Llb notes family law 1 hindu law PDF

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StuDocu is not sponsored or endorsed by any college or universityLLB Notes- Family Law -1 (Hindu Law)General Principles of Law of Torts (Osmania University)StuDocu is not sponsored or endorsed by any college or universityLLB Notes- Family Law -1 (Hindu Law)General Principles of Law of Torts (Osmania...

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LLB Notes- Family Law -1 (Hindu Law) General Principles of Law of Torts (Osmania University)

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Class Notes on Family Law/Hindu Law 1 – UNIT I (1st Sem / 3 year LL.B) Family Law / Hindu Law – UNIT I — Revision Study Notes for LL.B Introduction of the Hindu Law Concept of Dharma Hindu Law is a body of principles or rules called ‘Dharma’. Dharma according to Hindu texts embraces everything in life. According to the Hindus, ‘Dharma’ includes not only what is known as law in the modern sense of the term but all rules of good and proper human conduct. Dharma is used to mean justice what is right in a given circumstance, moral, religious, pious or righteous conduct, being helpful to living beings and things, duty, law and usage or custom having in the force of law and also a valid Rajashasana Origin of Hindu law The Hindu system as modified through centuries has been in existence for over five thousand years and has continued to govern the social and moral patterns of Hindu life with harmonizing the diverse elements of Hindu cultural life. Magne says, “Hindu law has the oldest pedigree of any known system of Jurisprudence and even now it shows no signs of decrepitude“. Nature and scope of Hindu Law Hindu law, though believed to be of divine origin, is based essentially on immemorial custom and many of the acts of the people which were purely of a secular nature. But the secular nature of the acts have been modified to suit the religious preferences of a Brahmin community. With a desire to promote the special objects of religion or policy, they have used their intellectual superiority and religious influence to mold the customs of the people. Who are Hindus The term ‘Hindus’ denotes all those persons who profess Hindu religion either by birth from Hindu parents or by conversion to Hindu faith. In Yagnapurus dasji v. Muldas [AIR 1966 SC 1119], the Supreme Court accepted the working formula evolved by Tilak regarding Hindu religion that ‘acceptance of vedas’ with reverence, recognition of the fact that the number of Gods to be worshiped at large, that indeed is the distinguishing feature of Hindu

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religion. In Shastri v Muldas SC AIR 1961, SC has held that various sub sects of Hindus such as Swaminarayan, Satsangis, Arya Samajis are also Hindus by religion because they follow the same basic concept of Hindu Philosophy. Converts and Reconverts are also Hindus. If only one parent is a Hindu, the person can be a Hindu if he/she has been raised as a Hindu. In Sapna vs State of kerala, Kerala HC, the son of Hindu father and Christian mother was held to be a Christian To whom Hindu Law apply 1. 2. 3. 4. 5. 6. 7.

Hindus by birth Off shoots of Hinduism Persons who are not Muslims, Christians, Parsis or Jews Converts to Hinduism Reconverts to Hinduism Harijans Aboriginal Tribes

To whom Hindu law does not apply  to converts from the Hindu to the Mohammedan faith  to the Hindu converts to Christianity  to the illegitimate children of a Hindu father by Christian mother and who are brought up as Christians Constitution of India and the Enactments under the Hindu Law Presently, Hindu Law is applied through the Hindu Marriage Act, 1955; the Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956; and the Hindu Adoptions and Maintenance Act, 1956 Constitutional enactments are:  Hindu Women’s Rights to Property Act, 1937  Hindu Succession Act, 1956 Impact of Hindu Law Enactments in Fundamental Rights

