The Decision Of Supreme Court of India

Question No. 1:- State the categories of persons to whom Hindu Law applies. Explain whether the members of any schedule tribe coming within the clause (25) of Article 366 of the constitution are governed by the codified Hindu Law? ANSWER:- INTRODUCTION :- The word Hindu is extremely popular and famous term. Generally every person is known to it. But the term of Hindu has not been defined till now. A person may be called as Hindu, but only few knew why they are Hindu? A time also came in the middle when a person was called Hindu who believed in Hindu religion or followed it. But this identity of Hindu also did not remained for too long, because it was not required for Hindu o believe in Hindu religion. It is said that though several codified Hindu Laws were enacted in 195 and 1956 but the term Hindu was not defined. Today it can be said broadly that a person who is not Muslim, Christain, Parsi or Jew shall be Hindu.

The Supreme Court in the case “Dr. Ramesh Yashwant Prabhu v/s Prabhakar Kashinath Kunta” -1996 and Manohar Joshi v/s Nitia Bhausher Patil-1996 explain the term Hinduism related to Hindu as the life style and mentality of this continent. Now the term Hindu can be widely defined the person to whom Hindu Law applies shall be Hindu. A case : Maya Devi v/s Uttram -1861, this view was proved. Here pertinent to mention that according to ancient Dharamshashtras, a child born between Hindu parents only can be called Hindu, there was no such thing of Hindu conversion of religion. Several times a question arose that a codified Hindu Law does not apply to those persons which belongs to schedule tribe under article 366 clause (25) of the constitution. Section 2(2) of Hindu Marriage Act 1955 and the case of Dashrath v/s Guru -1972 Orrisa and Kadam v/s Jeetan -1973 of Patna given the answer of this question. According to them a codified Hindu Law shall apply to such persons only when the Central Government notifies in the official Gazette by a notification.

A question also arosed that whether such person shall be considered to be Hindu whose father is Hindu and mother is Christain? In a case Sapna v/s State of Kerala : 1993: It was held that if a child is brought up as a member of Christain famiy then in that situation the child shall be christain instead of being Hindu. Those persons who are Hindu, Jain, Buddhist or Sikh by religion:-The Hindu Law also applies to those persons who are not Hindu by birth but have accepted Hindu religion by conversion. Case: Abrahim v/s Abrahim, 1863, is an important case in this respect. It was held in this case that the Hindu Law applies not only to those who are Hindu by birth but also applies to those persons who have become Hindu by conversion. Another case Morarji vs Administrator General-1929 Madras: It was said that persons becoming Hindu by conversion are also Hindu and the Hindu Law applies over them too. Modern Hindu Law includes both Hindu by birth and Hindu by religion under the term Hindu.

Those persons who are not Mussalman, Chistain, Parsi Or Jew. In wider sense Hindu Law applies to all those who are not Mussalman, Christain, Parsi or Jew. Case : Rajkumar v/s Warwara-1989: Calcutta: The Calcutta High Court held that this category includes all those person who donot believe in any religion. Another case: Yagyapurushdasji v/s Mooldas -1966: The Supreme Court held that the followers of Narayan Swami section as Hindu because though they may be governed by their views or rules but finally are related to the Hindu religion. Who are the followers of Veer Shav, Lingayat or Braham samaj. Prathna Samaj or Arya Samaj and are Hindu by religion. Who are Jain, Buddhist or Sikh by religion. Any child, legitimate or illegitimate, whose both parents are Hindu, Buddhist, Jain or Sikh by religion. Any child legitimate of illegitimate whose either of parent is Hindu, Buddhist, Jain or Sikh by religion and has been brought up a member of that tribe community or group to which that parents was or is member.

Any person who has converted or reconverted to Hindu, Buddhist, Jain or Sikh religion : Cases : Perumal v/s Punnuswami-AIR-1971 & Durga Parsad v/s Sudarshan Swami AIR-1940 Madras. Question No.2:- Under the Hindu Law, “Clear proof of usage will outweigh the written text of Law.” Comment and state whether custom is still a source of modern Hindu Law? What are the various sources of Hindu Law? To what extent custom still continuous to be important source of Hindu Law? Answer : INTRODUCTION:- The Hindu Law is credited to be the most ancient law system which is approximately 6000 years old. 1. Ancient or original sources. 1. Shruti 2. Smriti 3. Digest and Commentaries 4. Custom and Usages. 1. Equity, justice and good conscience. 1. SHRUTI :- The name “shruti” is derived from the word “sru” which means to hear and it signifies what is heard. Shruties are considered as the primary and paramount source of Hindu Law.

