her and dismigced dee tae therefore, nor binding on her. ‘The lower ou he result of ie ‘ trl high curio mance boca Petition of restitution of conjugal rights filed by 75. apeeions afiah, 80. Suni al Cat AIR 1946 Nag. 20; | Cihabda 3. ° CE 0976) 2 1TR 164 ene ame the judgment and to sexe a oye odex society and a vehement public vP™ itback to the trial court under another judgeChapter 1—Sources of Hindu Law 43 ee eal a ecw a a to supersede the established rules of Pra Jaw. Never I a specific, easily ascertai Ha ipcimporant egos snack nny ame mode sue of lane sion laws or having a bearing on che succession laws are hereuterdhewseed anced scussed. 1.8.1 The Caste Disabilities Removal Act, 1850 (Repealed) ‘Also known as the Freedom of Religion Act, 1932. Section 9 of the Regulation VII of the Co. spel sacar was a part ofthe Bengal Code of or eritance rights of a convert. Under the strict rules af inherisnes apolicable ands the eiavgnd Muslim law, a difference of religion as beeween the rane applicable under the Hine jsqualification for the heirs to miccsed toil prope whe geal nuk beer tows as . roperty. ie gener. e Sec iedcrniti diam a ey eae tae ras even excommunicated, he forfcited his rights of inheritance from his Hindu relatives and ‘vas expelled from the Hindu joint family. Same was the situation on his expulsion from a caste or community. Whether it was a voluntary act of renunciation of religion or an involuntary jet of excommunication or expulsion from a caste or community, impediments in the nature at forfeiture of property rights were inevitable.*' In order primarily to protect the rights of the convert or the one who has been excommunicated, the Caste Disabilities Removal Act (Repealed) was enacted and promulgated in the whole of India in 1850. The effect of the Act was that if a person due to a renunciation or conversion ceased to adhere to a particular religion yy was excommunicated or expelled from his community, neither the difference of religion with thar of his former relatives nor the fact of his excommunication or expulsion could have ny adverse effect on his property rights. He could continue to be the member of his former family despite his conversion and could inherit the property of his deceased relatives. This Act protected only the rights of a convert or a person who had been expelled from a caste of community but did not alter the fundamental rule of inheritance, é-e., the intestate and the heir should be of the same religion under the Hindu and Muslim. law. So, though a convert’s rights were protected and he could inherit from his Hindu relatives, his descendants and other Hindu relatives could not enjoy the same protection." For example, ifa Hindu man H, having awife W, and ason S converted to Muslim faith and died, his Hindu wife Wand son S could wot inherit from him as they were Hindus on the date of the opening of the succession, i.¢., on the date of the death of #7, and he at the time of his death was a Muslim and in accordance with the principles of Muslim law, a non-Muslim cannot inherie the property of a Muslim Jntestate, but if Wdied before H, then H would inherit from her as his inheritance rights were “Act and the fact that he was not a Hindu would be immaterial. protected under the Section 1 of the Act provided: ‘So much of any law or usage now in force within India as inflicts on any person forfeiture of rights or property, of may be held in any way to impair or affect any right of inheritance by reason of his or her renouncing or having been excluded from the communion of, any religion or being deprived of his caste shall cease to be enforced as law in any court. 81. Subbaraya v Ramaswaml, (1900) 23 Mad 171; Khunni Lal v Gobinda Krishna, (1911) 38 LA 87; Ram Pergash 2 Dalh Bibs, (1924) 3 Pat 152. For deprivation of castes see Vedammal v Vedanayaga, (1908) 31 Mad 100; Bhujjanlal ¥ Gya Persad, (1870) 2 NWP 446; Honamma v Timanna Bhat, (1877) 1 Bom 559. See also Nalinaksha v Rajanikant, (1931) 58 Cal 1392. tivadorai, (1917) 40 Mad 1118; Chidambaram v 82. Miter Sen v Magbul Hasan, AIR 1930 PC 251; Vaithilinga vA ‘Ma Nyein, (1928) 6 Rang 243; Mohamed Ismail v Abdul Hameed, (1948) 2 Mad L) 87.44 ily Law Lectures 1 a 4. 