Dogo Rangsang Research Journal UGC Care Group I Journal

ISSN : 2347-7180 Vol-13, Issue-6, No. 07, June 2023

HINDU LAW- THE LAW TO REMAIN CLASSICAL IN ITS APPLICATION

Dr. M. P. Chandrika, Principal, S.C. Nandimath Law College, Bagalkot. Karnataka

Abstract-
In the year 1955 and 56 British codified Hindu law. Hinduism is a way of life. Hindus depended
on ancient texts which consisted of rules on various subjects. India had seen civilization even before
the whole world did. How a man has to lead his/her life has been written in our ancient scriptures.
Vedas are the oldest of all. There are four Vedas, Rigveda, Atharvaveda, Samaveda and Yajurveda.
Then there is Geeta which also speaks about rules a man must adhere from his birth to death. Apart
from this there are texts on Dharmashastra and Dharmasutras. All these texts and scriptures deals
with various matters from birth to death. Those who lead their life based on these are known as
Hindus. The codification was done to bring down uniformity in rules as rules changed from caste,
creed, community and region. But when we look at the court verdicts, people’s acceptance of the
codification, we see that even after codification, Hindus still follow the customs which they regard as
their law. Whether it is marriage, divorce or inheritance, they go by the tradition and not by what the
codified law says. This review is not aimed at exact evaluation of the application of classical Hindu
law ignoring the codified law. Rather it is focusing on the application of classical/customary laws
through delineation of courts.
Key Words- Hindu, Classical, Marriage, Divorce, Sthridhan, Adoption, Inheritance.

INTRODUCTION
Hindu law as a conceptual entity has remained an integral part of the living and lived experience
of all Indians.1 Hindu conceptions of law have to start with the basic observation that nowhere in the
Hindu tradition is there a term to express the concept of law, neither in the sense of ius nor in that of
lex. Personal Laws determines rights and obligations of the persons to which religion he belongs to.
These rights are not absolute and may be modified or abrogated by Statute. Laws for Hindus, are
most ancient pedigree of any known system of jurisprudence. Codification of laws for Hindus is not
even a century old. But the followers of the Hindu religion had a set of principles, rules and
regulations even before bringing them in the form of Statute.
Hindu law applies to the person who is a follower of the Hindu religion. There are thus three
broad periods in the academic discourse on Hindu legal history: classical Hindu law (500 BC-1772
AD), but which obviously deserves further periodization), Anglo-Hindu law (1772-1947), and
modem Hindu law (1947-present). The Hindu religion is not the law because these two are distinct
concepts and cannot be used interchangeably. It was and it is binding on the king or the state as well
as on the subjects.
Dharma is a concept way beyond the scope of one person understands and cannot be defined in
words.2 Dharma" is a noun formed with the suffix 'ma’ from a root ‘dhar’ or ‘dhr’. The root
expresses actions such as to hold, bear, carry, maintain, preserve, keep. Hence, dharma is the way in
which, or the means by which, one holds, bears, carries, or maintains, and, in accordance with
semantic development common in Sanskrit, it means not only the way of doing these things, but also
the way of doing them.3
The concept of Hindu law is deeply rooted in Hindu philosophy and Hindu religion. 4 Hindus
believe that the soul is immortal and there is a chain of birth and rebirth till the chain is broken by
attaining salvation (moksha). All actions (karma) produce either good or bad results. It is one’s
karma that cause of the various conditions of life on this earth and above. To attain oneness with
God, or liberating oneself is by atmajnana (knowledge of the self), or recognizing self through all

1
Werner F. Menski, Hindu Law: Beyond Tradition and Modernity, Oxford University Press, New Delhi, India, 2003, p.
9.
2
Nishita Kirty, ‘Hindu Legal Theory and its Relevance in Current Times’, International Journal of Law Management &
Humanities, Vol. 3, Issue 6, 2020, p. 585.
3
Ludo Rocher, ‘Hindu Conceptions of Law’, The Hastings Law Journal, Vol. 29, Issue 6, 1978, p. 1284-1285.
4
Dr. Paras Diwan, ‘Modern Hindu Law’, 24th ed., Allahabad Law Agency, Faridabad, 2019, p.11.
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created beings (nature) and be just and equal in one’s behaviour is the real Dharma.5 To the Hindu
jurist, a law was nothing but a collection of human practices or customs based upon principles of
morality and natural justice accepted by the consensus of society at a particular time.6
In Hinduism law is discussed as a subject of Dharma which signifies behavior that is considered
in accord with rta, the order that makes life and the universe possible and includes duties, rights,
laws, conduct, virtues and ‘the right way of living’. Hence, the sources for the Hindu law are to be
derived as the indices of Dharma have been stated by Hindu jurisprudents.7 Hindu law is the law of
Vedas, Smritis, Shrutis and many other such classical sources which are expounded in the Sanskrit
commentaries and digest. These are modified and supplemented by customs and is administered by
the courts. Smritis were part based upon contemporary or anterior usages.
Apart from Smritis, Vedas the important source was the approved usages, and what is agreeable
to good conscience, which was the highest authority of the law, the quadruple direct sources of
Dharma. With the study of ancient literature, Hindu law can be classified into three categories as, the
Classical law, the Anglo Hindu law and the modern Hindu law. One cannot ignore any category
while applying the principles of the law which deciding a pertinent case. This is where the journey
from classical theory to modern theory starts. Analyzing of the case laws will highlight the
significance accorded to each category which delivering the justice. In this paper the author is trying
to state the reasons for disparity in judgments due to application of the principles on Hindu law.