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Several principles of Hindu Law have been held invalid on the ground that they infringe the Fundamental Rights. For example, the rule of Damdupat is hit by Article 15(1) of the Constitution and as such would be void under Article 13(1). Sources of Hindu Law Ancient Sources Before the codification of Hindu Law, the ancient literature was the only source of the law. These sources can be divided into four categories: 01. Shruti (Vedas) Shruti means “what is heard”. It is believed that the rishis and munis had reached the height of spirituality where they were revealed the knowledge of Vedas. Thus, shrutis include the four vedas – rig, yajur, sam, and athrava along with their brahmanas. The brahmanas are like the apendices to the Vedas. Vedas primarily contain theories about sacrifices, rituals, and customs. 02. Smritis Smriti means “what is remembered”. With Smritis, a systematic study and teaching of Vedas started. Many sages, from time to time, have written down the concepts given in Vedas. So it can be said that Smritis are a written memoir of the knowledge of the sages. Immediately after the Vedic period, a need for the regulation of the society arose.  Dharmasutras: The Dharmansutras were written during 800 to 200 BC. They were mostly written in prose form but also contain verses. It is clear that they were meant to be training manuals of sages for teaching students.  Dharmashastras: Dharmashastras were mostly in metrical verses and were based of Dharmasutras. However, they were a lot more systematic and clear.  Manusmriti: This is the earliest and most important of all. It is not only defined the way of life in India but is also well know in Java, Bali, and Sumatra. The name of the real author is not known because the author has written it under the mythical name of Manu, who is considered to the the first human.  Yajnavalkya Smriti: Though written after Manusmriti, this is a very important smriti. Its language is very direct and clear. It is also a lot more

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logical. He also gives a lot of importance to customs but hold the king to be below the law.  Narada Smriti: Narada was from Nepal and this smriti is well preserved and its complete text is available. This is the only smriti that does not deal with religion and morality at all but concentrates only on civil law. 03. Commenatries and Digests After 200 AD, most the of work was done only on the existing material given in Smrutis. The work done to explain a particular smriti is called a commentary. Commentaries were composed in the period immediately after 200 AD. Digests were mainly written after that and incorporated and explained material from all the smruitis. As noted ealier, some of the commentaries were, manubhashya, manutika, and mitakshara. While the most important digest is Jimutvahan’s Dayabhag that is applicable in the Bengal and Orissa area. Mitakshara literally means ‘New Word’ and is paramount source of law in all of India. 04. Customs Most of the Hindu law is based on customs and practices followed by the people all across the country. Even smrutis have given importance to customs. They have held customs as transcendent law and have advised the Kings to give decisions based on customs after due religious consideration. Customs are of four types:  Local Custom: These are the customs that are followed in a given geographical area.  Family Custom: These are the customs that are followed by a family from a long time. These are applicable to families where ever they live.  Class or Caste Custom: These are the customs that are followed by a particular cast or community. It is binding on the members of that community or caste. By far, this is one of the most important source of laws.  Guild Custom: These are the customs that are followed by traders. Requirements for a valid custom    

Ancient Continuous Certain Reasonable

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 Not against morality  Not against public policy  Not against any law Proof of Custom The burden of proving a custom is on the person who alleges it. Usually, customs are proved by instances. In the case of Prakash vs Parmeshwari, it was held that one instance does not prove a custom. However, in the case of Ujagar vs Jeo, it was held that if a custom has been brought to notice of the court repeated, no further proof is required. Usage and Custom The term custom and usage is commonly used in commercial law, but “custom” and “usage” can be distinguished. A usage is a repetition of acts whereas custom is the law or general rule that arises from such repetition. A usage may exist without a custom, but a custom cannot arise without a usage accompanying it or preceding it. Usage derives its authority from the assent of the parties to a transaction and is applicable only to consensual arrangements. Custom derives its authority from its adoption into the law and is binding regardless of any acts of assent by the parties. In modern law, however, the two principles are often merged into one by the courts. Modern Sources Judicial Decisions (Precedents) The doctrine of stare decisis started in India from the British rule. All cases are now recorded and new cases are decided based on existing case laws.Today, the judgment of SC is binding on all courts across India and the judgment of HC is binding on all courts in that state. Legislatures / Statutes (Codification of Hindu Law) In modern society, this is the only way to bring in new laws. The parliament, in accordance with the needs society, constitutes new laws. For example, a new way of performing Hindu marriages in Tamil Nadu that got rid of rituals and priests was rejected by the SC on the basis that new customs cannot be invented. However, TN later passed an act that recognized these marriages. Justice, equity and good conscience

