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Who is a Hindu?
The HMA defines a Hindu in Section 2.
The following persons are governed by Hindu Law :
1. Those who are Hindus by birth.
2. Those who follow Hindu religion. [S.2(1)(a)]
3. Those who are converts to Hinduism, or those who by reconversion accept Hindu religion again, as was also upheld in Perumal Madar v. Ponnuswami. [S.2(1), Expl. (c)]
4. Those who are known as Hindus.
5. Jains, Sikhs and Buddhists. [S.2(1)(b)]
6. Legitimate and illegitimate children of Hindu parents. [S.2(1), Expl. (a)]
7. Those children one of whose parents is a Hindu, Jain, Sikh or Buddhist and who are brought up as Hindus. [S.2(1), Expl. (b)]
8. Those who have an intention of becoming a Hindu and whose behaviour so exhibits their intention. [S.2(1), Expl. (b)]
9. Brahmo Samajists, Arya Samajists and Santhal community and Lingayats who are considered as Shudras and are accepted as such by others as Hindus. [S.2(1)(a)]
It is extremely difficult, to define the Hindu religion because, Hinduism does not revolve around any one prophet or god, any one philosophy or dogma, or any one mode of worship. It is all-pervasive. It embraces numerous views and ways of life.
In Rani Bhagwat Kaur v. Jogendra Chandra Bose, the Privy Council delved into the intricacies of the question of the essential prerequisites and characteristics of any person who claims to be a Hindu.
Sources of Hindu Law
Dharma, that which helps the sustainment of living beings is dharma. The Hindu legal system is deeply rooted in the concept of dharma and the bulk of Hindu Law stems from the concept of dharma.
Four sources of dharma or law (ancient sources):
1. The Vedas (i.e. the Shruti)
2. The Smritis or Dharmashastras
3. The conduct (or customs) of the virtuous
4. One's own conscience
Modern sources are Judicial decisions; Legislation; and Equity, justice and good conscience.
Shrutis or Vedas
Veda is divine revelation containing the very words of god. Vedas are, regarded as infallible and considered as the supreme authority. They contain the root and the original sources of dharma. The Vedas are four in number: Rigveda, Yajurveda, Samaveda, and Atharvaveda.
Smritis or Dharmashastras
The Smritis constituted the principal source of Hindu Law. The early Smritis were termed as Dharmasutras. The Smritis constitute the basic structure of Hindu Law and lay down or declare the rules and precepts of dharma. Smritis are of two kinds: Sutras and Dharmashastras.
Sutras can be said to be aphorisms of law, the sutras came to formulated into three classes: Srauta sutras-deals with rituals, Grihya sutras-deals with domestic ceremonies and Dharmasutras-deals with law.
Dharmasutras served as a basic background for the Dharmashastras. Rules laid down in the Dharmashastras are those of achara, vyavahar and prayaschit.
Manusmriti, contains the following subjects: 1) origin of the world; 2) sixteen Samskaras; 3) marraige; 4) yagya; 5) good conduct; 6) duties of females; 7) duties of a king; 8) suits; 9) crimes; 10) justice; 11) taxes, obligations of males and females; 12) punishment to criminals; 13) duties of the four sects; 14) penance; 15) conduction after death due to worldly activities; and 16) the nature of one's atma or self-realisation.
Puranas are codes which illustrate the law by giving examples of its application.
Custom is one of the three sources of Hindu Law. Hindu Law recognises three types of customs: local custom, class custom, class custom and family custom.
Two schools of Hindu Law are the Mitakshara and the Dayabhaga. Mitakshara is a commentary on the Yajnavalkya Smriti. Vijnasneshwara is its author. Dayabhaga, is a digest of all Smritis. Dayabhaga was written by Jimutavahana.