WHO IS A HINDU AND TO WHOM DOES HINDU LAW APPLY

In respect of uncodified Hindu law, the expression ‘Hindu’ was given sufficiently wide meaning
so as to include not merely persons who are Sikhs, Jains or Buddhists and also several tribes,
communities and people who were not Hindus. Thus, to be a Hindu it was not necessary that a
person must be a Hindu by religion. Some authors also argue that Hinduism is not a religion it is way
of life.
Hence, any person follows any branch of Hindu law, even though he does not fall within the
definition of ‘Hindu’ under codified Hindu law, the law continues to apply to him to that branch. Ex.
Among the Tamil Vaniya Christians of Kerala, in the matters of inheritance and succession they are
governed by Hindu law, rules relating to son’s birth right in ancestral property and doctrine of pious
obligation of son, still apply to them.8 Even a mere declaration under the Special Marriage Act,
1872,9 that a person was not a Hindu did not mean that he had ceased to be a Hindu.10
Who is a Hindu is a difficult question to answer after analyzing the way it is followed in India.
Codified Hindu law under section 4 expressly mentions to whom Hindu law is applicable and not
who is a Hindu. Then under section 6 and 7, decisions of court have been listed, under the uncodified
Hindu law, determining persons governed by Hindu law and stating persons to whom Hindu law has
been held not application. In Yagnapurushdasji v/s Muldas,11 the honorable Supreme Court
explained who are Hindus and stated the broad features of the Hindu religion.
Thus, the Hindu law applies to;
1. No only to Hindus by birth, but also to Hindus by religion, i.e converts to Hinduism.12 In
Perumal v/s Ponuswami,13 the Supreme Court pointed out that a person may be a Hindu by birth
or by conversion. A mere theoretical allegiance to the Hindu faith by a person born in another
faith does not convert him into a Hindu. However, a bona fide intention to convert to Hindu faith,
accompanied by conduct unequivocally expressing that intention, may be sufficient evidence of
conversion.
2. To illegitimate children where both parents are Hindus:14
5
Manusmriti, XII 3, 9, 17-23, 125.
6
P.K. Menon, “Hindu jurisprudence”, The International Lawyer, vol. 9, issue No. 1,1975, p. 209.
7
Satyajeet A Desai, ‘Mulla: Hindu Law’, 21st ed., Lexis Nexus, Butterworths, Wadhwa, Nagpur, 2010, p.6.
8
Chinaswamy v. Anthonswamy, 1961 Ker 161.
9
Act III of 1872.
10
Commissioner of Income Tax v. Pratap, 1959 Punj 415.
11
AIR 1966 SC 1119.
12
Abraham v. Abraham (1863) 9 MIA 195
13
AIR 1971 SC
14
Dattaraya Tatya v. Maha Bala, (1934) 58 Bom 119.
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3. To illegitimate children where the father is a Christian and the mother is a Hindu, and the
children are brought up as Hindus;
4. To Jains, Buddhists in India, Sikhs and Nambudiri Brahmins,15 except so far as such law is
varied by customs to Lingayats, who are considered Sudras;16
5. To a Hindu by birth who, having renounced Hinduism, has reverted to it after performing the
religious rites of expiation and repentance.17 And even without formal rituals of reconversion,
when he was recognized as a Hindu by his community;18
6. To sons of Hindu dancing girls of the Naik caste converted to Mohammedanism, where the sons
are taken into the family of the Hindu grandparents and are brought up as Hindus;19
7. To Brahmos, to Arya Samajists;20 and to Santhals of Chota Nagpur;21 and also, to Santhals of
Manbhum,22 except so far as it is not varied by custom; and
8. To Hindus who made a declaration that they were not Hindus for the purpose of the Special
Marriage Act, 1872.23
Hence, Hindu law is not applicable to the illegitimate children of a Hindu father by a Christian
mother who are brought up as Christians,24 or to illegitimate children of a Hindu father by a
Mohammedan mother,25 to the Hindu converts to Christianity, to converts from the Hindu to the
Mohammedan faith and to the property of any person professing the Hindu, Sikh or Jain religion
who married under the Special Marriage Act or the property of the issue of such marriage. A person
ceasing to be Hindu in religion, cannot, since the passing of the Act of 1865, elect to continue to be
bound by Hindu law in matters of succession.26
In all it is still unsettled law whether Hindu rule of survivorship is applicable to the families of
native Christians, who continue to be joint even after conversion. 27 Under such circumstances, the
rule that prevailed before their conversion has been applied for, they still followed the law.28 This
brings back the classical Hindu law is still prevalent not only amongst the Hindus to whom the
codified Hindu law is applicable, but even amongst the non-Hindus.