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Equity means fairness in dealing. Modern judicial systems greatly rely on being impartial. True justice can only be delivered through equity and good conscience. In a situation where no rule is given, a sense of ‘reasonableness’ must prevail. According to Gautama, in such situation, the decision should be given that is acceptable to at least ten people who are knowledgeable in shastras. Yagyavalkya has said that where ever there are conflicting rules, the decision must be based on ‘Nyaya’. Schools of Hindu Law Due to the emergence of various commentaries on SMIRITI and SRUTI, different schools of thoughts arose. The commentary in one part of the country varied from the commentary in the other parts of the country. The Mitakshara School The Mitakshara School exists throughout India except in the State of Bengal and Assam. The Yagna Valkya Smriti was commented on by Vigneshwara under the title Mitakshara. The followers of Mitakshara are grouped together under the Mitakshara School. Mitakshara school is based on the code of yagnavalkya commented by vigneshwara, a great thinker and a law maker from Gulbarga, Karnataka. The Inheritance is based on the principle or propinquity i.e. the nearest in blood relationship will get the property. The school is followed throughout India except Bengal state. Sapinda relationship is of blood. The right to Hindu joint family property is by birth. So, a son immediately after birth gets a right to the property.    

Dravidian School Of Thought (Madras School) Maharashtra School (Bombay School Of Thought) Banaras School Of Thought Mithila School Of Thought

The Dayabhaga School It exists in Bengal and Assam only. The Yagna Valkya smriti is commented on by Jimootavagana under the title Dayabhaga. It has no sub-school. it differs from Mistakshara School in many respects.

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Dayabhaga School is based on the code of yagnavalkya commented by Jimutuvahana, Inheritance is based on the principle of spiritual benefit. It arises by pinda offering i.e. rice ball offering to deceased ancestors. This school is followed in Bengal state only. Sapinda relation is by pinda offerings. The right to Hindu joint family property is not by birth but only on the death of the father. The system of devolution of property is by inheritance. The legal heirs (sons) have definite shares after the death of the father.

Class Notes on Family Law I – Unit II (1st Sem / 3 year LL.B) UNIT – II Marriage and Kinship Evolution of the Institution of Marriage and Family Definition and Forms of Hindu Marriage o Definitions of Marriage: Marriage is a civil and religious contract whereby a man is joined and united to a woman for the purpose of civilized society. In law ‘marriage’ may mean either the acts, agreements, or ceremony by which two persons enter into wedlock, or their subsequent relation created thereby. Marriage is the civil status or personal relation of one man and one woman joined together in a matrimonial union which was lawfully entered into. o Characteristics of Marriage: Marriage is universal, It is for the formation of family, It forges a new social link, It fixes the responsibility of bringing up children on the parents, It is a result of civil or religious ceremony, Legitimization of children born out of such union which is a social need, In marriage, the male and female get the right of mutual relationship in economic, social and biological spheres.

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o Origin of Marriage: The Institute of Marriage evolved in an evolutionary manner. In the earliest form of groupings of people, sex was absolutely unregulated and the children were considered to be the children of the group. According to Morgan, marriage institution started with group marriage, then polygamy and lastly monogamy. o Importance of the Institution of Marriage: The institute of marriage regulates and socially validates relatively long-term legitimate sexual relation between males and females, Marriage serves to start reproductive process, Marriage is also a way to acquire new Kinsmen, It is only after marriage a family comes into being o Hindu Marriage: o Matrimonial Rights and Obligations o Duties of a Husband are: to protect his wife, to give her a home, to maintain her by providing her with comforts and necessities of life within his means, to treat her kindly with affection and courtesy, to honour the wife, not to assault or commit battery against his wife’s person o Rights of a Husband are: he is entitled to the custody and the conjugal society of his wife, he is entitled to succeed to her if she predeceases him without issue, and can utilise her Sridhana property to relieve himself in circumstances of extreme distress o Duties of a Wife are: to attend to the needs of her husband both in religious and household activities, to show obedience and veneration for the husband, to live with him wherever he may choose to reside unless he is guilty of cruelty or misconduct o Rights of a Wife are: right for maintenance throughout her life, right of equality in the house of her husband, right to bring suit for the restitution of conjugal rights, right to get divorce for the cruelty, insults, etc Different Forms of Hindu Marriage The four obsolete approved forms    

Brahma (to a man learned in vedas) Daiva (to a preist) Arsha (father’s taking gift from groom: a cow and a bull) Prajapatya (similar to Brahma, gift of a daughter by father, but bridegroom need not be a bachelor)