1856 1.8.2 The Hindu Widows’ Remarriage Act sed in response £0 the cll op ae Hindu Widows’ Remarriage Act Ee) of widows” has been repealed by the | is reformers and “intended to legals the remarriage OSS)” the primary purpose of ql Widows ce, 1983 (Act 2 tuently her issue from we ee RRepea) te marry validly and SIPARMANEAR eect on he s le a Hindu widow feagetis a jtimate, Her remartiag® Bad ne ooo eewise. b OF subsequent marriage was de ica of maintens Besecsher, bur Property chat was serled on fer cithet Oey family andi remarriage, she was deemed dead 0 property ended and passed on ro the revers joners as if she was dead. Ps Ie | sec Aso 1.8.3 The Indian Succession Act ae a ‘The Indian Soe Be Le satiate different communities. fr incorpo muipliccy of ae epiples of inheritance laws and laid down a ara form sche Roman and English Pring property of an intestate. It did not differentiate by Providing 1M socal property, nor did it accord any preferential rights to the son, Grane SE a cee oor crcies to women, it preferred them to male collaterals ang weal Foe A vanally pn par with cach other. ‘The major communities in India wend oe ee ee fc, ia application was confined only 0 some Christians and the Jey Pee nc whe a der the Special Marriage Act, 187 later extended to Indians who married under the Spe of such marriage. lif y rated eV e6 1.8.4 The Parsi Intestate Succession Act, 1865 Different laws governed Parsis living in the Presidency towns and the Mofussil arcas. For thyg living in the Presidency areas, English laws were applied in matters of inheritance, which yyy resisted. Mofussl Parsis were meanwhile govemed by their customary laws. The Parsi Ines, Succession Act, 1865 was enacted to unify and modify the law relating to Parsis in India 1.8.5 The Hindu Wills Act, 1870 During colonial times, ic was only the Muslim community which had a well-devclopl law of testamentary succession. Hindus did not have any law relating to Wills, Une), Mitakshara law, a coparcener was prohibited from making a Will of his undivided ines, in the coparcenary property. With respect to his separate property, he had absolute pore of disposal so long as he was alive, but he was not empowered to control the distributi, the property after his death by making a Will. The Hindu Wills Act, 1870 enabled tlinte to make a testamentary disposition of their property. This Act was later consoliclosed in fe Indian Succession Act in 1925. 1.8.6 The Special Marriage Act, 1872 Personal laws had a limited scope for is i i idity of such = z pe for inter-religious marriages, and the validity of sud teatine ys Oe? questioned. Further, under Hindu law there were additional prohibition snes astes and even sub-castes. The Special Marriage Act, 1872 intended to of inter-religious, inter-caste or intra-caste mattisChapter 1—Sources of Hindu Law evant by removal of customary res pe ves was evident as it provided asimple form of marriage in court in presence of a Registrar mi Ses. Though the Act provided that a marriage could be performed in an form, it ane for complete ill the parties made a declaration in accordance with the Act in rae ol ee ne persons: ‘A marriage solemnised under this Act took away the right of a Hindu to adopt a chest Pet he was a member of a joint family at the time of his marriage, the marriage under ae nefect of his automatic severance from the joint family One of the aaa ct ns under the Act was that it enabled wo people to marry if they were professing either ‘or Buddhism, or Sikhism, or Jainism or when neither of them professed the Hindu, Buddhist, Sikh, Jain, Muslim, Christian or Parsi religion. So, if ewo persons belonging, to either the Hindu, Buddhist, Sikh or Jain religion wanted to marry each other under this ‘Act, they could do so while retaining their religion. But if a Hindu, Buddhist, Sikh or Jain ido marry a Muslim, Christian, Jew or Parsi, he could not do so under the Act as such a mariage WaS 4 nullicy.