CLASSICAL HINDU LAW

Classical Hindu law was theologically based on the Dharmasastras. The classical Hindu Law as
set in Vedas, Shastras, Upanishads and dharma grantas, consisting of shruti, smriti, sutras, and acara.
There are four Vedas: Rig Veda, Yajur Veda, Sam Veda and Atharva Veda. Each Veda has three
parts which speaks about duties and means of performing them.29 But the Vedas contain nothing of
vyavahar or Law; yet the Hindu jurists consider the Vedas as the basis of law. These Vedas are also
termed as Shrutis (meaning thereby to hear). The Hindus consider the Shrutis, as the primary source
of their law and religion. But the Shrutis do not contain much which can be regarded as positive law.
It contains many ethical and religious matters and only few statements of law, which are often
metaphorical.30
In Dharmashastras belongs to the second period where we find previously existing laws and
customs. There were Gathas which are mentioned in Manusmriti and the Sutras of Gautama,
Vasistha and others, but the original form of those Gathas was very little. The earliest concept was

15
Narayan Namboori v. K Rai Varma, AIR 1956 Tr & Coch 74 (Nambudiri Malyalam Brahmins in Travancore-Cochin).
16
Tirkangauda v. Shivappa, ILR (1943) Bom 706.
17
Kusum v. Satya, (1903) 30 Cal 999.
18
Guntur Medical College v. Mohan Rao, AIR 1976 SC 1904.
19
Ram Pergash v. Mussammat Dahan Bibi, AIR 1924 Pat 420.
20
Shivanand v. Shri Sshankarji Maharaj, AIR 1984 All 55.
21
Langa v. Jiba, AIR 1987 Ori 205.
22
Ibid.
23
Thukru Bai v. Attavar, (1935) 58 Mad 1004.
24
Lingappa v. Esudasan, (1904) 27 Mad 13.
25
Charanjit Singh v. Amir Ali Khan, AIR 1921 Lah 121.
26
Kamawati v. Digbijai Singh, (1921) 43 All 525; AIR 1922 Pepsu 14.
27
Ex. in Francis Ghosal v. Gabri Ghosal, (1907) 31 Bom 25., Kulada v. Haripada, (1913) 40 Cal 407.
28
Ex. in Labishwar Manjhi v. Pran Manjhi and Ors. (2000) 8 SCC 587.
29
Ramesh Chandra Nagpal, ‘Modern Hindu Law, Eastern Book Company, Lucknow, 1983, p. 23.
30
Sunil Kumar Mitra, ‘Mitra on Hindu Law’, 1st ed., Orient Publishing Company, New-Delhi-Allahabad, p. 2.
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Smritis which were widely accepted and embodied traditional law. Smritis are collections of precepts
handed down by Rishis, (sages) of antiquity. The main Smritis elucidate religious, moral, social and
legal duties. The Hindu Rishis were at the same time sages and law-makers and nothing they left
undefined or unexamined. At a very remote period they dealt with both substantive and procedural or
adjective laws under eighteen heads and one hundred and thirty-two sub-divisions.
Manu is regarded as the world’s greatest law-giver analysed social problems and conflicts with a
view to identifying the responsible factors. By profession a person carried, they were fit into varnas.
There were four varnas, Brahmins representing intellectual power, Kshatriyas strength and valour,
Vaishyas money power and Sudras the workforce, and their duties and responsibilities were well
defined. One had the freedom to choose one’s occupation which was not hereditary. Narada, one of
the sages, gave Naradasmriti which has two parts, the first deals with judicature and the second part
discusses eighteen titles of law given in the Manusmriti or the Code of Manu. He lays down the rules
of pleading, evidence of witnesses and procedure. He opines that custom is exceedingly powerful
and overrides any text of sacred law. Brihaspati, has compiled Smriti which is an illustrious authority
of Hindu law, deals with partnership and distinguished civil wrongs and crimes from other titles of
law.31 Katyayana’s Smriti deals with topics related to procedural laws.
The Smritis some of which deal comprehensively with various topics of law and are usually
called Institutes or Codes were not codes in the sense in which this term is understood in modern
times. There is no clean-cut distinction between rules of law and rules of morality or religion in
Smriti. This rests on the Hindu philosophy that the belief they held, sometimes interlocking of
religious and ethical and legal principles and concepts. The Shastras laid down in meticulous details
what are paths towards dharma and the reward that one gets by following the dharma to attain
moksha. Again, there is no distinction between moral, religious and legal duties. Yet a distinction
was made on duties which are capable of enforcement by secular authority and other which were
enforceable in the realm of conscience only. This has been illustrated in Balwant Singh v. Ram
Kishan,32 where the Privy Council propounded that ‘All these old text books and commentaries are
apt to mingle religious and moral considerations, not being positive laws, with rules intended for
positive law.’ Their Lordships also quoted that with the approval, the following passage from
Macnaughtan’s Hindu Law: It by no means follows that because an act has been prohibited it should
therefore be considered as illegal.
The Classical Hindu law can be seen in Smritis which dealt with practical administration of
justice. But it is also argued that Hindu law was administered on the basis of unwritten maxims,
floating verses of rules and some written in Sanskrit which was applicable to small groups and
castes. Classical Hindu law was never codified law sensu stricto. The Dharmashastra itself
acknowledges that various laws are specific to group, caste, lineage, family, gender, etc. The word
Smriti is derived from the root ‘Smri’ meaning thereby to remember.
The basis of Smriti is the Shruti or the Veda. The Smritikars and those who preceded them
declared and emphasized the divine origin and sanction of the rules of dharma. As Manu says, “The
Vedas, the Smritis, the approved usage, and what is agreeable to one’s soul (good conscience), the
wise have declared to be the quadruple direct evidence of Dharma (Law)”.33 In other words Dharma
also meant ‘duties. Hence, dharma signifies the sum total of religious, moral social and legal duties.34
IV APPLICATION OF CLASSICAL HINDU LAW BY THE COURTS
Glimpses at the classical Hindu law leads to two basic questions: To what extent classical Hindu
law is a source for judicial pronouncements? Do the modern Hindu law overrides or assists courts in
reaching a conclusion on various topics? The topic shall be discussed under the following sub-
headings-
A. Marriage- Hindu marriage is regarded as sacrament as Hindus conceived their marriage not
merely a sacrosanct and inviolable union, but also an eternal union-a union which subsists not
merely during this life but for all lives to come.

