Family Law-1

Answer 1

Valid marriage:

A marriage is valid under Hindu Marriage Act if it satisfies the conditions given under
section 5 of Hindu Marriage Act, 1955.  One such condition is that at the time of marriage
neither party has a spouse living or an existing valid marriage. If at the time of second
marriage, any party has a spouse living or the earlier marriage has not been set aside by way
of a decree of divorce/annulment, then such a second marriage is illegal.

Thus second wife Pydamma will not inherit the property of Suryanarayana, the children out
of this marriage will be considered illegitimate though they can have a claim over their
father’s property.

As per the law, in case a person dies interstate, his property moves or can be claimed by his
Class-I heirs that include:

 Son
 Daughter
 Widow
 Mother
 Son of a predeceased son
 Daughter of predeceased son
 Widow of predeceased son
 Son of a predeceased daughter
 Daughter of predeceased daughter
 Son of predeceased so of predeceased son
 Daughter of predeceased son of a predeceased son
 Widow of predeceased son of a predeceased son
In the absence of the above, the property moves to the Class-II heirs that include:

 Father
 Son's daughter's son, (2) son's daughter's daughter, (3) brother, (4) sister
  Daughter's son's son, (2) daughter's son's daughter, (3) daughter' daughter's son, (4)
daughter's daughter's daughter.
 Brother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter.
 Father's father; father's mother.
 Father's widow; brother's widow.
 Father's brother; father's sister.
 Mother's father; mother's mother
 Mother's brother; mother's sister.
In the case of a legal second marriage, the property can be claimed by children of the second
wife, too. However, if it happens when the husband has not divorced his previous wife or the
wife is living and the man remarries, the second marriage is taken to be null and void. The
children born of this second union must be maintained by the parents but they are not
preferred inheritors or coparceners.

However, the Supreme Court has opined that children born of a second marriage can claim
father's property even if the marriage itself might be void. But, the second wife cannot claim
the property in case the marriage was solemnized when the first wife was living or wasn't
divorced. 

Second wife’s children’s right to father’s joint property

The right of children of the second wife:

 In case, the second marriage is a valid marriage, children born out of this wedlock
share equally with the children of the first wife.
 Even if the second marriage is void or voidable under the Hindu Marriage Act, the
children of the second marriage are considered as legitimate children, and they have a right
to inherit from the property of their father.
 However, under section 16 of the Hindu Marriage Act, such children have a right to
inherit the property of their parents alone.
 They can inherit the property of their father, whether self-acquired or ancestral but not
the ancestral joint family properties. It implies that they cannot inherit ancestral property
other than the share of their father in the ancestral property.
 The law says that the children of the second wife have equal rights as the children of
the first wife on their father’s (self-acquired and ancestral) property. 

Answer 2

Prior to the enactment of the Dissolution of Muslim Marriages Act, 1939 (DMMA),
conversion of either spouse had the effect of automatic dissolution of the marriage under the
Muslim personal Law. The present law however. is different and it makes a difference
between a Muslim wife who was before her marriage a non-Muslim and a wife who was a
Muslim before marriage. In the former case, the conversion of the wife would result in instant
dissolution of the marriage. In other words, if a woman converts to Islam from some other
faith and then re-embraces her former faith, then it will have the effect of immediate
dissolution of her marriage.  To take an example. a Muslim male marries a woman who was a
Hindu prior to marriage but she Converts to Islam and gets married. After sometime, she
renounces Islam and converts to Christianity. This will not ipso facto dissolve the marriage,
because she has not re-embraced her former faith, viz., Hinduism. Had she re-embraced
Hinduism, it would have had the effect of immediate dissolution of the marriage bond. Thus,
in Munavvar-ul-Islam v. Rishu Arora, a Hindu wife converted to Islam at the time of
marriage. On her re-conversion back to her original faith viz Hinduism. Her marriage stood
dissolved. Her case falls under the second proviso to s. 4 of the Act, and the pre-existing
Muslim Personal Law under which apostasy of either party to a marriage ipso facto dissolves
the marriage, would apply.