Differences between the Mitakshara and the Dayabhaga Schools
The main points of difference may be laid down as under:
1. Ownership of property. - The Mitakshara expounds the doctrine of ownership by birth in favour of the son in ancestral property held by his father, making the son a co-owner with his father. The son, is entitled to demand partition of such property even during his father's lifetime. In the case of the Dayabhaga Scholl, this doctrine is not approved. The son, while his father is alive, cannot demand partition.
2. Right of son. - In the Mitakshara School, a son has a right to control and interdict unauthorised alienations of ancestral property by his father, whereas under the Dayabhaga School, the father is the absolute owner of the property and the son has no such right.
3. Alienation - Under the Mitakshara School, member of a joint family cannot alienate his interest in the joint family property, while under the Dayabhaga School of thought, on father's death, the sons obtain the father's property in quasi-severalty as a partitioned succession and each son is entitled to alienate his share freely.
4. Right of survivorship. - Under the Mitakshara School, there is a right of survivorship inter se between members. Under the Dayabhaga School, on the death of a member, in the absence of a male issue, his share devolves on his widow by inheritance.
5. Basic of heritability. - Under the Mitakshara School of law, the principle of blood relationship is the basis of heritability and propinquity and it is the rule for determining preference. On the other hand, spiritual benefit is the basis of heritability under the Dayabhaga School and it determines the order of succession.
Custom or usage or "sadachara"
Hindu Law originated from customs and conventions. However, a customer only comes in when it is in derogation of the Hindu Law. If, therefore, any party relies on the Hindu Law, he need not say that the custom is also in accordance with it, for in that case it is law which will prevail. The burden of proving a custom in derogation of Hindu Law is on the person who alleges it.
A custom to be recognised as having the force of law must be valid; not opposed to public policy must possess antiquity, continuity, certainly and reasonableness. Thus, an alleged custom among the Reddiars of South India, according to which a man can marry his own daughter's daughter, cannot be recognised by a court of law, being opposed to public policy, abhorrent to decency and morality and inconsistent with the practices of good men.
Onus of proof
Custom or usage repeatedly brought to the notice of the courts may be held to be introduced into the law without necessity of proof in each particular case. Thus, one who affirms and asserts such a custom does not have to prove it, but one who denies it has to disprove its existence.
The burden of proving that a custom is derogatory to a particular law is upon the person who asserts it. The custom has to be clearly pleaded and satisfactory evidence for it has to be placed before the court.
Usage must be well-known and followed by parties in their transactions. Usage is, therefore, uniform customary practice. There are four types of customs: Family customs, Class customs, Local customs and Institutional customs
Judicial decisions are regarded as an important source of Hindu Law. Just as the commentators in the past bridged the gulf between law as enunciated in the text and the changing society, the superior courts are now discharging the same function, though a delicate one. Article 141 of the Constitution recognises the Supreme Court's role in this regard.
Hindu Law has made in the 19th and 20th centuries is due to court rulings entirely. As almost all the points of Hindu Law are to be found in law reports, the pride of place can be given to judicial decisions.
Legislation is the strongest source of law and it prevails over all other sources. Law and religion in India were conceived of as one and undivided, during the British regime in India. It began by abrogating practices which were not approved by the public and which were regarded as barbarous and inhuman, for example, consecration, committing of sati, practice of devadasi, practice of ostracising a person. These rules, thus, formed additional modern sources of Hindu Law.
Enactments modifying, abrogating and supplementing Hindu Law
Most of the Hindu law are the following:
1. Child Marriage Restraint Act, 1929 (CMRA). - The Act prohibits child marriage which was prevalent in the ancient Hindu society.
2. Hindu Marriage Act, 1955.
3. Hindu Succession Act, 1956.
4. Hindu Minority and Guardianship Act, 1956.
5. Hindu Adoptions and Maintenance Act, 1956.
6. Foreign Marriage Act, 1969. - The Act provides for an enabling from of marriage more or less on the same lines as the Special Marriage Act, 1954 (SMA), which can be availed of outside India, where one of the parties to the marriage is an Indian citizen.