31
Brihaspati, IV, 2,3, 4,9.
32
(1899) 26 IA 113 at 139.
33
S. R. Myneni, ‘Hindu Law’, 1st ed., Asian Law House, 2017, p. 1.
34
Dr. Paras Diwan, ‘Modern Hindu Law’, 24th ed., Allahabad Law Agency, Faridabad, 2019, p.20.
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Hindu Marriage Act, 1955, lists out the following conditions to be fulfilled for solemnization
between any two Hindus;
• Neither party has a spouse living at the time of the marriage
• At the time of the marriage, neither party-
a. Is capable of giving a valid consent to it in consequence of unsoundness of mind; or
b. Though incapable of giving a valid consent, has been suffering from mental disorder of such a
kind or to such an extent as to be unfit for marriage and the procreation of children; or
c. Has been subject o recurrent attacks of insanity;
• The bridegroom has completed the age of twenty-one years and the bride the age of eighteen
years at the time of marriage.
• The parties are not within the degrees of prohibited relationship unless the custom or usage
governing each of them permits of marriage between the two;
• The parties are not sapindas of each other, unless the customs or usage governing each of them
permits of a marriage between the two.
The first condition is that Modern Hindu Law propounds the marriage must legal. To prove the
marriage has valid marriage, it is essential to prove that marriage was solemnized according to
religious ceremonies and customs.35 What is religious ceremony is not fixed.36 What is stated in the
codified law, u/s 7 of Hindu Marriage Act is not mandatory. Section 7 speaks about the basic
ceremonies that have the performed in a Hindu marriage. Thus, marriages are performed and various
from caste to creed. The marriage should have been celebrated with proper ceremonies and in due
form.37 A small group may have its own ceremony to conclude a marriage. Ex. In northern part of
Karnataka, Lingayat community do not have saptapadi, yet it is legal and valid. Instances of such
marriages can be observed in Serai Udiki marriage.38 In the words of Mayne ‘When we examine the
usages of the aboriginal races, or of those who have not come under Brahmanical influences, we find
a system prevailing exactly like that described by Narada’.39 Tying of thali is the binding portion of
the ceremony.40
In another case legitimacy of ‘Pat’41 or Pata’ or ‘Natra’ marriage among the Marathas of Bombay
Presidency was accepted as valid marriage.42 A Pat marriage of a Hindu widow, in absence of any
evidence to show payment to the bride’s relations is to be regarded as marriage in an approved
form.43 Hence, customary marriages, though do not fit into the codified essentials of a valid marriage
is regarded as valid marriage. What has to be proved is that it must of immemorial existence, it must
be reasonable, it must be certain and it must be continuous.44 Generally such customs have to be
proved, however, nothing needs to be proved of which the courts take judicial notice. 45 The only
thing that the parties have to prove is that they are governed by customs that allow such marriages
“In regard to marriage, the ordinary Hindu Law does not, and cannot, form the common rule for
all sects alike.”46 The only and important condition is that both the parties must be Hindu and the
marriage is performed according to the rites and custom of either party or both the parties. Hence, it
is difficult to decide the validity of marriage as till date marriages in India are performed according
to customary rites and not as per the codified law. The cases differ from one another and it all
depends on the facts and evidence adduced by the courts.

