HINDU LAW IS NOT LEX LOCI BUT A PERSONAL

LAW

A PROJECT SUBMITTED TO

ARMY INSTITUTE OF LAW, MOHALI

BY
JANNAT HAYER (1968)

UNDER THE GUIDANCE OF

Dr. AMRITA RATHI

In partial fulfilment of the requirement of B.A L.L. B (3rd

Year degree)

PUNJABI UNIVERSITY PATIALA (PUNJAB)

July 2021 to December 2021

DECLARATION

It is certified that the project work is presented on the topic ‘HINDU LAW IS NOT LEX
LOCI BUT A PERSONAL LAW’. It embodies the results of original research work carried
out by me. All the ideas and references have been duly acknowledged.

Date of Submission: 07.08.2021 Name: JANNAT HAYER

Place: Mohali, Punjab. Roll No.: 1968
ACKNOWLEDGEMENTS

I would like to thank my teacher Dr. Amrita Rathi for giving me this opportunity of making
this project. I would also like to thank my college Army Institute of Law, Mohali for
providing me with the resources to carry out the research and make this project. I would like
to extend my grateful attitude towards my parents, friends and family for their continuous
support. Last but not the least I thank the Almighty for all his blessings.

Name: Jannat Hayer

Roll No.: 1968
HINDU LAW IS NOT LEX LOCI BUT A PERSONAL LAW
INTRODUCTION
India is a country which abounds in personal laws, with each community having its own
personal laws. The Hindus who are the majority community have their own family law and so
do the Muslims who are the largest minority in our country. Even the Christians, Jews and the
Parsis whose numbers in the context of India’s population are very small also have their own
separate family laws. Even though all of these communities are religious but it is not
necessary that their personal law is also religious.
It is also not a requirement for the application of a personal law that the members of the
community should be ardent believers or followers of that religion. Mostly, if the person is a
member of the community by birth or by conversion, that will suffice even though in actual
persuasion he may be atheist, or non-religious, non-conformist, anti-religious or even decry
his faith. So long as he does not give up his faith and embrace another religion, he will
continue to be governed by the personal law of the community to which he belongs.

ORIGIN OF HINDU LAW

The Hindu system of jurisprudence is a well-developed science. It is as old as humanity itself.
It is the store house of ancient wisdom, inherited from holy sages, philosophers, saints and
thinkers whose ideas were derived from imperishable Vedas and who can literally be
described as the torch bearers of learning and knowledge to the rest of the world as it then
existed. It has been agreed by JD Mayne that Hindu law has the oldest pedigree of any known
system of jurisprudence in the world.
Law, according to Hindu jurists, is the enforceable part of Dharma. Law is Dharma itself.
Manu says, “The Vedas, Smriti, the approved usage, and what is agreeable to one’s soul or
good conscience, when there is no guide the wise have declared to be the quadruple, direct
evidence of Dharma or law.
According to Hindu Law, the law is identified with dharma and is supposed to have its origin
from the god itself. The king and its subjects are equal in the eyes of law. The ultimate aim of
life, as per Hindu law is to attain salvation (moksha). Since it is a commonly believed that
human body is mortal but the soul is immortal. When a man dies, his soul acquires a new
form, and this cycle continues until that very man attains moksha from the world. There are
four goals of human life, i.e., Artha, Dharma, Kama, Moksha out of which dharma stands
foremost.
According to Hindu law, the law is enforceable part of dharma. It has been believed that the
law does not emanate from the sovereign. He (king) himself is not exempt from the law. He
has to perform his duties as mentioned in the Smritis. The term dharma includes all kinds of
rules whether religious, legal, physical, metaphysical. Dharma is what is followed by learned
class, as per Vedas, and what is approved by those who are free from hatred and inordinate
affections.
According to JD Mayne, “Hindu law is the law of smritis as expounded in Sanskrit
commentaries and digests, that is modified by customs, and is administered by courts.
There are two extreme views as regards the origin of Hindu Law.
1. Divine theory
2. Western or European theory

