Important Topics under Hindu Law for Law Entrance Exams
Important Topics under Hindu Law for Law Entrance Exams
According to Magne, “Hindu law has the oldest pedigree of any known system of jurisprudence and even now its shows no signs of decrepitude”. Hindu law is based on custom and practices prevalent amongst the Hindus.
Sources of Hindu Law:
Ancient source: Vedas, smritis, dharmashastras, shrutis, customs and usages.
Modern sources: Precedents (judicial decisions), legislative Acts, equity, justice and good conscience.
Schools of Hindu Law:
Mitakshara School: it finds its name and origin from a commentary on Yajnavalkya’s smriti written by Vijnaneshwara. This school prevails throughout India except in the states of Bengal and Assam. The Mitakshara school has the following sub schools:
The Benaras School- it prevails in North Bihar, Benaras, Central, Western and Northern India.
The Mithila Scholl- it prevails in North West and East Bihar.
The Dravida or Chennai School- it prevails in Tamil Nadu i.e. Southern India.
The Maharashtra or Mumbai School- it prevails in Gujarat, kanara and in the parts of India where Marathi is spoken as local language.
Dayabhaga School: it finds its name and origin from a commentary on various leading smritis written by Jimutvahana. It prevails in Bengal and Assam and deals only with the matters of partition and inheritance. On all other matters other than partition and inheritance in the states of Bengal and Assam, Mitakshara School is applicable.
The term ‘Hindu’ includes the following people in its ambit:
Hindu by religion- any person who is a Hindu, Jain, Sikh or Buddhist by religion. Virasaives, Lingayats, Tantriks, Arya samajists are all Hindus.
Hindu by Birth- a person (whether born legitimate or illegitimate) will be a Hindu if both his parents are Hindus. If the person (whether born legitimate or illegitimate) has one of the parent who is a Hindu and the person has been bought up as a Hindu then he will be considered as Hindu.
Hindu by conversion- any person who is a convert or reconvert to Hinduism, Buddhism, Sikhism or Jainism is a Hindu.
Any person who is not a Muslim, Christian, Parsi or Jew and who is not governed by any other law.
A Hindu does not cease to be a Hindu if he becomes an atheist or lapses from religious practices or adopts western culture.
MARRIAGE UNDER HINDU LAW
Marriage was considered as a holy union and sacramental. The sacramental nature of marriage has following three characteristics:
It is a permanent union i.e. once tied cannot be untied.
It is an eternal union i.e. valid not only in life but in lives to come.
It is a holy union i.e. performance of religious ceremonies is essential.
Hindu Marriage Act, 1955 does not specify any particular forms of marriage, it only provides that marriage should have been solemnized according to Hindu rites and ceremonies or in accordance with the customary ceremonies prevalent in the community to which bride and bridegroom belongs. Under Hindu law performance of saptapadi (seven steps taken before the sacred fire by the bride and groom).
Section 5 of the Hindu Marriage Act, 1955 following conditions shall be fulfilled in order to solemnize a valid marriage between the two persons:
Both the parties to the marriage should be Hindu. If one of them is a hind and the other a non Hindu or both are non-Hindus, the marriage will not be subject matter of this Act but will relate to some other law viz special marriage Act etc.
Neither party should have a spouse living at the time of marriage i.e. the Act prohibits bigamy or polygamy.
At the time of marriage, neither party :
Is incapable of giving a valid consent to the marriage due to unsoundness of mind; or
Has been suffering from a mental disorder of such nature and to such degree as to be unfit for marriage and procreation of children.
Has been subject to recurrent attacks of insanity or epilepsy.
(If a party to marriage is not suffering from any defect at the time of marriage but falls ill mentally after the marriage, there is no violation of the above mentioned conditions)
The bridegroom must have completed the age of 21 years and bride must have attained 18 years age at the time of marriage.
The parties to the marriage should not be within the degrees of prohibited relationship unless the custom or usage. Two persons are related to each other in the following manner they are said to fall in the degrees of prohibited relationship:
By lineal ascent- eg father and daughter, father and granddaughter etc.
By affinity: eg father-in-law and daughter-in-law, step mother and step son etc.
Wife of brother or father’s brother or mother’s brother or father’s father’s brother or mother’s father’s brother. Etc
Certain close relations such as brother and sister, niece and uncle, nephew and aunt, cousins etc
The parties are not spindas of each other, unless the custom or usage governing each of them permits of a marriage between the two. According to section 3(f) of the Act states that ‘sapinda relationship’ with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth generation (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.
Full blood means when two persons have same father and mother
Half blood means when two persons have same father but different mothers
Uterine blood means when two persons have same mother but different fathers.
Illegitimate children are those who are not born out of a valid marriage.
Under Hindu law child marriage is a valid marriage. Prohibition of Child Marriage Act 2006 declares the marriage (whether solemnized before or after commencement of the Act) between a male less than 21 years of age and a female less than 18 years of age as voidable at the option of the party to the marriage who was a child at the time of marriage.
A marriage solemnized at the commencement of Hindu Marriage Act, 1955 shall be void ab intio i.e. it shall be null and void if it is performed in the contravention of following conditions:
If any party to the marriage has a spouse living at the time of marriage.
If the parties are within the degree of prohibited relationship unless the custom or usage governing each of them permits such a marriage.
If the parties are sapindas of each other, unless the custom or usage governing each of them permits such a marriage.
A void marriage is no marriage. It is void since its inception.
A marriage which can be annulled or avoided at the option of one or both the parties is known as a voidable marriage. It shall be voidable on any of the following ground:
The marriage has not consummated owing to the impotence of the other party. Impotency can be both physical and mental.
The marriage has been performed with the person who incapable of giving a valid consent.
The wife was pregnant at the time of marriage by some other person than her lawfully married husband. in order avoid marriage on this ground husband needs to prove the following facts:
That the husband was at the time of marriage ignorant of the fact of pregnancy of his wife
Absence of consensual marital intercourse by the husband with his wife since such discovery
That the husband has started the proceedings to avoid marriage within one year of the solemnization of marriage.
RESTITUTION OF CONJUGAL RIGHTS
Section 9 of Hindu Marriage Act, 1955, lays down that if one of the spouses without reasonable excuse withdraws from the society of the other the aggrieved party may approach the court for restitution of its conjugal rights. However for the application of this section following conditions must be fulfilled:
The respondent has withdrawn from the society of petitioner without a reasonable excuse.
The court is satisfied that the statements made in petition are true.
There is no legal ground for refusing to grant application.