35
Varadrajan v. State, AIR 1965 SC 50.
36
There are two ceremonies essential to the validity of Hindu Marriage, viz.- 1) Vivah homa (invocation before the
sacred fire) and 2) Saptapati (i.e., taking of seven steps).
37
Bhaurao Shanker Lokhande v. State of Maharastra, AIR 1965 SC 1564.
38
Virasangappa v. Rudrappa, 1885 ILR 8 Mad 440.
39
John Dawson Mayne, ‘Mayne’s Treatise on Hindu Law and Usage’, Higginbothams, Madras, 1953, 11th ed., p. 175.
40
Shakunthalabai and Another v. L. V. Kulkarni and Another, AIR 1989 SC 1359
41
Pat marriage i.e., in accordance with the custom of the caste is on par with ‘Lagna’ marriage or valid marriage.
42
Rahi v. Govinda Valad Teja, 1876-77, ILR 1 Bom 97.
43
Mahadeo v. Chandrabhagabai, (1946) Nag 378.
44
Edward v. Jenkins 1896 1 Ch D 308.
45
Section 57 of Indian Evidence Act, 1872.
46
Sir Gooroondas Bannerjee, ‘Hindu Law of Marriage and Stridhan’, Thanker, Spink and Co; Calcutta, 1844-1918, p.
311.
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Apart from the customary marriage, at times long cohabitation has also proved the marriage.
Section 114 of the Indian Evidence Act, which presumption is drawn for holding the validity of
marriage on account of long co-habitation.47
B. Divorce- Amongst the Hindus, dissolution of marriage was recognized with certain conditions.
Divorce was prohibited only among the upper caste. Mutual consent divorce and remarriage was
common amongst certain class of people.48
Manu and Yajnavalkya write on divorce thus, ‘If a husband is of bad character, or is long gone
abroad, or has become a traitor to his king, or is likely to endanger the life of his wife, or has fallen
from his caste, or has lost virility, he may be abandoned by his wife’. In Kautilya’s Arthashastra,,49
‘A woman hating her husband cannot dissolve her marriage with him against his will. Nor a man can
dissolve his marriage with his wife against her will. But from mutual enmity divorce can be obtained
(Parasparam dveshamokshah).
In certain community, mutual consent divorce was approved by the people belonging to the same
sect. There is a procedure to be followed even in such cases of dissolution of marriage. The parties
are free to remarry after the divorce. Section 29(2) of Hindu Marriage Act, 1955 says ‘Nothing
contained in this Act shall be deemed to affect any right recognized by custom or conferred by any
special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after
the commencement of this Act. By stating this, codified Hindu law has custom is above the codified
law.
If the customary right to divorce is proved and at the same time the procedure is followed, the
divorce is held to be valid.50 When this is proved, the court shall grant declaratory degree.51 If
declaration on the basis of recognised custom has to be obtained, it is required to be enquired that the
custom is prevailing and parties have rightly obtained customary divorce as per the prevailing
custom and prove that the caste to which the parties belonged permitted dissolution of
marriage.52 The form that was accepted was by mutual consent, in most cases written form and
evidentiary proof of the dissolution.
At the back drop, when Smritis are read, cruelty and desertion were also ground for the
dissolution of marriage. In ‘Pat’ marriage53, with a divorced woman would not be regarded to be in
an unapproved form, because a payment was made for securing divorce.54 Recently, Chhattisgarh
High Court stated that ‘Under section 29(2) Hindu Marriage Act, clears that a marriage can still be
dissolved in accordance with the custom governing the parties or under any other law providing for
the same, unless it is against the public policy’.55 There has to be desertion before such dissolution
takes place.
C. Adoption- Adoption is the admission of a stranger by birth to the privileges of a child by a
legally recognized form of affiliation.
Marriage and sonship constitute some of the unique chapters in the literal egis of ancient Hindu
law which recognized 12 kinds of sons of which there were five kinds of adopted sons. Modern
Hindu law, of the adopted sons, recognizes only two kinds, the dattaka and the kritrima. The custom
and practice of adoption in India dates back to the ancient times. The object ranged from the
humanitarian motive of caring and bringing up a neglected or destitute child, to a natural desire for a
kid as an object of affection, a caretaker in old age, and an heir after death. Amongst the Hindus the
reason for this is mostly because of the belief that a son was indispensable for spiritual as well as
material welfare of the family.56