DIVINE THEORY
According to this theory, Hindu law has its origin from the divine sources. It is supposed to
have originated from the Vedas that themselves are the revelation from the Almighty and
which Austin calls the laws of God. The one who disobeys law would incur the displeasure of
God and has to suffer in the nest world. Hindu law is considered Apauruseya. “Since law is
the king of kings, far more powerful and rigid than they, nothing can be mightier than the law
by whose aid, as by that of the highest monarch, the weak may prevail over the strong”. It is
therefore evident that the theory of Rule of law is not new to Hindus.
WESTERN OR EUROPEAN THEORY
According to western and European jurists, Hindu law is based upon immemorial customs
and usages that exist prior to the rise of Brahmanism.
When the Aryans penetrated into India, they found that there were a number of usages either
the same as, or not wholly different from their own. It has been believed that after Aryan’s
annexation of India, certain immemorial customs and usages that were either same or not
wholly different from the Aryan ones were accepted by them. They only rejected those that
are incapable of being assimilated, for example; polyandry, incestuous marriage etc.
Subsequently Brahmanism modified current customs by introducing a religious element into
legal conceptions firstly by attributing pious purposes to purely secular acts; secondly, by
adding restrictions to those acts suitable to those pious purposes; and thirdly, by altering the
customs themselves so as to further the special objects of religion or policy favoured by
Brahmanism.
Both the above views, according to Mayne are incorrect: He says that since the publication of
the original text books, translated Commentaries and Digests and the research works, it has
become quite evident that Smritis were in part based upon contemporary or anterior usages,
and in part, on rules framed by Hindu jurists and rulers of the country. They did not purport
to be exhaustive and, therefore, provided for the recognition of the usages which they had not
incorporated in later commentaries and digests. The commentators and digest writers were
equally the exponents of usages of their times in those parts of India where they were
composed. Both the ancient Smritis and the subsequent commentaries were evidently
recognised as authoritative statements of law by the rulers and by communities in the various
parts of India. They were mostly composed under the authority of the rulers and by
communities in the various parts of India. They were mostly composed under the authority of
the rulers themselves or by learned and influential persons who were either their ministers or
spiritual advisers. The prescribed courses of studies for the Brahmanas and Kshatriyas as well
as for the rulers of the country, obviously, the rules in the Smritis which were sometimes all
too brief were supplemented by oral instructions in the law schools whose duty it was to train
persons to become Dharma shastris.
The Hindu law cannot be said to strictly been promulgated by any sovereign. But in as much
as Hindu law is a body of principles or rules recognised and allowed by the sovereign to
govern the subjects and in as much as what a Sovereign can alter can be taken to have been
impliedly commanded by him, even Hindu law can be said, in a qualified sense, to have been
promulgated by the sovereign within the definition of Austin.
The first orthodox view on the origin of law was slowly changed to a certain extent, and the
conception of ‘positive’ as distinguished from ‘divine law’, presented to us by the
commentators have now generally been accepted as the origin of Hindu law.
It was prudent statesmanship to uphold the system of castes and orders of Hindu society, with
their rights and duties so as to prevent any subversion of civil authority. The dharma shastris
and the rules were therefore in close alliance and, if the laws were not substantially in
accordance with popular usages and sentiments it seems inconceivable that those most
interested in disclosing the facts should unite in a conspiracy to conceal it.

MEANING OF HINDU LAW

The term Hindu has been derived from the old Sanskrit word “Sindhu”. The term Sindhu was
used for the local residents of the North-Western part of the Indian subcontinent near the
Indus River. The Hindu law is a collection of personal laws that regulates the social affairs of
the members of the Hindu religion. These social affairs include marriage, adoption,
inheritance, partition and other family matters. In India, every religious group governs their
social affairs as per their own personal laws.
Indian legal system is unique. The system of law in India basically takes two forms:
1. The Territorial or General law
2. Personal law
Territorial or General law: This law makes general provisions for India. This is the law that
applies to all persons irrespective of their communities within a given territory.
Personal Law: This law applies to persons who are members of a particular religion. Thus,
the personal law makes provisions on subject matters which have not been covered in the
territorial law. Hinduism is a religion in India hence the existence of Hindu law.

HINDU LAW IS NOT LEX LOCI

Lex Loci is a Latin term which literally means ‘law of the land’1. The principle that the law
of the place giving rise to particular rights is the law that governs the rights of parties to a
legal proceeding. According to Merriam-Webster dictionary lex loci delicti is ‘the law of the
place of the wrong or tort’.2
According to US legal lex loci is a Latin term meaning “the law of the place”. It means the
law of the state or the nation where the matter in litigation transpired. Lex loci brings the
notion that the rights of parties to a legal proceeding are governed by the law of the place
where those rights arose. In simple terms, it means the local law. The term lex loci can be