*” Therefore, except in cases where a marriage was solemnised between both of whom professed either the Hindu, Buddhist, Sikh or Jain religion, all wo persons : : ing t0 avail the provisions of this Act and get married under ie had to make a Buddhism, others want Sutaration that they did not profess any of che following religions—Hinduism, Sikhism, Jainism, Islam, Christianity, Judaism or Pars religion. Matrimonial remedi the rules of procedure other than those provided in this Act were subject to the provisions of Fe Indian Divorce Act, 1869" and succession to the property of a person married under the Special Marriage Act, 1872 and to the property of the issue of such marriage” was governed by Speindian Succession Act, 1865.” The Special Marriage Act, 1872 was repealed by the Special Marriage Act, 1954. Fiinduis™, wante! ion of Property Act, 1916 o transfer the property by a gift or by a he date of the making of the gift or the a transfer was earlier void. sposition of 1.8.7 The Hindu Dispos: Under the classical law Hindus were permitted « Will, provided the beneficiary was in existence on 1 settlement. A gift to a person not in existence on the dare of such The Hindu Disposition of Property Act, 1916”! enabled a Hindu to make a hot in existence on the date of making the settlement. Due to property in favour of persons eee a Flindu could make a gift or sectlement in favour of a person subject co the creation of a prior interest in favour of a livi ‘ose death the entire property was to go to such unborn person provided he com ich intermediary. ‘This Act was specifically extended to the ing person on wh ec into existence on the date of the death of su Khoja community. _ eee ad cate Ss TA. His Galen nevertheles, could take a'son in adoption ifhe had no other son living, “This virtually meant that a son marrying under che Special Marriage Act, 1872 would be deemed non-existent for the purposes of adoption aerne vind law only a person having no Hindu son could adopr another son. 85. The Special Marriage Act, 1872, section 22. 86. Niranjan v Eva, (1943) ILR 1 Cal 201. 87. Ratan v Ma ,, (1939) ILR 1 Cal 201. 88. The Special Marriage Act, 1872, section 17- 89. The Special Marriage Act, 1872, section 24. 90. Presently the Indian Succession Act, 1925. 91. Hindu Disposition of Property Act, 1916 (Act 15 of 1916); The Hindy ‘Transfer and Bequests Act (Madras ‘Act of 1912) and che Hind Transfers and Bequests Act (City of Madras) Act 8 of 1921. Later the provisions of sections 113-116 of the Indian Succession Act, 1925, were made applicable to Hindus and in 1930 the application of provisions of Chapter Il of the “Transfer of Property Act, 1882 was also extended to Hindus.Ee Family Law Lectures IL 1.8.8 The Hindu Inheritance (Removal of Disabilities) Act, 1928 i he way of @ person inheritip Under Hindu law, there were several impediments in the way of @ Pel ith Property of another. Some of them were related to physical and poy ie others were inked ro morality rules of publi poliey and even Shor, a TB es incapable of managing or dealing with theie property the blinds” Cet! |" © 00" idig nsane,”* an unchaste widow,” the murderer” of the intestate, a prsson NTE otal lameness oF loss of limbs an outcaste” or a person converted & ATES! TAL or th incapables to perform sacrifice and religious ceremonies were SWAT Pom) Mheritang Unde he Hind nesta Rem i lb xed om theron unde was by birth a lunatic or an idiot, no one else cou! care : broad category of “Disease and deformity”. Only ee ae eae and nor te visibly impaired or physically handicapped. suffered eit aapabliny Fo howe encase rofl ey get sty f any religio n i Sareea ot Acreage not retrospective and did not apply t0 those governed by i. Dayabhaga law." 1.9 Hindu Law as Administered by British Judges in the Colonial ER4 i ive intervention in the Indian judicial system the focus initially Cae a ee of the public sphere of a native, i.e. dealings purely commer or criminal, and adjudication on personal matters like marriage, interiaoes) oa property rights came later. To begin with, confronted with a mass of totally unfamiliar