47
Rajaram Vishwakarma v. Deepabai, AIR 1974 Madh Pra 52. Also see Smt. Nirmala v. Smt. Rukminibai, AIR 1994
Kant 247
48
Shakunthalabai and another v. L. V. Kulkarni and another, AIR 1989 SC 1350.
49
R. Shamashastry, ‘Kautilya’s Arthashastra’, 2nd ed.Mysore Publishing and Printing House, 1915, P. 189.
50
Venkateswaramma v Loya Veera Venkata Govindarajulu, 1999 (6) ALD 413.
51
Sandhya v. Dinesh, I (2003) DMC 117.
52
S. P. S. Balasubramanyam v. Suruttayan, (1994) 1 SCC 460.
53
Supra note 40.
54
Kodu v. Lola, (1947), ILR Nag 885.
55
Duleshwar Prasad Deshmukh v. Kirtilata Deshmukh, 2022 SCC OnLine Chh 1567.
56
In China Ramasubbayya v. M. Chenchuramayya (AIR 1947 PC 124) wherein the two-fold object of adoption was
stated to be (a) to secure the performance of the funeral rites of the person to whom the adoption is made; and (b) to
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doption is the establishment of a parent-child relationship through a legal and social
“Adoption is the establishment of a parent-child relationship through a legal and social
Adoption is the establishment of a parent-child relationship through a legal and social process
other than the birth process. It is a process by which a child of one set of parents becomes the child
of another set of parents or parent. Epics such as Ramayana and Mahabharata and history has records
of saints and royals who were adopted and who did adopt. Manu Smriti, ‘Dattaka Chandrika’,
‘Dattaka Mimamsa’ and other Dharmashastra, etc. are the text books that are referred to in cases of
adoption under the Hindu laws. These texts lay down the rules that the wife cannot adopt, except
with the consent of the husband.
The first Vedas of Hindu society “Rigveda” defined the laws of adoption as the wealth of the
debtless suffices and may we be the possessors of such offspring. This derives that possession of
offspring is considered to be more valuable than that of real wealth.57 In Manu Smriti, there are 12
chapters, and 9th chapter is dedicated to adoption. Saunaka in his Smriti, said that by one having an
only son the gift of a son should not be made; by one having many sons the gift of a son should
anxiously be made and comments since the masculine gender is used in the compound word ‘by one
having many sons’ the gift of a son, by a woman is prohibited. Saunaka also prohibited adoption
outside the caste.
In early 17th Century Dattaka Mimansa by Nanda-Pandita was considered to be the classical work
on the topic of Adoption. It was named as Dattaka Chandrika in Bengal. This was the only works
that is referred to in cases of adoption under the Hindu law. Generally speaking, they are equally
respected throughout India, but where they differ, the Dattaka Mimansa is preferred in Mithila and
Benares, and the Dattaka Chandrika in Bengal. Both works have had a high place in the estimation
of the courts in all parts of India. The law of adoption built up in decisions of the Privy Council has
been usually founded on these two treatises which furnished almost exclusively the basis for the
same.58 Here too custom outweighs the written law.
Keeping these principles in fact, courts have been deciding the matter related to adoption on the
line of codified law and the custom of the parties. This can be analyzed through series of case law
decisions. in Amarendra Man Singh v. Sanatan Singh59 that in every case of adoption the sole test of
the validity of an adoption is religious efficacy or benefit, or that spiritual benefit is the sole test of
the validity of an adoption in every case. A widow can adopt a child to her husband and only she can
do it. The reason is that Hindu law recognizes her not merely as an agent of her husband but, to use
the felicitous Hindu metaphor, as his surviving half.60 Widow adopts in her own right, the modern
view is that she acts merely as a delegate or representative of her husband, that is to say, she is only
an instrument through whom the husband is supposed to act.61 Balusu Gurulingaswami v. Balusu
Ramalakshmamma,62 pointed out that if the consent of the husbands kinsmen has been obtained, the
widows power to adopt is co-extensive with that of her husband. All these commentaries and
decisions were based on the treatise of Yajnavalkya Smriti and Brihaspati Smriti.63
A married man could be adopted in ancient times. Under Hindu Adoption and Maintenance Act
only unmarried male can be adopted. But it continuous to say that if customs allow married man can
also be adopted. Under such cases the wife also takes the gotra of the family in which her husband
has been adopted. Even a son begotten before adoption, also acquires the gotra of the adopting
family.64 Hence, custom overrides the written law.