1
Legal Information Institute (LII), Wex, US Law.
2
Merriam Webster Dictionary.
employed in several descriptions, but, in general, it is used for lex loci contractus (the law of
the place where the contract was made), which is usually the law the governs the contract.
Hindu law is not lex loci. It is considered to be one of the most ancient systems of law known
to the world which has developed over the time in new forms but the initial requirements and
duties of Hindu law remains the same. It is also believed as it is mentioned above that Hindu
law is of divine origin. Hindu law is thus a personal law. It is not lex loci (law of the land).
The laws which are applicable in a territory to all persons irrespective of their caste creed or
race and religion are lex loci. Hindu law is not applicable to Parsis, Jews, Muslims and
Christians. It is only applicable to Hindus. Thus, it is a personal law.
Even though most of the Hindu law is derived from ancient sources like Vedas, Manu smritis
and customs but legislations have also been playing a profound role in the formation of
Hindu law. After India achieved independence, some important aspects of Hindu law have
been codified. These statutes are:
1. The Hindu Marriage Act,1955
2. The Hindu Adoptions and Maintenance Act,1956
3. The Hindu Succession Act,1956
4. The Hindu Minority and Guardianship Act,1956
Hindu law is a personal law which means it is a category of special law. Hindu law applies
only to Hindus and that too in respect to certain matters- such as marriage, adoption and
maintenance, minority and guardianship, joint family, partition, succession etc. Section 2 of
the Hindu Marriage Act, 1955 explains who are Hindus.3

APPLICATION OF HINDU LAW

The true character of Hindu Jurisprudence is different from that of the European system. The
obedience to the Smritis etc., was not due to political authority of their authors, but the
veneration in which they were held by those for whom these writings were intended. These
lawgivers showed admirable practical good sense in prescribing rules. “While apparently
professing to follow the Divine Laws and Commands as found in the Vedas and claiming
simply to interpret and explain them to the general public, in reality they so moulded these
texts as to bring them in conformity with the general sense of their followers- a fact which
secured them a following and obedience which was as universal and strong- as that secured
by a political authority.
The development of Hindu law in this way may be compared with English Equity and Roman
Praetorian Legislation which had to pass through similar stages of formation. But the
expression Hindu law can even stand the test of Western Lawyers if the true origin of the
Laws is properly borne in mind. In the East, as well as the West, it is never the King or
Sovereign or Political Superior who composes the Laws himself, but it is only with his
signature and seal that the Laws which are otherwise composed by private individuals are
issued to the world with the Political Sanction imprinted on it. There is only one point
wherein the two systems differ. For, whereas, in the West, the authors compose the Code by
an authority previously given for the purpose, in the East, the political mark is affixed to the
writings which probably were commenced and completed at the individual wish of a private

3
Section 2, Hindu Marriage Act, 1955.
person, but subsequently obtained political sanction and thus came to be laws by ratification
subsequently given.
The term ‘Hindu’ is a general term which denotes all those persons who profess Hindu
religion either by birth or by conversion to the Hindu faith. Till this day there is no precise
definition of the term ‘Hindu’ available either in the statute or in any judicial pronouncement.
But it is easy to state the various categories of persons to whom Hindu Law applies. The
persons to whom Hindu Law applies may come in the following three categories-
1. Any person who is a Hindu, Jain, Sikh or Buddhist by religion, i.e., Hindus by
religion.4
2. Any person who is born of Hindu parents (when both the parents or one of the parents
is a Hindu, Jain, Sikh or Buddhist by religion) i.e., Hindus by birth.5
3. Any person who is not a Muslim, Christian, Parsi or Jew and who is not governed by
any other law.6
Hindu by religion:
Any person who is Hindu by religion in any of its forms and developments is a Hindu. In the
course of over five thousand years of its existence, Hindu religion has passed through many
phases. From time-to-time dissentions, new ideas and thoughts and practices have come into
existence, sometimes diametrically opposite to each other. The remarkable feature of Hindu
religion has been that it has been able to absorb and assimilate all thoughts, ideas, dissentions,
practices and professions in its fold and has retained it basic unity. The fundamental ideal
before a Hindu has always been the achievement of ultimate goal, the realization of the self,
attainment of salvation, to reach moksha, or to attain Amartya. The self may be realised by
following the bhakti Marg, Gyan Marg or karma marg. It may be realised by believing that
God has a form or that it is formless. It may be realised by following the path laid down in
the Vedas, the Upanishads, the Geeta or any other Hindu scripture or by Gurus or Acharyas.
The self may be realised by tapasya or following the life of sadgrihasthi or leading the life of
an akhand Braham Chari.7 One is a Hindu whether one is a follower of any ancient or modern
sect or sub-sect of Hindus.
Any person who is a Jain, Sikh or Buddhist by religion, is also a Hindu since Hindu law
applies to him.8
Convert or re-convert:
Any person who is a convert or re-convert to Hinduism, Sikhism, Buddhism or Jainism is a
Hindu. The usual mode of conversion is by undergoing the ceremonies of conversion
prescribed by the religion to which conversion is sought. The dharma shastras did not
prescribe any ceremony of conversion to Hinduism. By judicial interpretation two modes of
conversion have been developed. Thus, a person will be a Hindu by conversion or re-
conversion if any one of the following modes are adopted:

4
Section 2(1) clauses (a) and (b), Hindu Marriage Act,1955.
5
Section 2(1) clauses (a) and (b) to Explanation, Hindu Marriage Act,1955.
6
Section 2(1)(c), Hindu Marriage Act, 1955.
7
Shastri Yognopurushaddasji v. Muldas, AIR 1976 SC 1119.
8
Sugan Chand v. Prakash Chand. AIR 1967 SC 506.
 1. If a person undergoes a formal ceremony prescribed by the religion, caste, community
or sect which he wants to enter.9
2. If a person expresses a bona fide intention to become a Hindu accompanied by a
conduct unequivocally expressing that intention coupled with the acceptance of his as
its member by the community or caste into the fold of which he has entered.10\
3. If a person declares that he has accepted Hinduism as his faith and he has been
following Hinduism for some time, he becomes a Hindu.11
A Hindu does not cease to be a Hindu if he becomes an atheist, dissents or deviates from the
central doctrine of Hinduism or lapses from orthodox religious practices, or adopts western
ways of life, or decries Hinduism, or eats beef and does anything which an ordinary Hindu
would not indulge in.12
Hindu by birth:
Under the modern Hindu Law, the children of Hindu parents are Hindus, irrespective of the
fact whether or not they follow, practice or profess Hinduism. In Hindu law, the child does
not necessarily take the religion of his father. A person will be Hindu by birth in the
following two cases:
1. A person (whether born legitimate or illegitimate) will be Hindu if both his parents
are Hindus.
2. A person (whether born legitimate or illegitimate) will be Hindu:
• If one of his parents at the time of birth was a Hindu, and
• He was brought up as a Hindu.13
Persons who are not Muslims, Christians, Parsis or Jews:
Any person who is not a Muslim, Christian, Parsi or Jew (and who is also not known to be a
Hindu, Sikh, Jain or Buddhist- if he is known to be such, he is a Hindu), who:
i. Is domiciled India, and
ii. Unless it is proved that Hindu law is not applicable to him, is a Hindu.
This is a residuary clause. In India from the point of view of application of personal law, it
seems a person must belong to one or the other religious community, though how deep is his
religiosity is immaterial.
A person who is a Sikh, Jain or Buddhist by religion or a person who is not a Muslim,
Christian, Parsi or Jew is not a Hindu by religion although Hindu law applies to him. Section
2(1) of the Hindu Marriage Act, 1955 categorises the persons who are Hindus and Section
2(3) calls all persons to whom Hindu law applies as Hindu.
The Hindu Marriage Act does not apply to the Scheduled Tribes coming withing the meaning
of Clause (25) of Article 366 of the Constitution of India, unless the Central Government, by

9
Kusum v. Satya, ILR (1930) 30 Cal. 99.
10
Peerumal v. Poonuswami, AIR 1971 SC 2352.
11
Mohandas v. Devasan Board, 1975 KLT 55.
12
Rani Bhagwan v. J.C. Bose, ILR (1903) 30 IA 249.
13
Myna Boyce v. Octaram, (1961) 8 MIA 400.
notification in the official gazette, directs that the act will apply to any of the Scheduled
Tribes.14

CONCLUSION
It is true to say that Hindu law is not lex loci but a personal law. The meaning of this
statement is that Hindu Law is not the law of a particular locality or territory but is a personal
law of a community which means that when a Hindu migrates from one place to another, he
carries his personal law with him. In order to establish that he has adopted the local law, it
must be proved beyond doubt. It is the law of his place of domicile which would follow him
to his place of migration. Thus, where a person belonging to Lucknow shifts to Calcutta and
is settled permanently there, he would be governed by Mitakshara law particularly its Banaras
School rather than by dayabhaga law which is the law governing the Hindus of West Bengal.
But where nothing is known about the place of permanent residence of a Hindu it would be
deemed that he would be governed by the law of his residence.

14
Most of the Scheduled tribes are still governed by Customs.