and vast body of rules or laws, they relied on “Pundits” (Brahmin priests) to adjudicate upon and decide these disputes between Hindus. This happened only when the dispute went beyond the “Traditional Panchayat’, which was treated with high respect and veneration. The Panchayat’s decisions were binding on parties as they were backed by a community force. These Panchayats we soon replaced by formal courts or adalats, with a shift from the conciliatory or settlement approach to the adversary form of litigative approach. Technical and formal procedures established on the lines of British courts presided by an unfamiliar judge and an unfamilia legal language further compounded the confusion. 92. Mahesh Chunder v Chunder Mohan, (1975) 14 Beng LR 273; Gunjeshwar Kunwar v Durga Prashad Singh (1917) 44 IA 229: 45 Cal 17; Murarji v Parvathibai, (1876) 1 Bom 177; Umabai v Bhavu, (1876) | Bom 557: Pudiava v Pavanasa, (1922) 45 Mad 949 (FB). 93. Ankul Chandra Bhattacharya v Surendra Nath Bhattacharya, (1939) ILR 1 Cal 592; Pareshmain v Dinaviath, (1862) 1 Beng LR (ACJ) 117; Hira Singh v Ganga Sahai, (1884) ILR 6 All 322. 94. Bharamppa v Uijaingowda, (1922) 46 Bom 455; Savieri Bai v Bhabar, (1927) 51 Bom 50; Bhai Prucapgei Mulshankar, AIR 1924 Bom 353; Mara v Bitsaswamy, (1942) 46 Mys HC 706. 95. Insanity did not mean want of ordinary intelligence; see Tirumamagal v Ramaswamy, (1863) 1 Mad HCK 214, It need not be congenital, see Baboo v Omrao, (1870) 13 Moo Ind App 519; Ram Singh v Bhani, 1918) es All NOS ma Saran Singh v Parmeshwari Nandan Singh, (1942) ILR All 515; Muthusami Guruhhal feenammal, (1920) 43 Mad 464. Subsequent lunacy is not a disqualificati » see Parameswaran v Parumestetll- AIR 1961 Mad 345, a Se Gs mens 96. Vedammal v Vedanayaga, (1908) 31 Mad 100; Gang Kun , i Ganga v Ghasita, (1879) 1 All 46; Baldeo v Matturt Wu e (1911) 33 All 702; Dal Singh v Drini, (1910) 32 All 155; Kojiyadu v Lakshmi, (1882) 5 Mad 149. 38. vewinal » Vedanayaga, (1908) 31 Mad 100 99, Kise eee A903) 26 Mad 113; Murari v Pareatibai, (1876) 1 Born 117,185. 100. Nalinaksha v Rajani, (1 4 vi ae he Giant 0931) 58 Cal 1392. The rights ofan outcaste or the one who converted to another Hit 101. Mutbummal Seboast, Disabilities Removal Act, 1850 (Repealed) See the discussion supra, ramanya Swamy Devasthanam, AIR 1960 SC 601.Chapter 1—~Sources of Hindu | aw ~ 47 F ibstantive la a wich respect £0 sul Jaw, to stare with, Pu _gadte supply shem the Shastric Hin law bua a ashe Mollowing reasons: ‘undies failed to mece their expectations ford () All Pundits (though they were hi were not of equal calibre and, thereh, wo the emergence of different conchonce th respect to ¥y had access to all the texts availabl (i) Tris not clear whether they relevant point of time. (ii) The law varied locally as differ Shastric law did not apply evenly vo all Ty applied to all Hindu communities in India. le on Hindu law at the tunities followed different sets of rules. indus. It was not a Code that uniformly bolishing the practice of consultin i ‘eh; ae p7tiat helped -them:-was cere ere fee ied apply the we sn and for them, they became an cay el hs ms, many texts were avalable in co all eas wore transac or could be translated at that Biel nth marily by the Europeans, of the sacre i h Hi yiibed ilicathgtioon ies of Hint ee Se eres sad ey ei is coud on hewn of Indian Parliament. As the translations were few it was erroneous to assume th Hindu lav was contained only in these translations and untranslated texts that were important reference rmaterial in case of gaps or contradictions were neglected and eventually toully ignored. The law was confined to these translated texts and made static, From the date of availability of the translated text, to the date of its application, the scope for any new development was not comprehensible. Hindu law never was and still cannot be bound by books alone. Litigants started bringing up arguments based on existence of customs at variance with the translated texts. The judiciary had its own limitation to remould the law and keep it abreast with the needs and