In the case of a Muslim married woman, her renunciation of Islam or her conversion to a faith
other than Islam shall not by itself operate to dissolve her marriage. Thus, if she remarries
before the dissolution of her marriage, she can be prosecuted. Bigamy. However, even after
such reconciliation or conversion, the woman is entitled to obtain a decree for the dissolution
of her marriage on any of the grounds mentioned in s. 2 of the Act, viz, unknown
whereabouts of the husband, neglect, imprisonment of husband, failure to perform marital
obligations, impotency, insanity, and cruelty. She can also exercise her option of puberty by
repudiation of the marriage. The husband's apostasy is not a ground on which she may seek
dissolution.
If a husband renounces Islam, the marriage stands automatically dissolved. Thus if his wife
remarries even before the expiry of iddat, she will not be guilty of bigamy under s.494 of the
Indian Penal Code, 1860. in Abdul Ghani v/s Azizul Huq. a Muslim man and woman got
married. After sometime, the husband embraced Christianity but reverted to Islam during the
wife's iddat. Before the expiry of the iddat period, however, the wife got married to another
man. The first husband thereupon filed a complaint against the wife, her father and her
second husband under s.494. It was held that no offence had been made.

The court remarked:

Whatever view be taken of the uncertain status of the parties during the period of iddat and
however illegal and void under Mohammedan law the second marriage of the woman during
the period of iddat may be, there is no foundation for any charge under. s 494 of IPC against
her. Her second marriage is not void by reason of its taking. Place during life of prior
husband but by reason of special doctrine of the Mohammedan law of iddat with which the
Indian Penal Code has nothing to do.

The present case is similar to another incident in which the woman complained about forceful
conversion by his husband and family. The term force can be construed in various ways,
however, a clear interpretation was drawn by the Orissa High Court in Yulitha Hyde v. State
of Orissa. It was held that the “threat of divine displeasure numbs the mental faculty; more so
of an undeveloped mind and the actions of such a person thereafter, are not free and
according to conscience amounts to force. 

In the present case, an eminent point shall be taken into consideration which is the signatures
obtained by the man was without complete knowledge of the woman. The purpose was
concealed by the man which shows malice in his intentions thereby proving mens rea.
Moreover, his contention of the marriage being a valid one he stands as vague since the very
essential condition for a marriage being valid under muslim law is proposal and acceptance
which has not been the case in the present scenario. Therefore, as per the personal laws and
the punitive legislations, Anita shall succeed in challenging the validity of the alleged
marriage.      
Answer 3

Introduction

In India, marriage is given a sacramental position. Parties to a marriage carry loads of hopes
and dreams relating to their life after marriage and their happiness. But many a times things
don’t work out as thought and thus parties find disagreements and quarrels between them,
making them decide to go for divorce. When one of the spouses feels that there was nothing
wrong but just some silly matters that spouse files an application for Restitution of Conjugal
Rights in order to start a new start.

Provision for Restitution of Conjugal Rights under the Hindu Marriage Act

Hindu Marriage Act, 1955 (Section 9) says If either the husband or the wife, without
reasonable excuses, withdraws from the society of the other, the aggrieved party may
approach the Court for restitution of conjugal rights.

The term Conjugal Rights could be placed against any of the spouses guilty of staying away
from the other party without a proper reason. If the suit succeeds then the couple would be
needed to stay together.

The decree of restitution of conjugal rights cannot be actioned by forcefully making the party
who has gone away from the society from the other party to live with the one who sets
petition for restitution.

Constitutional Validity of Section 9

The constitutional validity of the provision has been debated time and again. The earliest
instance was the case of T. Sareetha V. Venkata Subbaiah, before the Andhra Pradesh High
Court, in 1983. It was argued before the court that the provision was against the individual’s
Fundamental Right to Liberty, Privacy and Dignity guaranteed by Article 21 of the
Constitution.

