Family Law Block 1

COURSE
1 - Introduction to Family Law - Marriage, Divorce, and Guardianship

BLOCK
1 - Introduction to Hindu Law

AUTHOR
Vrinda Maheshwari
Learning Objectives After you go through this material, you should be able to: Identify the classes of people to whom Hindu Law applies Trace the history and sources of Hindu Law in India Work out when someone is a sapinda and when two people can be said to have a relationship in a prohibited degree Perceive the nature of marriage in Hindu Law
2 Rainmaker Training & Recruitment Private Limited, 2011. Any unauthorised use or reproduction of this material shall attract all applicable civil and criminal law remedies.
Introduction Personal laws are a fascinating area of law. Not only are they something that every student interacts with on an almost daily basis, they are also dynamic, diverse, and intricate. The Hindu Law on marriages, for instance, is completely different from the Muslim Law, both in its history as well as its practice. Even within Hindu Law, there is a debate on the application of the law between different schools of thought and between different judicial decisions. In this Programme, we will be looking at personal laws as they relate to marriage, divorce, and guardianship. We will consider succession and other aspects of personal law in a separate Programme. In this introductory Block, we start by defining who may be termed a Hindu understanding that is essential for the application of the Hindu Marriage Act! We will then take a look at the concept of marriage in Hindu law, and consider some important aspects relating to it, all the while paying attention to answering any
questions that you may have or will possibly face in your examinations.
Unit 1: Who are Hindus? Under Hindu Law, The Hindu Marriage Act, 1955 governs the law relating to marriage and divorce. In order to understand whoThe Hindu Marriage Act, 1955 (the HM Act) applies to, we must identify the classes of people covered by the term Hindu. This can be problematic, as it is difficult to ascertain the definitive meaning or scope of Hinduism and so, there is no fixed criteria to determine who is a Hindu either.i However, the HM Act assumes that certain classes of people are Hindus and excludes certain other classes from the ambit of this term. The following chart lists out the various categories of people who are considered to be Hindus for the purpose of the HM Act:
What of the people belonging to the various different sects and subsects of the Hindu religion, such as the AryaSamajis, the BrahmoSamajis, and the Swaminarayans? The Supreme Court, in Shastri v. Muldasii, held that it considers them to be Hindus as well. People who convert to Hinduism are also Hindus, and in PerumalNadarv. Poonuswamiiii, it was held that the intention and
the conduct of the convert must be considered, along with the acceptance of the community. One important case that you must remember in this regard is Ram Mohandas v. Travancore Devaswom Board . In that case, the Kerala High Court held that if a person makes a bona fide declaration of being a Hindu, and his actions and intentions do not betray some nefarious ulterior motive, he will be considered to be a convert to Hinduism. The various aboriginal tribes of India communities such as the Bohras, the Khojas, the Mopals, the Vannia Tamil Christians (in matters barring Section 14 of the HM Act) and some other communities are also considered by the courts in India to be Hindus for the purpose of the HM Act. However, note that the Scheduled Tribes of India (as defined under Article 366(35) of the Constitution of India) do not fall under the purview of the HM Act, unless they either followed Hindu Law before its enactment or the Central Government directs that the HM Act applies to them. In dealing with questions regarding who is a Hindu for the purpose of the HM Act, it is important to stick to the basics and not get
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confused. For instance, assume you are asked a question: Rahman is the son of Ali (a Muslim) and Neha (a Hindu). He has been raised as a Hindu. Subsequently, when he is around fifteen years old, Neha decides to convert to Islam. Is Rahman a Hindu for the purpose of the HM Act? When looking at a question like this, do not get confused by the name of the child, or what Neha, his mother, decides to do later on in life. As we studied above, if a child has been brought up as a Hindu by at least one Hindu parent, he will be considered to be a Hindu. So, Rahman is a Hindu for the purposes of the HM Act and this legislation will apply to him.
Unit 2: Sources of Hindu Law In the last Unit, we considered the categories of people to whom Hindu Law applies. But where does Hindu Law come from? What are its geneses? In this Unit, we will try to answer that question, as we still look to some of these sources for answers, especially when the legislations are silent on some issues. Laws usually evolve from certain more basic propositions. This is the case on the Indian subcontinent as well. Many thousands of years ago, people had been following the guidelines and concepts laid down in the Vedas. These were guidelines then, and did not have the force of law. Over time, they evolved into rules. When rulers started enforcing these rules, they became de facto laws. These were then codified into the various national legislations, such as the Hindu Marriage Act 1955, the Hindu Adoption and Maintenance Act, 1956,the Hindu Minority and Guardianship Act 1956, and the Hindu Succession Act, 1956.