The four unapproved forms

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   

Asura (When groom buys bride through money) Gandharva (When voluntary union against parent’s wishes) Rakshasa (When forcible abduction / kidnapping) Paishacha (when intoxicated)

Salient Features of Hindu Marriage Act, 1955 o o o o o o o o

Ancient Hindu Law of Marriage During Muslim period During early british rule Enactments in the British Rule Enactments in Independent India The Special Marriage Act, 1954 Salient Features of the Hindu Marriage Act, 1955 Main changes introduced in the Hindu Marriage, 1955 by the Marriage Laws (Amendment) Act, 1976

Application of Hindu Marriage Act, 1955 Definitions o o o o

Custom and Usages Full Blood, Half Blood and Uterine Blood Sapinda Relationship Degree of Prohibited Relationship

Overriding Effect of the Hindu Marriage Act, 1955 Conditions of Hindu Marriage Section 5 of the Hindu Marriage Act, 1955 lists out the following conditions to be fulfilled for the solemnization between any two Hindus:o Monogamy: The first essential condition for a valid marriage is that neither party should have a spouse living at the time of marriage. Monogamy is the voluntary union for life of one man with one woman to the exclusion of all others. In the case of Varadrajan v. State, it was held that a party to be bigamous marriage could be punished only upon the proof of the prior marriage having been solemnized according to religious ceremonies and customs. o Mental Capacity: A marriage is bliss. A sound mind is a key to a happy married life. Clause (ii) of Section 5 of the Act lays down as one of the

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o

o

o

o

o

o

o

conditions for a Hindu Marriage that neither party must be suffering from unsoundness of mind, mental disorder, and insanity. Age of Parties: The Hindu Marriage Act, 1955 lays down the condition that at the time of the marriage, the bridegroom must have completed the age of 21 and the bride the age of 18 years. In the case of Rabindra Prasad v. Sita Devi, the court held that a child marriage is not void and observed that “the marriage solemnized in violation of Section 5 (iii) remains unaffected. Degrees of Prohibited Relationship: Clause 10 of Section 5 of the Hindu Marriage Act, 1955 lays down that no marriage is valid if it is made between persons related to each other within the prohibited degrees unless such marriage is sanctioned by custom or usage governing both the parties. Beyond Sapinda Relationship: According to Mitakshara, Sapinda means a person connected by the same blood relation. Clause (v) of Section 5 of the Hindu Marriage Act, 1955 itself provides that the parties to marriage should not be sapindas of each other, unless the custom or usage governing each of them permits of a marriage between two. The question of virginity of the bride: The Hindu bride is expected to be a virgin. If the bride had been made pregnant by another, the husband can have the marriage set-aside by a decree of nullity, provided (a) he was ignorant of this fact at the time of marriage; (b) he did not have marital intercourse after discovering the fact; (c) petition is brought within one year from the date of marriage Impotency and other physical infirmities: If the bridegroom is found impotent after the marriage, the marriage can be set-aside under section 12 of the Act. Such marriage is voidable. Inter-caste Marriage: The Government of India enacted ‘Hindu Marriages Validating Act, 1949, which validates intercaste marriages and also marriages between Hindus, Jains and Sikhs. In the case of Bai Gulab v. Jiwan Lal, the Bombay High Court upheld the validity of Anuloma marriages. Doctrine of Factum Valet: It is a doctrine of Hindu law, which was originally enunciated by the author of the Dayabhaga, and also recognized by the followers of the Mitakshara, that ‘a fact cannot be altered by a hundred texts’. The text referred to are directory texts, as opposed to mandatory texts. The maxim, therefore, means that if a fact is accomplished, i.e., if an act is done and finally completed, although it may contravene a hundred directory texts, the fact will nevertheless stand, and the act done will be deemed to be legal and binding.This

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doctrine came from Roman maxim ‘factum valet quod fieri non debuit’ which literally means that ‘what ought not to be done become valid when done’.In the case of Venkatrama v. State, the court has applied the doctrine of factum valet to child marriage and held that the marriage itself is valid though penal consequences are attracted. The child marriages are neither void nor voidable. They continue to be valid even though punishable. Ceremonies of Hindu Marriage o No particular form of mar...