Further, it was argued that by virtue of being available to both husbands and wives, who are
inherently in unequal positions, the provision was violative of the Right to Equality by
violating the rule of equal protection of laws. The court agreed with these arguments and held
that, in effect, the decree compelled an unwilling wife to have sexual intercourse with her
husband, thereby violating her bodily autonomy. The court thereby struck down Section 9 of
the Hindu Marriage Act, declaring it to be violative of Article 14 and Article 21 of the
Constitution.

Subsequently, the question was put forth before the High Court of Delhi in the case of
Harvinder Kaur V. Harmander Singh, less than a year later, but here, the aforementioned
Andhra Pradesh High Court judgment was dissented from. Ultimately, the Supreme Court, in
the judgment of Saroj Rani V. Sudarshan Kumar Chadha, resolved the conflict between the
two judgments by upholding the views put forth by the Delhi High Court, stating that the
objective of the decree was only an inducement for the spouses to live together, and that it did
not force an unwilling wife to engage in sexual relations with the husband. The aim was only
to bring about "cohabitation" between spouses, and therefore, it was only focused on
"consortium".

The remedy of restitution of conjugal rights violates a person's extremely basic essence, their
very being, by dictating their decision on who to reside with. Both spouses in a marriage are
not always on an equal footing, and in our country, which is immensely patriarchal, the wife
is mostly — socially as well as economically — dependant on the husband. In fact,
practically, in India, the remedy of restitution of conjugal rights is generally used by
husbands to strong-arm their wives into submitting themselves to their company, and as a
shield against possible cruelty and domestic violence cases by the wives.

Conclusion

The remedy of restitution of conjugal rights has been criticised by leading jurists and
sociologists and has been abolished in major countries including the UK, Ireland, Australia
and South Africa. It is high time that India followed suit.

The aid of Restitution of Conjugal Rights necessitates both marriage parties to live together
and cohabit. But this measure has also been misused many times, disturbing the Right to Life,
Right to Privacy and the Right to Equality and therefore is unconstitutional.

Many people use this measure to threaten their spouse so that their spouse will take their case
back or will agree to accept the unacceptable monetary losses.

Some feel it is to preserve the marriage while some say that there is no meaning in forcing the
other party to stay with the aggrieved party as they are not at all interested. It is very
important to note that this remedy is not being misused.
Answer 4

Introduction

It is an accepted fact in the present world that domestic violence in any household,
relationship, living-in partners, and marriage should be construed as violation of human
rights.

Domestic violence in general includes harms or injuries, which may injure health, safety, life
of the aggrieved person with an intention to force her to meet any unlawful demand by the
accused including dowry, etc. However, domestic violence is not limited to mere abuse by a
man, physical or mental, even failing to look after any woman in a relationship with him by
not providing clothe, food or shelter deliberately will also be termed as domestic violence
under the act.

Misuse of Domestic Violence Act,2005

Under the Domestic Violence Act, 2005 the magistrate orders protection of such women by
ordering for maintenance, etc. The magistrate is also empowered to pass ‘protection orders’
in favour of the complainant so as to protect him/her from being further abused by the
accused. Non-governmental organizations help in aiding the aggrieved with medical help,
legal aid, safe shelter, etc.

There have been situations wherein the provisions of the act is misused and abused by the so-
called victims. In other words, the provisions of the act does not afford the accused to explain
his stand for the simple reason that even if the woman is living separately from him, she can
still accuse her husband or anyone claiming under him of continuing to threaten her and so
on. Since the provisions of the act have a presumptive value, most of the time, the accused is
left defenceless.