The following are considered to be the sources of Hindu law:
Ancient Sources Let us first analyse the sources in greater detail. Shruti, for instance, refers to the oral tradition, and is derived from the root shru, which means to hear. It is considered to be the primary source of Hindu Law and is believed to be the language of the divine revelation through the sages.vWhen we talk of the shrutis, the vedas are also said to be included. The four vedas Rig Veda, Yajurva Veda, Sama Veda, and Atharva Veda are considered to be the repository of all knowledge. Each veda has three components: Sanhita, which consists mainly of the hymns; Brahmin,which enumerates our duties and means of performing them; and Upanishad,which contains the essence of these duties. While the shrutis are said be of divine origin, the smritis are considered to be human works the ideas that the sages wrote down from their memory in their own words. Dharmasutras and Dharmashastras are the two kinds of smritis. While the former is in the form of prose (short maxims), the latter is made up of small stanzas of poetry. Many of the renowned sages of ancient India,
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including Manu (who is credited with giving Hindus their first laws), Vyas, Vasishta, and Yama though this list is far from exhaustive are said to have penned the smritis. The rules laid down in smritis can be divided into three categories: Achar (relating to morality), Vyavahar (signifying procedural and substantive rules which the king or the state applied for settling disputes in the adjudication of disputes), and Prayaschit (signifying the penalty for commission of a wrong).vii Commentaries and digests (nibandhs) cover a period of more than one thousand years, from the seventh century to 1800 A.D. A lot of these works are devoted to explaining and reconciling the contradictions in the smritis, and in that light, are akin to modern scholarly journals. The different schools of Hindu Law arose because different authorities wrote differing versions and gave interpretations of the law. Dayabhaga and Mitakshara are the two major schools of Hindu Law. Finally, we come to custom, which can be understood as a practice that has been followed for such a long time that it has acquired the
force of law. In many aspects, a custom is said to be superior to written law.You may have noticed the ubiquity and the importance of custom in your own family, where rituals and rites have been handed down from generation to generation and are unwavering. Customs can be local, based on the class, and familial. But can every practice become a custom? No. For a practice to be considered to be a custom and thereby, a source of law it must be: Ancient; Certain and unambiguous; Free of technicalities; Not illegal, immoral, or against public policy; and
Modern Sources The most important modern sources of law are the legislationpassed by the Parliament of India. As we studied earlier in this Unit, various aspects of Hindu Law have been codified in legislation such as The Hindu Marriage Act, 1955, The Hindu Adoptions and Maintenance Act, 1956, The Hindu Minority and Guardianship Act, 1956, and The Hindu Succession Act, 1956. In this Course, apart from looking at Muslim Law, Parsi Law and Christian law, we will also study the three enactments listed above.Succession Law will be dealt with in a separate Programme.Once enacted, the codified law is considered to be final, and is said to override prior customs, unless the Act itself provides otherwise. Precedentsare also referred to as judge-made law. Judgments of
Should have been continuously and uniformly followed for a long time.
the Supreme Court are binding on all courts (and itself), and the judgments of the higher courts are binding on the lower courts. This way, when a court considers a particular aspect of Hindu Law and
provides a judgement, all courts are bound to follow this decision and the law is said to be decided. Finally, in cases where there is no existing rule or law that can be applied to a problem that comes up before the Court, principles of justice, equity, and good conscience are to be kept in mind while resolving a dispute. Fairness and propriety are to be considered as the basic guiding factors. This reliance on principles of justice, equity, and good conscience forms the basis of natural law theory, which you can learn about in the free Programme on Fundamentals of Legal Research on myLawU that is available here.