preserve the continuance of his lineage and reiterated the position that the validity of the adoption has to be judged by
spiritual rather than temporal considerations and that devolution of property is only of secondary importance.
57
Dr. Dipankar Patra, ‘The Perspectives of (Dattaka) Adoption in Hinduism: An Overview’, International Journal on
Advanced Research, July 2020, p. 1319.
58
The leading decisions on the subject were referred to by the Privy Council in Arumilli Perrazu v. Subbarayadu, (1921)
ILR 44 Mad 656. Pp. 665-68.
59
(1933) 35 BOMLR 859.
60
See Brihaspati Chapter XXV, II and Yagnavalkya Chapter I, 156.
61
Gopalchandra Sarkar Sastri, ‘Hindu Law’, 8th ed. R. Banerjee & Co., 1910, pp 161-162.
62
ILR 22 Mad. 398 at p.408 (PC),
63
See Supra note 59.
64
Kalgavda Tavanappa Patil v. Somappa Tamangavda Patil & Anr. ILR (1909) 33 Bom 669.
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Dogo Rangsang Research Journal UGC Care Group I Journal
ISSN : 2347-7180 Vol-13, Issue-6, No. 07, June 2023
D. Inheritance and Succession- The traditional Hindu Law, especially in the context of inheritance,
was patriarchal and much emphasis was on the male aspect. Various commentaries and digests
have resulted in the emergence of two schools of Hindu law, the Mitakshara and the Dayabhaga,
which contained the law of inheritance.
In the Mitakshara school of inheritance, property is inherited by the successors (coparceners)
merely based on the fact that they were born in the family of the property holders and in case of
Dayabhaga the property goes to the successors (coparceners) on the death of the father or holder of
the property. The Mitakshara was considered to be more biased against women and gave them the
least rights to inherit property. Though Dayabhaga was also biased, it still gave more rights to the
women and was thus considered to be a liberal school.
Joint family system prevailed which consisted of group of relatives related by blood and kinship.
It consisted of common male ancestors, wives of all those people who are related to the common
male ancestor, their sons, their unmarried daughters, and people like uncles, aunts, his nephews,
nieces etc. A married daughter was not considered as she had joined her husband’s family. Within a
joint Hindu family, there is another body of persons called coparcenary which consists of a father,
his son, his grandson and his great-grandson. Thus, from a common male ancestor, only males
descending up to 3 generations were considered as a coparcenary and only these coparceners had a
right to inherit the coparcenary property by birth being the sons, grandsons, and great-grandsons of
the holders of the property for the time being. Thus, under traditional Hindu law coparcenary
consisted only of male members, females were excluded. And then under the Mitakshara school, in
which a coparcener has a right to the property since his birth, under Dayabhaga the right to inherit
property arises only on the death of the father.
Principally, law of succession is a law of entitlement. And also, of status.65 Hence, in ancient
India property were inherited only by men. Women during the Vedic times were held in great regard
and enjoyed various rights and privileges. Women shared equal rights and obligations with her
husband. However, the only discrimination they were subjected to was in matters of inheritance but
they were never excluded completely from inheriting. when women inherited property, this could
also be stridhan66 under the Mitakshara School.
Yajnavalkya seems to have defined strīdhana liberally. He states that what is given to a woman
by father, mother, husband and brother, what is received by her at the time of wedding before the
nuptial fire (adhyagni), also that, which is presented to gratify her by her husband on his marriage to
another wife (ādhivedanika), and the like are denominated as stridhana, so also what is given by
kindred (bandhudatta), the gratuity or fee after the receipt of which a girl is given in marriage (śulka)
and what is bestowed subsequent to marriage (anvadheyaka).67 Jimutavahana advocates woman’s
authority to donate, sell or enjoy independently of her husband’s control over the stridhana. On this
property, no one, including husband, enjoy any legal right or claim and it is apportioned after the
woman’s death in a different way among her heirs. Thus, the proper understanding of the notion
of strīdhana, prevalent during the time of the Yajnavalkyai, suggests the power of woman over
property. Nowhere were proprietary rights of women recognized so early as in India; and in very few
ancient systems of law have these rights been so largely conceded as in our own.68
The Bengal, Benares and Mithila sub schools of Mitakshara recognized only five female relations
as being entitled to inherit namely - widow, daughter, mother paternal grandmother, and paternal
great-grand mother. The Madras sub-school recognized the heritable capacity of a larger number of
female's heirs that is of the son's daughter, daughter's daughter and the sister, as heirs who are
expressly named as heirs in Hindu Law of Inheritance Act, 1929. In the Marumakkattayam law,
which prevailed in Kerala wherein the families were joint families, a household consisted of the
mother and her children with joint rights in property. The lineage was traced through the female line.