Earlier there was reluctance amongst the Indian women who used to experience domestic
violence to report or prosecute against such genre of crimes. Domestic violence was often not
handled as a substantial crime or complaint, but more of a personal or family matter. But now
this trend has changed. Section 498-A introduced to protect women from domestic violence is
the most misused law in India and accounts for the most suicide cases among men in India.
It is also observed that Section 498-A IPC which is a very potent weapon and is often
misused by women to wreak havoc on husband’s family and by police to make money. There
have been plethora of instances wherein the misuse of Sec 498 has been witnessed.

Judgements Showing Misuse of Domestic Violence Act

There have been various cases which the Supreme Court has observed misuse of Domestic
Violence Act and have condemned the same.

In Sushil Kumar Sharma v. Union of India, the Supreme Court held that mere misuse of
provision of law does not per se invalidate legislation. But it also accepted that in many
instances, complaints under Section 498-A were being filed with an oblique motive to wreck
personal vendetta and clearly said that it is for the legislature to find ways on how to deal
with misuse of this law as well as on how to wipe out the ignominies suffered during and
after the trial by the falsely accused. It also condemned the misuse of Section 498-A IPC by
stating that it amounts to unleashing legal terrorism.

In Saritha v. R. Ramachandra also, the court did notice that the reverse trend and asked the
Law Commission and Parliament to make the offence a non-cognizable and bailable one

The hon’ble Supreme Court in Mohd. Hoshan v. State of A.P., observed as:

Whether one spouse has been guilty of cruelty to the other is essentially a question of fact.
The impact of complaints, accusations or taunts on a person amounting to cruelty depends on
various factors like the sensitivity of the victim concerned, the social background, the
environment, education, etc. Further, mental cruelty varies from person to person depending
on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty.
Each case has to be decided on its own facts whether mental cruelty is made out.

Conclusion

The inclusion of the Domestic Violence Act has helped numerous people; however, the
society still condemns women who have to live in the society separate from their husbands.
These sections of women are generally underprivileged and downtrodden and do not have the
audacity to file a complaint yet. It is the educated women who misuses the Act.
Answer 5

Divorce under Muslim Law

There are various modes of divorce which are adopted under the Muslim Law for the purpose
of dissolution of marriage. They can be divided into the following categories: -

a. By the husband
b. By the wife
c. By the mutual consent of both the parties
d. Under the Dissolution of Muslim Marriage Act, 1939

A. By the Husband

There are four modes available before a husband for dissolving the tie of marriage:

♦ Talaq- ul- Sunnat

This form of talaq is effective in accordance with the traditions established by the Prophet. It
is further divided into two parts:-

 Ahsan

It is known as the best form of talaq as the name clarifies the same. The procedure followed
by the husband is as follows –

He has to make a pronouncement of divorce in a single sentence, such pronouncement must

be made in a purity state(when a woman is free from her menstrual cycle). A husband must
not indulge in any form of sexual intercourse during the iddat period(period of chastity a
Muslim woman is bound to observe after the dissolution of marriage, either by the death of
her husband or by divorce) and if he does so, then it will be considered as implied revocation
of talaq. It is pertinent to note that once the iddat period has expired, the divorce becomes
irrevocable. When the partners have not consummated, talaq-e-Ahsan can be pronounced
even if the wife is in her menstruation.

 Hasan

The Arabic meaning of Hasan is good, therefore divorce pronounces through Hasan mode is
a good but lesser worth than the one pronounced in Ahsan. Husband has to make three
successive pronouncements for divorce. In the case of a menstruating wife, such three
pronouncements should be made in three consecutive tuhr(state of purity). In the case of a
non-menstruating wife, pronouncement should be made at three successive intervals of 30
days.

No sexual intercourse should take place during these periods of three pronouncements and if
such an act takes place then the process of divorce will be revoked.

Talaq Hasan becomes irrevocable on the third pronouncement irrespective of iddat period.

♦ Talaq-ul- Biddat

This form of talaq is introduced by “Umayyads” in order to escape from the strictness of
Law. This is a sinful form of talaq, as it is recognised among the Hanafis. Sunni law
recognises this mode of talaq, though recognised as sinful by that too. Whereas Shias and
Malikis do not recognise this mode.