sequirements of the people. This law that was never static and had always responded positively to progress with time right from Manu Smriti became rigid. Further, at the time of its application during the later colonial era, Hindu law as applied by the British deviated from even the Shastric law due to the following reasons: (Hindu law that was not confined to a few texts was reduced to a few translated texts as were available at that time. (i) Sanskrit texts when translated into English language many a times could not convey the same meaning or connotation of a specific term resulting therefore in distortion of the term, This was often compounded by the fact that English judges unfamiliar with the original language were called upon to implementa system that necessitated the understanding of nor only the theoretical and practical aspects of the concepts of law but also ia familiarity with the lives of people whom they were dealing with, their customs, usages and culture. (iii) The importance of custom as influen ime, yet this extensive research cing the law was ignored as despite their pronouncements that under Hindu law the “proof of a clear custom or usage would outweigh the written law”, proving a custom was made very difficult with the result that the law became very static and often divorced from the lives of the people. In translated texts, judges, in the course of interpreting them, often found gaps that necessitated them to fill them with their own ideas of justice.Family Law Lectures 1 (iv) There was a clear dividing line beow was not always understood in the real mix the two. The Privy Council ha of the judges to distinguish clearly to impose their own precepts that were 2) Va" whole exercise led to the mixing of the Shastri with the rules of justice in line with the = “Anglo Hindu law”. By far the most important point this law over the widely diverse corr ‘the revolt against the Brahmi : pated rt tidha and Mahavir. The reversal ofthis a o ired (p the application ofthe sume Smrist law over these communities ee aioe cd and renounced long back and hese communities in protest had reject csiderable hardships and confusion. Ic wis 6% erroneous assumption on qe at this highly diverse society in all personal m; part of the colonial regime that eh dren soccer in al ma Parewerned by one text or the other or a fe Fe otiaisom became very difficult, imposition of this Shastric law mixed ith English concepts over all natives other than Christians, Muslims, Parsis and Jeyy wie “Hindus” by the native judges was not only wholly inappropriate bu alg Sed to the already compounding confusion. This Brahy Taw, therefore, aie eted even to those communities which could hardly be called Hindus, ang their contesting rights were decided according to the Smeiti mule. As:no definition of the erm “Hindu” existed, this was the origin of a negative definition of the term “Hindu”, i.e, a person who was not a Christian, Muslim, Parsi or Jew was a Hindy and, therefore, subject to the application of this law. was the attempt by the British jud mmmunities including those that | superiority and Sanskrit 1.10 Modern Legislations ‘The need for clarity and codification of Hindu law became a necessity and emerged PrP tata adtentitn during Indias indcpcndence struggle. The cox rela eeeeeeiieea ie frolinnose che Shasuic lnwt br reforen, clarify and codify the lw bringing it in tune with the progress of the Hindu society. Therefore, In 1944 under the Bai erah for Benegal Nersing) Rath ithe: Hlndit Taw" Coramiteese’ was’ appoined w evolve a uniform Code of Hindu law by blending the most progressive rules of law avalible inidifferentschools arid bringing all Hindus subject to the application of this Code. The draft from i as but was strongly opposed by the arch conservatives. The reasons for such to give up the pres tannins ranged from their unpreparedness and unwillingnes atack on the “sacred law”, and even ee of these man-made laws as ail Jawaharlal Nehru een of ee the controversy-ridden property angles resigned in protest, first law minister of independent India,