Unit 3:Sapindas and degrees of prohibited relationships The first two Units would have given you a general outline of the basis of Hindu Law. While we will look at the specifics of the Hindu Marriage Act, 1955 later, at this introductory stage, it is important f or you to understand the concept of degrees of prohibited relationships. In biology, there is a concept known as in-breeding. When two people who are genetically very similar to each other breed and produce children, the children tend to be sickly and there is a higher probability that they may suffer from a variety of genetic diseases. Such combinations often lead to physically or mentally deformed children as well.viii Over time, it was noticed that such children were more common in marriages between two people who were closely related to each other, and so the concept of sapindas or prohibited degrees of relationships arose. Consider Section 3(f) of the HM Act, which defines sapinda relationship as extending as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth
(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 and holds that two persons are said to sapindas of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them. Section 3(g) of the Act goes on to clarify the conditions under which two persons are said to be within the "degrees of prohibited relationship". Interestingly, this is not just a concept present under Hindu law. Under Section 2(b) of the Special Marriage Act, 1954, there is a clear definition of what the degrees of prohibited relationships for marriage are. The First Schedule of the enactment helpfully lists the relationships that are considered out of bounds. Let us break this concept down a little to understand it further. A lineal ascendant is just the opposite of a descendant: it is someone who comes above you in a family tree. Simply put, make a family tree and start counting off three generations (or five generations)
upward from the person in question all the people you have ticked off are sapindas of the person in question. They cannot marry any of these people, or anyone who also has any one of these people as a sapinda. Let us look at an illustration to understand this better. Illustration: In the family tree provided below, the line of ascent for Akshay is through his father, Jeetu. So, we can count up four generations (which is less than five through the father): 1. Akshays generation
can count up four generations (which is less than five through the father): 1. Sonams generation 2. Anils generation 3. Ranis generation 4. Ravis generation
We clearly hit upon Ravi as a common lineal ascendant for both A 2. Jeetus generation 3. Sureshs generation 4. Ravis generation. and Sonam, and so, they are sapindas of each other. Therefore, they are considered to be within the prohibited degrees of relationship, and a marriage between them is not permissible under Hindu Law.
Akshays grandfathers sister is Rani, whose granddaughter is Sonam. Again, her line of ascent is through her father (Anil), so we
Please note that questions from this area of law appear without fail in law school examinations. Students are usually asked to identify if the marriage between two parties is permissible under Hindu Law. The Interactive Session for this Block will help you answer such questions better. However, keep a few simple steps in mind while answering examinations: Always make a family tree this helps you visualise the answer and relate it to the sometimes confusing text of the enactment. If calculation of the prohibited degrees of relationship is proving too difficult, just refer to the First Schedule of the Special Marriage Act. It lists down the relationships that are not permissible, and they are, by and large, the same for Hindu Law. This might save you some time in an exam. Make sure you refer to all the relevant sections of the HM
Act generally, Sections 3, 5, and 11 will have to be explained in some detail to get full marks in the question.
Unit 4: The ceremony of marriage The concept of marriage There is a debate as to what the nature of marriage is in India: is it a sacrament or a contract? The Hindu view on marriage is that it is necessary, both for fulfilling ones dharma and for satisfying ones carnal desires (kama). There are certain reasons why it is considered to be a sacrament, rather than a civil contractix: It is considered permanent and irrevocable a husband and wife are considered bound, even beyond death. It is for this reason that widow remarriage was, for so long, not recognised in large parts of the country. It is considered a holy union the marriage is characterised by essential religious rites and rituals, without which it is not considered complete. The consent of the parties is not very relevant arranged marriages are prevalent across the country and, in some
cases, the consent or participation of the bride and groom is irrelevant.It is the families that make the match.
These reasons may lead us to think that marriage is more a religious union rather than a civil union. But certain aspects the requirement of valid consent under Section 5 of the HM Act, the recognition of divorce and widow remarriage, and the acceptance of new grounds for divorce such as irreparable breakdown of marriage and mutual consent lend credence to the view that marriage is nowadays akin to a social or civil contract.x In conclusion, it can be said to be neither one nor the other in entirety.It has aspects of both a sacrament and a contract.
Forms of marriage The Hindu texts describe certain forms of marriage that are considered acceptable. In our modern world, some of these seem anachronistic and odd; when trying to understand them, you must