Three pronouncements made in a single tuhr either in a single sentence or in separate

sentences eg. “Talaq, talaq, talaq” or “I divorce thee, I divorce thee, I divorce thee.”

Single pronouncement clearly indicates an intention to dissolve a marriage and makes it

irrevocable. It is usually pronounced as – “I divorce thee irrevocably”.

Partners separated through triple talaq can’t remarry without the formality of the woman
marrying another man and getting divorced from him, this process is called Nikah Halala.

In the recent judgement of Shayara Bano V. Union of India And Others, Supreme Court of
India declared that the practice of triple talaq is unconstitutional, as this form of Talaq is
violative of the fundamental right provided under Article 14 of the Constitution of India.

♦ Ila (Vow of Continence)

The situation wherein a husband who is of sound mind and has attained the age of majority
swears in the name of God that he will not have sexual intercourse with his wife and leaves
her to observe iddat, he is said to make Ila. If the husband resumes sexual intercourse within
the iddat period being observed by wife, it will lead to cancellation of Ila It is pertinent to
note that Ila is not practised in India.

B) Talaq by the wife

Divorce given by wife under the husband’s delegated power.

Talaq-e-tafweez

This is the only way through which a woman can give divorce to his husband, however, such
power to give divorce needs to be delegated by the husband only. It is a form of an agreement
made either before or after marriage providing that wife will be privileged to get separated
from her husband via divorce under the specified condition as :-

 In case the husband marries a second wife

 The husband is unable to maintain her for a specified period of time any other
condition that must not be opposed to public policy.
 If the conditions agreed in the agreement by the husband are well practised by him
then, the wife without any prejudice to Law can dissolve her marital ties.
 The fact that husband delegates the power to the wife does not dispossess him of his
right pronounce talaq.

C) Divorce by Mutual Consent

Although the practice of giving Divorce by mutual consent was not recognised in the Muslim
Law, it was only available to the Muslim women after the enactment of Dissolution of
Muslim Marriages Act, 1939.

♦ Khula

The literal meaning of khula is “to lay down” before the law. The husband lays down his
right over his wife. It signifies an arrangement entered into to dissolve a connubial
connection in lieu of compensation paid by the wife to her husband out of her property,
everything that can be given as dower. Khula is a divorce with mutual consent and at the
instance of a wife in which she agrees to give some consideration to her husband. It is
basically a “redemption” of the contract of marriage.

Essentials

 There must be an offer from the wife’s side

 Offer must be accepted by the husband with the consideration for it.
 Observance of the iddat period is necessary.

Under Shia law, husband can’t revoke divorce once accepted whereas the wife has been
given the power to reclaim the consideration during the iddat period.
 ♦ Mubarat

It signifies mutual discharge from the marital tie. The most essential element is that the
mutual consent of both the partners is required in regards to the dissolution of marriage.

In this mode of divorce-

 Offer can be made from either of the sides.

 Acceptance of offer makes divorce irrevocable.
 Iddat is necessary

Under Shia law, parties can dissolve their marriage, if it is not possible for them to continue
their marriage by way of mubarat.

D) Dissolution of Muslim Marriage Act, 1939

Under the Dissolution of Muslim Marriage Act, 1939 a marriage can be dissolved in the
following ways when the conditions prescribed are fulfilled.

 Lian

Lian can simply be described as the wrong charge of adultery on wife by her husband.
Whenever a husband imposes false adultery charges on his wife, then a wife can sue him and
can also obtain a divorce on the same ground under the Act, by filing a regular suit for
dissolution of marriage. In case of Zafar Husain V. Ummat – ur – Rahman, Allahabad High
Court held that a wife under Muslim law is entitled to file a suit against her husband for
dissolution of marriage and can obtain decree on the ground that she was falsely charged with
adultery by him. The essentials that are to be fulfilled are as follows: -

a) A husband must be adult and sane.

b) He charges his wife of adultery.
c) Such a charge must be false.
d) False charges do not ipso facto (by that fact itself) dissolve the marriage, it just
provides a ground to the wife to move to the court to dissolve the marriage.
e) Marriage will continue until the decree for dissolution of marriage is passed by the
court.
f) Judicial separation via mode of lian is irrevocable.
 g) This mode is applicable only to Sahih marriages not on fasid ones.

