Q1.

Describe briefly the relationship between personal law, family law and hindu law
The personal law is a set of laws which gives the rules and regulations which
includes the customary usages and laws legislated by the parliament. The personal
law is meant for specific person, community, group of person, a particular religion or
for a family.
Family law are the set of laws which are codified and uncodified in nature. The laws
which are related to for a particular family is known as family law. Family law is a part
of personal law.
According to these laws the law relating to a hindu person for eg, institution of
marriage, existence of a family, concept of blood relationship, Concept of copartioner
and concept of karta and concept related to

Sources of hindu law:

Divided into two parts
1. Primary
2. Secondary

Primary:

i. Shruti – this word is derived from “shru” which means which was heard by a
person from the mouth of divinity. It is considered to be ultimate and one of
the fundamental source of hindu law. The shrutis are called as Vedas which
is divided into four parts :
1. rig Veda,
2. Yajur Veda,
3. Shyam veda
4. Atharva veda.
According to this section the concept relates to theories about rituals and
customs, rights and duties, forms of marriages, requirement of a son
inheriting the property.

Upanishads – according to Upanishads the gist of vedas are explained from which
dharma shastras and dharma sutras has been drawn out. This Upanishads is divided
into two parts: Samhita; which means the mantras are embodied and explained in
story form. The second part is brahmana which means the methods of application.

ii. Smriti – the word has been interpreted from the word “smri” which means to
be remembered. There are two kinds of smritis:
1. Dharma sutras: which are written in prose style. Written by yajna valkya
 2. Dharma shastras: written in poetry style. written by manu smriti and the
interpretation was related to the position of a female in the society and the law
of inheritance of the property by a female

iii. Commentaries and digest – the digest or commentaries in other words

they are called “nibhand” which means these are digest and commentaries
and written and compiled in two ways:
1. Mitakshara: written by Vijnyanshwar
2. Dayabhag: written by Jimutavaham

iv. Customs - according to this source of law this is one of the continuous and
uniform in nature. This custom can be obtained by any community, any
person or any society. Custom is of four types:
1. Special custom: applied for specific person
2. General custom: applied for the whole community
3. Family custom: adopted by a particular family
4. Guilt custom: are those customs applied for law of contracts

Essential features of custom: it can be ancient in nature. Customs should be

continuous. Customs should be reasonable. Customs should not be opposed to
public policy

Secondary Sources of law

1. Legislation: these are those legislated laws which are passed by the act of
parliament and state legislatures. According to hindu law legislation plays an
important role for codifying the historical concepts. For eg: hindu marriage act,
1955, hindu adoption and maintenance act, 1956, hindu succession act, 1956,
hindu cast disabilities removal act, 1850, child marriage restraint act, 1928.
2. Precedents: it means judicial decisions or judge made laws.
3. Equity, justice and good conscience:

Schools of hindu law: it Is divided into two schools

1. Mitakshara: rest of the states (male dominated)
2. Dayabhag: it prevails in the state of assam and west Bengal (family oriented)

Mitakshara school is divided into four parts:

1. Banaras school
2. Mithila school
3. Dravida school
4. Bombay school
 Mitakshara School deals with concept of joint family system and the concept
of coparcenary.

Concept of marriage is divided into two parts:

1. One male, several females (polygamy)
2. Concept of sororal : two sisters marry one person
3. Concept of non – saroral : two wives non related by bloodpady
4. Concept of polyandry
5. Concept of monogamy
Describe briefly different types of sources

Pre act and post act position of Hindu Marriage Act:

1. Rohini kumari vs Narendra singh (1972) SC 1: acc to this case law SC laid down
that when a particular set of rules and regulations is combined with a codified law
then it can be changed and amended time to time looking towards the society.
Pre Act of HMA:
1. Marriage was called as a sacramental relationship purely based on Vedas and
Shastras.
2. The solemnization of marriage was acc. To the customary usages.
3. A person can marry at any age.
4. Polygamy did prevail.
5. Inter religious and inter caste marriage was prohibited.
6. Marriage within same gotra and parvara was prohibited.
7. Dissolution of marriage was upto the guardian of the family and the parties
Post HMA:
1. Mutual consent between the parties was mandatory
2. Marriage between Hinduism. Jainism, Buddhism and Sikhism was allowed
3. Age was 18 and 21
4. Limits within sapinda (person eligible to give the pinddan to the forefathers)
relationship was introduced.
5. Concept of monogamy was introduced.
6. Inter caste and inter religious were allowed
7. Registration of marriage was allowed.
8. for dissolution of marriage grounds for dissolution was introduced

Applicability of the Act (section 1 to 4)

1. HMA, 1955 is applicable in all the sates of India except J&K.
2. It is applicable to all the citizens of Inida who are the domicile of india but are
staying outside
3. Applicable to any person who is Hindu by religion with its five sub communities
Arya samaj
Brahmo samaj
Prarthna samaj
Lingayat samaj
Virashaiva samaj
4. Applicable for a person under Jainism Buddhism and Sikhism
5. Applicable for every person who has converted or re converted to Hinduism
6. It is applicable to all the legitimate and illegitimate people
Sapna v. state of Kerela AIR 1993: acc to this case law court of law laid down that
every legitimate or illegitimate person who is born from a hindu parents will be called
as hindu by religion and all the conditions of HMA 1955 will be applicable on that
person.
Gopal krishna v. Mithilesh kumari AIR 1979 ALL HC 316: acc to this case law
marriage under hindu law has been declared as sacramental relationship between
two parties rather to be called as a socio legal contract.
Dasrath v. Guru AIR 1972 Ori HC 78: acc to this case law all those persons who
belong to ST community but sufficiently practicing Hinduism then HMA, 1955
conditions will be applicable
Ratanshi D. Morarji v. Administrator General of Madras 1972 Mad HC 160: acc to
this case law all those persons who are converted or reconverted to hindu religion,
they will also be called as hindu by religion.

Section 5: condition related to valid marriage

It deals with all the conditions relating to valid marriage:
1. Concept of monogamy: acc to this condition neither parties must have a spouse
living at the time of the marriage.
Chamundama v. Lakshmi Ker SC: acc to this case law if a party without
dissolving the previous marriage entering into the second marriage, then the
second marriage will be void ab initio.

Dr. D N Mukherjee v. State 1969: Mukherjee in extra marital affair. Wife filed a
case. Acc to this case law if a person has not entered in the institution of
marriage, a person cannot be held liable for the act of bigamy which is mentioned
under 494 of IPC.

Acc to sharla muddgal and lily Thomas case the court of law laid down that if a
hindu person co