65
Jayasri Guha Nee Ghosh v. Shukla Ghosh & Another, GA No. 396 of 2008.
66
Under Manusmriti 6 kinds of property could be called as Stridhan. 1. what has been given before the nuptial fire. 2.
what is given at a bridal procession. 3. what is given as token of love. 4. what is received from a brother. 5. what is
received from mother. And 6. finally, what is received from father.
67
Yajnavalkyasmriti,, 2.143
68
Sir Gooroondas Bannerjee, ‘Hindu Law of Marriage and Stridhan’, Thanker, Spink and Co; Calcutta, 1844-1918, p.
370.
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ISSN : 2347-7180 Vol-13, Issue-6, No. 07, June 2023
Daughters and their children were thus an integral part of the household and of the property
ownership as the family were matrilineal. It is applicable to a considerable section of people in
Travancore-Cochin and districts of Malabar and South Kanara. It is followed by non-Brahmin castes,
Nairs and Thyas, other cognate castes and Payyannur Graman of North Malabar. Under the
Marumakkattayam system of inheritance, descent and succession to the property was traced through
females.69
This customary law of inheritance was codified by the Madras Marumakkathayam Act 1932. The
definition of Marumakkathayam in Madras Marumakkattayam Act 1932, means the system of
inheritance in which descent is traced in the female line and Marumakkattayee means a person
governed by Marumakkathayam Law of Inheritance. This system of inheritance is now abolished by
The Joint Family System (Abolition) Act, 1975 by the Kerala State Legislature. But still some
Muslim families in Malabar and people of Lakshadweep are governed by this customary law system
of inheritance as the Abolition Act applies only to Hindus. Muslims in Malabar happened to follow
this system as they were originally Hindu converts and Lakshadweep people are believed to be
persons migrated from Malabar.70 Even to this day many follow this system of inheritance and courts
have upheld this system of inheritance if the parties prove that they are still following it.71
Then under Aliyasantana system is the system of inheritance through female line which gives
property rights to the lady and all rights are centralized on her, example: Some of the surnames of
Bunt, in Karnataka come from the mother side; the name of the mother's ancestral house normally
became the prefix or suffix of one's name. Under Hindu Succession Act, Section 7(2) is the section
which relates to the devolution of an undivided interest in the property of a kutumba or kavaru and
may be extracted in full which states ‘when a Hindu to whom the Aliyasanthana law would have
applied if this Act had not been passed dies after the commencement of this Act, having at the time
of his or her death an undivided interest in the property of Kutumba or Kavaru, as the case may be,
his or her interest in the property shall devolve by testamentary or intestate succession, as the case
may be, under this Act and not according to the Aliyasanthana law.72

CONCLUSION
As many Hindus of various kinds in India continue to live by customary norms and ethics, rather
than following modern state law, significant discrepancies between the formal law and the ‘living
law’ of Hindus are manifest, forcing the law to adjust to society, rather than society adjusting to law.
This indicates that ‘the right law’ for India today is a culture-specific, deeply pluralist construct with
Hindu elements, a hybrid entity continuously challenged to prove that it is a ‘good law’. Hindu law is
a permanent, but "invisible presence"' that lurks under the radar of official law, but in fact accounts
for much more of law's operation in society.73 Indian judges today are returning to tradition in this
way seems to contradict Menski's assertion that "postmodern" Hindu law is "hybrid" and "the spirit
of the old system, the 'legal postulates' of Hindu law, could never have been legislated away" a
position that seems to indicate continuity, not break and return.
Religious laws can be explained by reference to sociological notion of modernity and post
modernity: whilst modernists assumption of irrelevance of Hindu law led to its neglect, the
reconstruction of Hindu law within the postmodern analysis which accepts legal plurality shows the
continued importance of religious law. Indian laws are strongly rooted in Hindu concepts. Hindu
concept of Dharma cannot be illustrated the impossibility of distinguishing law from religion.
Modernist reforms have not brought any substantive change in the Hindu law or their customs. Even
in important matters of marriage and divorce, customs are allowed to take precedence over the
general provisions of the law because custom is established.

69
Debarati Halder and K. Jaishankar, ‘Property Rights of Hindu Women: A Feminist Review of Succession Laws of
Ancient, Medieval, and Modern India’, Journal of Law and Religion , vol. 24 , issue 2 , 2008 , pp. 663 – 687.
70
Available at https://www.prd.kerala.gov.in/prd2/keralam/kathayam.htm. Visited on 10th November, 2022.
71
Mary Cheriyan And Anr. v. Bhargavi Pillai Bhasura Devi. AIR 1968 Ker 82.
72
Sundari And Ors v. Laxmi and Ors, 1980 AIR 198, 1980 SCR (1) 404.
73
Werner F. Menski, ‘Hindu Law: Beyond Tradition and Modernity’, Oxford University Press, (2003), pp. 125, 191,
194.
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