Retraction can be made by the husband before the end of the trial, admitting that he made the
charge of adultery against her wife and such charge was false.

 Faskh
Quran says that husband and wife are duty bound to respect each other and treat each other
respectfully and obey all lawful orders of each other. If both of them find that they can’t live
as husband and wife further, they can approach qazi who after careful examination may
terminate their marriage.

Section 2 of Dissolution of Muslim Marriage Act, 1939 states nine grounds on which a
Muslim wife can obtain a decree of divorce: -

♦ Absence of Husband– whereabouts of the husband are not known from the past four
years. Dissolution of marriage decree on this ground will take effect after six months
from the date of such decree is passed, and during that period if the husband appears
in person or through an authorizes agent. Court if satisfied from same may set aside
the said decree.
♦ Failure to maintain- If a husband fails to provide maintenance to his wife for two
years. There is no defence available before husband on the ground of poverty, failing
health or unemployment.
♦ Imprisonment of a husband- If the husband is imprisoned for seven years or more.
♦ Failure to perform marital duties- If, without any reasonable cause, the husband is
unable to perform his marital obligations for three years.
♦ Impotency of husband- husband was impotent at the time of marriage and continues
to be so. If the husband within one year from the date of the order obtained by wife
for dissolution of marriage on the grounds of impotency on application satisfies the
Court that he ceased to be impotent. If the husband satisfies the court, then no decree
shall be passed on this ground.
♦ Insanity, leprosy or venereal disease- If the husband is insane or suffering from
leprosy, or any venereal disease from a period of two years, judicial divorce by wife
can be claimed on the same ground.
♦ Repudiation of marriage by wife- If a girl is married before the age of 15 years by her
father or guardian, then under Muslim law she has been provided with a right to
 repudiate such marriage after attaining the age of 18 years provided that marriage is
not consummated. She is entitled to a decree of divorce for same.
♦ Grounds of dissolution recognised by Mohammedan Law- Wife is also entitled to
obtain a divorce on the ground recognised valid under the law.
♦ Cruelty by husband- if the husband treats his wife with cruelty, then she can approach
the Court and claim for a decree of judicial separation on the same ground.

Short Notes

Muta Marriage

Introduction

Muta marriage is a temporary marriage. Muta marriage is recognized in Shia only. Sunni law
doesn’t recognize it. (Baillie, 18). A Shia of the male sex may contract a Muta marriage with
a woman professing the Mahomedan, Christian or Jewish religion, or even with a woman
who is a fire worshipper but not with any woman following any other religion. But a Shia
woman cannot contract a Muta marriage with a non muslim.

Features of a Muta Marriage

The features of Muta marriage are: -

 The parties must have attained the age of puberty, which is above 15 years of age.
 There is no restriction on the number of Muta wives.
 There must be free consent by the parties. The time period and Dower must be
mentioned in the nikahnama.
 The cohabitation between the parties is lawful.
 The children born out of such marriage are legitimate and have the right to inherit the
properties of both the parents.
 The husband and wife don’t have any mutual right of inheritance.
 Muta wife is not entitled to claim maintenance under personal law, but she can claim
under Section 125 of Criminal Procedure Code.
  The wife is entitled to get full Dower if the husband cohabits, but if the husband
doesn’t cohabit, then the wife is entitled to half dower.
 Divorce is not recognized under Muta Marriage.

Termination of Muta Marriage

Muta Marriage can be terminated by one of the following reasons.