The shruti consist of the four Vedas and Upanishads dealing with the religious rites that contain the meaning of attaining true knowledge and moksh as salvation. Dharam Surtra :- Dharam sutra are famous of Gautam, Buddhyan, Apastamb, Harit, Vishnu and Vasith. Dharam Shashtra :- Are famous for Manu Smriti, Yagyavalkya Smriti, Narad Smriti etc. Manu smritis made of 12 chapters and 2694 shlokas. Yagyavalkya smriti is divided into 3 parts and is extremely clear, brief and organised. Narad Smriti being the last smiriti is such first legal code which mentions subjects related to Judicial process, courts and Judiciary. 3. Digest and Commentaries :- These are the third important source of Hindu Law. The commentaries through professing and purporting the rest on the smrities explains modified and enlarged tradition recorded there to bring them into harmony and accordingly to prevent practices of the day. Case : Atmarao v/s Bajirao -1935: It was held that Digest writers and commenter’s has given the statements of Smritis which can fulfil the present requirements & ahead from smrities. The period of the commentaries and digest is between 700 AD -1700Ad.

The last commentary was Vajanty written by Nand Pandit. 4. CUSTOMS AND USAGES :- These are considered an important source of Hindu Law. Narad Smriti says that, “Customs are powerful” they are above the religion. Although codified law has given place to custom, but it is limited. Codified Hindu Law recognises custom only when it has been expressly given a place. Any Marriage may be solicited by the customary tradition of the parties. Divorce can be obtained be prevailing custom or usage and a married male of female above the age of 15 years can be adopted as customary rules. The Judicial Committee explained that, “ Custom is a rule which in a particular family or in particular district has from long usage, obtained the force of law. Hindu sages have recognised good custom binding on the Hindu. In view of the above observations and its practical application it will not be incorrect to mention equity justice and good conscience as the next source of Hindu Law.

Actually Britishers not only established a judicial system in India but also facilitated though the High Court charters that wherever their is lack of lawful rules, their the decision should be on the principles of equity, justice and good conscience. 6. PRECEDENT :- It is an important source of law. It means he Judicial decision over any disputed matter which shall be guideline for the disposition of future similar disputed matters. Generally the decision of Supreme Court, High Court, Privy Council have the effect of precedent over the subordinate court. The decision of Supreme Court is binding over all the subordinate courts. The decision of Supreme Court is binding to its subordinate courts. The decision of Privy Council is binding over all High Courts provided that it has not be over ruled by the Supreme Court. Case: Pandurang Kalu Patil v/s State of Maharashtra-2002. 7. LEGISLATION :- The last important source of Hindu Law is the legislation.

Their source has originated after the establishment of English State in India, when English rulers started enacting several laws. Laws were enacted in accordance to the state, time and circumstances, there were amended too. Today most of the subjects of Hindu Law has been codified. 2. Prevention of Child Widow Act. 3. Hindu Women’s right to Property Act. 6. Hindu Marriage Act. 7. Hindu Adoption & Maintenance Act. Question No.3:- Discuss the main principles on which Mitakshara and Dayabhaga schools of Hindu Law differ from each other. What are the various schools of Hindu Law? Differentiate between Mitakshara and Dayabhaga Schools. 2. Un-codified Hindu Law. 1. The codified Hindu law applies to all Hindu equally whereas the un-codified Hindu Law the situation is different. The application of Un-codified Hindu Law depends upon the context of different schools. Banaras or Varanasi sub school. Maharashtra or Mumbai sub school. Dravid or Madras sub school. The name of this school came from the Digest Mitakshara of Vigyaneshwa. The area of its application is whole India excluding the Assam State.

