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What are the Modern Sources of Hindu Law?

Now all the important points of Hindu law are found in the law reports. Since the laws propounded by the courts have the effect of superseding the commentaries, they have assumed greater importance. The decisions of Privy Council and Supreme Court are binding on all the courts including High Courts. The decisions of the High Court are not binding on any other High Court although they are binding on the courts subordinate thereto.

Thus the decisions of Privy Council, Supreme Court and those of the High Courts constitute precedents to become important source of law. Bose, J. observed: “The laws we are administering are judge-made laws. The ancient sages said nothing about the present matter and even where they often spoke with conflicting voices, and when they did it, sometimes spoke so enigamatically that the learned and able commentators were unable to agree as to what they meant. In the circumstances it is the courts which have moulded the Hindu law and made it, what it is today.”

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The law relating to adoption prior to the Hindu Adoption and Maintenance Act, 1956, the law delimiting the pious duty of the son to pay the father’s debts to the extent of ancestral property, inherited by him, recognising the coparcener’s power to alienate his shares in the joint-family property prior to partition in certain provinces, restricting the definition of Stridhan and women’s right, are some of numerous instances where the judges of the Privy Council have modified, or altered the law either on account of their ignorance of Sanskrit language or owing to their enthusiam to introduce the rules of equity and good conscience to the original law. The judicial decisions have, thus, immensely affected the growth of Hindu law.

(b) Legislation:

Legislation is the modern source of Hindu Law and has a colossal importance,, in the evolution of modem Hindu law. The legislations have the effect of reforming the law and in certain respects have superseded the textual law. Prior to the British regime, Hindu law was subjected to diverse practices in different parts of the country on account of differences in the commentaries and Digests. Codification of law in the light of changes which had taken place in the course of time was a necessity.

The British Government itself passed certain Acts with a view to bring some reforms in certain aspects of law. In post-independence era, legislations of far-reaching effect have revolutionised the law relating to marriage, adoption, maintenance, succession, minority and guardianship. Now the legislations have become potential source of law. The important legislations which have modified, altered and supplemented the Hindu law are as follows:

(1) The Caste Disabilities Removal Act, 1850:

Under the Act a person renouncing his religion or losing his caste is not deprived of his rights of inheritance.

(2) The Hindu Widow’s Remarriage Act, 1856:

The Act legalised remarriage of Hindu widow and made clear provisions with respect to their rights and disabilities on remarriage.

(3) The Native Converts Marriage Dissolution Act, 1866:

The Act permitted Hindu converts to Christianity to get dissolution of marriage under certain circumstances. Under the pure Hindu law marriage being considered a sacrament could not be subjected to dissolution.

(4) The Special Marriage Act, 1872:

The Act permitted marriage between persons having different castes and different religions. It was amended in 1923 and has been repealed by the Act 43 of 1954.

(5) The Indian Majority Act, 1875:

The Act fixes the age of majority on the completion of 18th years except in matters of marriage and adoption, for which the rules of old Hindu law continued to apply.

(6) The Transfer of Property Act, 1882:

The Act superseded the Hindu law relating to the transfer of property excepting certain gifts.

(7) The Guardian and Wards Act, 1890:

It provided for the appointment of guardian for the welfare of minors.

(8) The Hindu Disposition of Property Act, 1916:

It permitted bequests of property to an unborn person.

(9) Inheritance (Removal of Disabilities) Act, 1928:

The Act amended the Hindu Law relating to exclusion from inheritance of certain class of heirs on account of physical defects.

(10) The Hindu Law of Inheritance (Amendment) Act, 1919:

It provided for a change in the order of heirs on intestate succession and created new female heirs.

(11) The Indian Succession Act, 1925:

It modified the Hindu law relating to Wills.

(12) The Child Marriage Restraint Act, 1928 (Sharda Act):

It provided restraints on child marriages.

(13) The Hindu Gains of Learning Act, 1930:

The Act provided that any acquisitions made by a coparcener by means of learning special skill or training are to be treated as his separate property. Prior to the Act property acquired by a coparcener by the exercise of his professional skill or special training was regarded as joint-family property, if the expenses of his training or education were met out of the joint-family property or he was maintained out of the joint fund.

(14) The Hindu Women’s right to Property Act, 1937:

The Act improved the position of Hindu woman with respect to her right of inheriting the coparcenary property. A widow became entitled to get a share in the coparcenary property along with her son.

(15) The Arya Marriage Validation Act, 1937:

The Act recognised the validity of inter-caste marriage current among the Arya Samajists, whether Hindus or converts from other religions.

(16) The Hindu Marriage Disabilities Removal Act, 1946:

It has now been repealed by Hindu Marriage Act 25 of 1955.

(17) The Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946:

The Act permitted a Hindu wife to reside separately and to get maintenance from the husband in certain cases.

(18) Hindu Marriage Validity Act of 1949:

It provided that a marriage between Hindus of different castes shall not be invalid only on the ground that the parties thereto belonged to different castes, sub-castes or sects. In fact, it legalised inter-caste marriages. Now the Act has been repealed by Hindu Marriage Act 25 of 1955.

(19) The Special Marriage Act, 1954:

The Act has validated the marriage between two persons who belonged to two different religions.