1. Expiry of time period.

2. Death of either party.
3. Hiba I Muddat, that is, husband gifts the unexpired term of the marriage.

Sources of Hindu Law

Introduction

Hindu law is considered to be the most ancient and prolific law in the world. It has been
around every phase. It is about 6000 years old. Hindu law has been established by the people,
not for the purpose of removing any crime or transgression from society but it was
established so that the people will follow it in order to attain salvation. Originally Hindu law
was established so that the need of the people gets fulfilled. The concept was initiated for the
welfare of the people.

There is the two-fold classification of the sources of the Hindu law

♦ Ancient sources
♦ Modern sources

Ancient source

Ancient sources are the source that developed the concept of Hindu law in ancient times. It is
further classified into four categories

a. Shruti
b. Smriti
c. Customs
d. Digest and commentaries
  Shruti

The term Shruti means what has been heard. It contains the sacred words of the god. This
source is considered to be the most important and essential source of all. Shruti’s are the
sacred pure utterance that has been enshrined in the Vedas and the Upanishads. They have
religious nexus with a person and helps him in a way to attain the knowledge of salvation and
incarnation. It is considered to be the primitive source containing the knowledge of the law.

 Smritis

Smritis are considered as text which has been remembered and then interpreted by the rishis
throughout the generation.

 Commentaries and digest

The third ancient source of Hindu law is commentaries and digestives. Commentaries and
digestives have expanded the scope of Hindu law. It played a very major role in developing
the very concept of Hindu law. It helped in the interpretation of the smritis. Single
interpretation of the smritis is called as a commentary while different interpretations of the
smritis is known as digestive. Dayabhaga and Mitakshara are considered to be the two most
important commentaries.

 Customs

Customs is the tradition that has been practiced in society since ancient times. It is the type of
practice which is under the continuous observation of the people has been followed by the
people. Further, the customs have been classified into two categories-

♦ Legal customs

Legal custom is those customs which are enforceable or sanctioned by law. It can’t be
deemed invalid until the law itself declares it invalid. There are two types of legal customs.

Local customs- Local customs are the customs that are practiced in a local area. This type of
custom is not highly recognized.

General customs- General customs are the customs or traditions which are practiced in a large
area. This type of custom is highly recognized by people.
 ♦ Conventional customs

Conventional customs are customs that are related to the incorporation of an agreement and it
is conditional.

Following are the essential points which constitute a custom-

 A customs must be continuous in practice

 A custom should not be vague or ambiguous
 A custom must have time antiquity
 There must be a complete observation of the custom
 It should be certain and clear
 A custom must not oppose the public policy which will affect the interest of the
general public.

Deivanai Achi V. Chidambaram

In the instant case it was held that in order to become legally sanctioned by law and binding
on the people a custom must be continuous in practice, it should not be vague and ambiguous
and should not oppose the well-established public policy. A customary rule must be in the
complete observation of society.

Modern sources

 Judicial Decisions

Judicial decisions are considered to be the most important ingredient of modern sources.
Judicial decision is considered to be authoritative and binding. The doctrine of precedent was
established and it was applied in the cases resembling the same facts and circumstances of a
case already decided.

The legislation is considered to be the codification of customs which plays an essential role in
expanding the concept of Hindu law. Legislations are enacted by the parliament.

 Justice equity and good conscience

Justice equity and good conscience is the basic rule of law. This rule of law applies when an
existing law doesn’t apply in a case before the court decides the particular matter by applying
its rationality and the concept of justice equity and good conscience.
This rule is considered to be the fairest and reasonable option available to a person.

In Gurunath V. Kamlabai the supreme court held that in the absence of any existing law the
rule of justice equity and good conscience was applied.

 Legislation

The legislation is considered to be the most important source of Hindu law. It is considered as
a base for the growth of Hindu law in the modern world. It has been stated that in order to
meet the new conditions of the society it became a necessity to codify the law.