Case : Rohan v/s Laksman – 1976. It was held that the effect of mitakshara school is so strong that it also applies to even undescribed subjects in Bengal and Assam. Banaras Sub-School :- The area of Banaras sub school is complete North India, rural area of Punjab, south Bihar, Orissa and few parts of Madhya Pradesh. The important books concerning to this are Mitakshara of Vigyaneshwa, Veer Mitrodaa and Niranaya Sandhu of Mitr Mishra. Tirhut and few districts of North Bihar. Books are Vivadh Chintamani and Vivadh Ratnakar. Maharashtra sub school:- It is also called as Mayuk sub school. Area of this sub school is Maharashtra, Saurashtra, Madhya Pradesh and few parts of Andhra Pradesh. Books are Vyavhar Mayuk, Veer Mitradaya and Nirnaya Sandhu. Dravid sub school :- The whole south of India, i.e. Madras, Kerala, Mysore. Books are Smriti Chandrika, Parashar Madhviya, saraswati Vilas, Vyavhar Niranaya. Punjab sub school :- Area of the school is Punjab, Rajasthan, Jammu-Kashmir.

This sub school emphasized on Customs and Usages. Books are Digest on Yagyavalkya Smriti written by Aprak, Mitakshara & Veer Mitrodaya. Its name came from the Digest Dayabhaga of Jimuthvahan. The area of its application is Bengal and Assam. The period of writing of Dayabhaga is considered to be 1090-1130 A.D. Dayabhaga is mainly on essay on partition and succession. 2. JOINT FAMIY & COPARCENARY. Inheritance in Mitakashaara is based on relation by blood. 2. A relative by blood receives succession in property which is the basic principle of Hindu succession law. 3. Women have been excluded in succession. 4. Agnates supersedes the cognates.5.The area of its application is whole India except Assam State. The coparcenary evolves with the birth of a son. Property over which all coparceners have similar ownership. 5. No coparcenary can say before partition that he is the owner of that particular property. Coparcenary has been recognised by this school. 1. The succession of property in Dayabhaga school based on spiritual principles. What is the nature of Hindu Marriage?

What are the essential conditions of a valid Hindu Marriage? Answer :- INTRODUCTION : Marriage in Hindu culture is considered to be a sacred ritual. The relation of husband & wife is considered to made far several life times. Once a person enters into marriage it cannot then be easily dissolved. Both have to spend their lives with each other. It is reason that wife is called the second half. There are several synonyms in Hindu Dharamshashtras far husband-wife, husband is also known as ‘Bhartar’, Swami because he maintains his wife and wife is his responsibility. He is also called the ’Parmeshwar’ because the greatest duty of wife is the service of her husband. Similarly wife is called ‘Jaya’ because child is born through her. Wife is also called ‘Lakshmi’ she is the best friend of husband. Either of the parties at the time of marriage shall not have a living husband or wife. Either of the parties at the time marriage shall not be unsound mind effected or retarded of mental development. Male shall be of 21 years and female of 18 years of age at the time of marriage.

Unless both the parties are governed by their custom or usage the marriage shall not occur between parties under degrees of prohibited relationship. Unless both the parties are governed by their custom or usage the marriage shall occur between parties related to each other by sapinda. Section 7 of the Act also mentions another condition for valid marriage. According to it, marriage shall be solemnised according to customary tradition and rituals. Where saptpadi is necessary it required to be performed compulsoryily. Case : Sujeet Kaur v/s Garja Singh 1994, it was proved. But in the case of Nilabba Somnath Tarapur v/s Divisional Controller KSRTC Bijapur -2002, it was held that where saptpadi is not necessary according to tradition and rituals there a marriage solemnised without Saptpadi shall also be valid. Section 8 of the act is provides for the registration of marriage but it is not necessary although Kangawai v/s Saroj -2002, It was recommended to make the registration of Marriage necessary.

1. The parties of marriage shall be major i.e. male should be above 21 years of age and female should be above l8 years of age. 2. Both parties should be of sound mind. 3. Provision of dissolution of marriage. 4. Saptpadi not necessary. 1. Marriage of minor shall not be considered to be void or voidable. 2. Unsoundness shall not be the ground of void marriage, rather shall be for voidable marriage. 3. The law & procedure of dissolution of marriage is not simple. 4. Where Saptpadi is necessary it has to be performed. 5. Caste based customs and usage in marriage are recognised. 6. Marriage not allowed among sapinda prohibited relations. As to the question of marriage when there is already living husband or wife. When at the time of marriage there is living husband or wife of any party. When parties of marriage fall within Sapinda reation.