(20) The Hindu Marriage Act, 1955:

The Act has completely overhauled the law relating to marriage between Hindus, including Jain, Sikh and Buddhists.

(21) The Hindu Minority and Guardianship Act, 1956:

The Act has supplemented the law, already existing with respect to minors and guardian. It has renovated the powers of Guardians of different kinds.

(22) The Hindu Succession Act, 1956:

The Act introduced some remarkable changes in the law of succession. It provided for the equal rights of inheritance to Hindu females and granted absolute rights to them with respect to a property acquired by them through any lawful means.

(23) The Hindu Adoptions and Maintenance Act, 1956:

The Act has considerably changed the old law of adoption and maintenance and has conferred the right on the Hindu female to adopt a child.

(24) Marriage Laws (Amendment) Act, 1976:

The Act has brought about some revolutionary changes in the existing Hindu Marriage Act of 1955. It introduced divorce by mutual consent, common grounds for judicial separation and divorce and relaxation in the rigorous process of obtaining divorce.

(25) The Child Marriage Restraint (Amendment) Act, 1978:

The Act provided that the age of male should be 21 years and that of female 18 years at the time of marriage.

(26) The Prohibition of Child Marriage Act, 2006:

The Act provided that the case of contravention of the condition specified in Clause (iii) of Section 5 of the Hindu Marriage Act with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both.

(27) Indian Contract Act, 1872:

The Indian Contract Act supersedes the Hindu law of contract, except the rule of Damdupat which lays down that interest exceeding the amount of the principal cannot be recovered at any time.

Justice, Equity and Good Conscience:

The principles of justice, equity and good conscience have been strong source of Hindu Law. Virtually the introduction of this phraseology in Hindu law can be accredited to the modem English judges. Necessity was felt by the judges to adopt certain principles of fairness and justice in those cases where law became too much complicated on account of conflicting texts or complete absence of law or judicial precedents on certain aspects of Hindu law. Rules of justice, equity and good conscience were, thus made applicable in the administration of Hindu Law to cases not governed by Smritis and the Commentaries.

In Kanchava v. Girimalappa, (before the passing of the Hindu Succession Act, 1956). it was laid down by the Privy Council that the murderer was disqualified from inheriting the property of the victim. The rule of English law was applied to Hindu on grounds of justice, equity and good conscience, and this was statutorily recognised in the Hindu Succession Act, of 1956.

It is, however, to be noted that the principles of justice, equity and good conscience found due recognition in the early Hindu Smriti era. An indirect reference to the principles of equity was found in Manu’s and Yajnavalkyas narration of sources of law where “what is agreeable to one’s soul (good conscience)” has been suggested as ordained foundation of law.

Brihaspati declared that there would be failure of justice if the decisions are given merely according to the letters of Shastras and the principles based on reason are not taken into consideration. Narada, on the other hand, said that in case of conflict between texts of Dharmashastras on certain points that which is reasonable and appealing to conscience must be taken as law.

Kautilya in his Arthashastra has clearly said that if Dharma text is found opposed to judicial reasoning, the Dharma text failed and the authority of reason prevailed. Thus the Dharmashastra writers have recognised the importance of the principles of equity for the growth of Hindu Law.

Customs and Usages:

Customs and usages in general have played a vital role in the evolution of law, but in Hindu law they have special significance. Realising the importance of customs and usages, the Privy Council in one of its decisions clearly stated that “a clear proof of usage will outweigh the written texts of law.” Custom is believed to be based on long established practices and unrecorded revelations.

Its observance has been invariably insisted by the ancient Dharamashtra writers. Custom in its legal connotation means a rule which in a particular family, class or district has from long and continuous usage obtained the force of law. It must be ancient, certain, reasonable and continuous. Where it is found to be in derogation of general rules of law it must be strictly construed.

In Deivanai Achi v. Chidambaram, it was laid down that a custom to have the force of law, must be ancient, certain and reasonable, and it cannot be enlarged by parity of reasons. Where a custom is either immoral or opposed to public policy or forbidden by statute cannot be recognised to be valid. In order that the general law may be overridden by proof of custom, the evidence must satisfy the court that the majority of persons look upon the customary rules as binding.

That must be established by a series of well-known concordant and on the whole continuous instances, so that the common consent of the class in question is clearly demonstrated by the number of the instances proved.

The obligatory nature of customs has been recognised by all the ancient writers presumably on the fact that their basis is the sacred text of revelation. The most quoted text of Narada is, “Custom is very powerful (as it decides everything) and overrules the sacred law.” Ashaya commenting on the text of Narada wrote: Immemorial usage of every country (or province) handed down from generation to generation can never be overruled on the strength of Shastras.”

Manu, stressing the importance of customary rules declared that it was the duty of the King to decide all cases which fall under the eighteen titles of Vyavahara or civil law according to the principles drawn from local usages and from the institutes of sacred law, and that a King who knows the sacred law must inquire into the laws of castes, of districts, of guilds and of families and settle the peculiar law of each.

According to Yajnavalkya “one should not practice that which though ordained by the Smriti is condemned by the people…. whatever the custom, law and usages those should be observed and followed by the monarch as before.” Brihaspati has also recognised the importance of customs. In the concerned text he ordained the King to respect the age old customs and usages, prevailing in a country or immunity at a particular time, otherwise the subjects become rebellious.

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