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keep in mind that the mores of ancient India were completely different, and that a lot of rites and rituals get somewhat lost as they are rewritten and passed down over the years. Manusmriti, or the Laws of Manu, describes eight kinds of marriagexi:
Rite of the Prajapati - (Prajapatya) where the father gives away his daughter after blessing the couple with the text May both of you perform together your duties
Rite of the Asuras when the bridegroom receives the bride after bestowing wealth to her kinsmen and to the bride herself according to his own will.
Rite of Brahmana (Brahma) where the father of the bride invites a man learned in the Vedas and is of good conduct, and gives his daughter in marriage to him after decking her with jewels and costly garments.
Rite of the Gandharva the voluntary union of a maiden and her lover, which arises from desire and sexual intercourse for its purpose.
Rite of the Gods (Daiva) where the daughter is groomed with ornaments and given to a priest, who duly officiates at a ritual of sacrifice during the course of the performance of this rite.
Rite of the Rakshasa when the bride is forcibly taken from her home and from her family.
Rite of the Pisaka when a man forces himself on a girl who is sleeping or intoxicated or is mentally unbalanced or handicapped.
Rite of the Rishis (Arsha) when the father gives away his daughter after receiving a cow and a bull from the bridegroom.
marriage. The Act does not specifically forbid any form of marriage, with the passage of time,some forms of marriage such as the Rakshasa or Pisaka marriage have fallen out of practice. Section 7 of the Hindu Marriage Act provides that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party (and specifies that where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken). So the marriage may be solemnised as per the customs of the community.For instance, a community may provide for a mere exchange of garlands, while another may require a more elaborate yajna ritual. The Act takes into account these differences.
A Hindu marriage being solemnised. Image above has been taken from skapoors photostream on Flickr, here. CC BY SA-2.0.
The Act is very clear on one point, however.As per Section 5, any two Hindus can perform a valid marriage. So,it is clear that the enactment lays down no bar on inter-caste marriage.As long as the two parties are Hindus (as defined in the first Unit), they can marry
The HM Actdoes not provide for any specific form of marriage, but recognises the various rites and rituals connected with a Hindu
each other. If a Hindu resident in India wants to marry someone
who is not of the same religion, they will have to get married under the Special Marriage Act, 1954.Their marriage will not be valid if conducted under the HM Act. We will consider the operation of the Special Marriages Act in a later Block.
Conclusion In this Block, we have studied the basics of the Hindu Law with respect to marriage. Personal laws can be a complicated topic, which you may find confusing.So, it is essential that you get a good understanding of the basics first. Knowing all the people that Hindu Law applies to, and what the sources of Hindu Law are, helps us understand how to apply personal laws to Hindus in the modern context. We have also studied some topics that are covered in examinations: what are the degrees of prohibited relationships, which are the kinds of marriages recognised by Hindu law, and the nature of marriage in Hindu law itself. In the next Block, we will study the validity of marriages under the HM Actand study which marriages are void or voidable. -x-x-
Selected Reading Books A.M. Bhattacharjee, Hindu Law and the Constitution, 2nd ed., Eastern Law House, 2005. ParasDiwan, Modern Hindu Law, 17th Ed., Allahabad Law Agency, 2006. Maynes Treatise on Hindu Law and usage, J. Ragannath, Ed., 15th ed., Bharat Law House, 2003. Mulla, Principle of Hindu Law, Vol-I, S.A. Desai, Ed., 19th ed., Lexis NexisButterworths, 2005. PoonamPradhanSaxena, Family Law Lectures: Family Law I, 2nd ed., 2007.
Jurisprudence vis-a-vis Modern Indian Jurisprudence, AIR 2008 Journal 65.
Articles Justice (Retd.) MarkandeyKatju, Ancient Indian
PoonamPradhanSaxena, Family Law Lectures: Family Law I, 2nd ed., 2007. (1959) 61 Bom L.R. 1016. iii AIR 1971 SC 2352. iv 1975 KLT 55. v DebanshuKhettry, Sources of Hindu law, available athttp://legalservicesindia.com/article/article/sources-of-hindu-law-329-1.html. vi Id. vii Id. viii See generally: Gonzalo Alvarez et al, The Role of Inbreeding in the Extinction of a European Royal Dynasty, available at http://www.plosone.org/article/info:doi/10.1371/journal.pone.0005174. ix Report of the Law Commission of Bangladesh on the Uniform Family Code, x Supra note i. xi Subhamoy Das, Types of Hindu marriage, available athttp://hinduism.about.com/od/matrimonial1/a/typesofmarriage.htm.
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COURSE

1 - Introduction to Family Law - Marriage, Divorce, and Guardianship

1 - Introduction to Hindu Law

The following are considered to be the sources of Hindu law:

each other. If a Hindu resident in India wants to marry someone

Jurisprudence vis-a-vis Modern Indian Jurisprudence, AIR 2008 Journal 65.

Articles Justice (Retd.) MarkandeyKatju, Ancient Indian

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