Who is a Hindu?

A Hindu The term ‘Hindus’ denotes all those persons who profess Hindu religion either by birth
from Hindu parents or by conversion to Hindu faith.

In Yagnapurus dasji v. Muldas[AIR 1966 SC 1119], the Supreme Court accepted the working
formula evolved by Tilak regarding Hindu religion that ‘acceptance of vedas’ with reverence,
recognition of the fact that the number of Gods to be worshiped at large, that indeed is the
distinguish feature of Hindu religion.

A person can be called as a Hindu, who:

● Is a Hindu by religion in any form.
● Is a Buddhist, Jaina or Sikh by religion.
● Is born from Hindu parents.
● Is not a Muslim, Parsi, Christian or Jews and are not governed under Hindu law.

The Supreme Court of India in the landmark case of Shastri vs Muldas expressly defined the
term ‘Hindu’. This case is related to the Swami Narayan temple in Ahmedabad. There are a
group of people called the Satsangi who were managing the temple and they restricted
nonSatsangi Harijans to enter the temple. They argued that Satsangi is a different religion and
they are not bound by Hindu Law. The Supreme Court of India held that the Satsangi, Arya
Samajis and Radhaswami, all these belong to the Hindu religion because they are originated
under Hindu philosophy.

Who are 'Hindus':

In the earliest time the term 'Hindu' had a territorial significance. It only denoted nationality. In
fact the word 'Hindu' is of foreign origin. This designation came into existence with the advent of
Greeks who called the inhabitants of the Indus valley as "Indoi" and later on this designation was

extended to include all persons who lived beyond the Indus valley. In the case of
Yagnapurusholasjiv. Vaishya, the Supreme Court elaborately considered the question as to who
are Hindus and what are the broad features of Hindus religion. The Supreme Court has observed
that the word Hindu is derived from the word Sindhu, otherwise known as Indus river.

The Persians pronounced this word Hindu and namedtheir Aryan brethren'Hindus'. Dr.
Radhakrishnan has also observed that the Hindu civil isation is so called sinceits original
founders or earliest followers occupied the territory drained by the Sindhu (Indus) river system
corresponding to the North West provinces in Punjab. This is recorded in Rig Veda, the oldest of
the Vedas. The people on the Indian side of the Sindhu were called Hindus by the Persians and
later Western invaders. That is the genesis of the word Hindu. Thus, the term Hindu had
originally a territorial and not a creedalsignificance. It implied residence in a well defined
geographical area. Today, the term 'Hindu' has lost its territorial significance. It is also not a
designation of nationality.
1.Hindu by Religion: In this category two types of persons fall - a)Those who are originally
Hindus, Jains, Sikhs or Buddhist by religion, and b)Those who are converts or reconverts to
Hindu, Jain, Sikhs or Buddhist religion. Any person who follows Hindu religion in any of its
forms or development, either by practising it or by professing it, is a Hindu. However it is
difficult to describe what is Hinduism.

Swaminarayana Sampradaya: This sampradaya prevails in Maharastra and Gujarat, founded by

Shajanand (called later Swami Narayan) a Brahmin by birth and the pupil of Ramanuj. The
followers of this Sampradaya were called Satsangi. In Yagna - Purusdasji v Muldas. a question
arose whether the followers of this Sampradaya came within the perview of Hindu or not. Their
main argument was that theSwaminarayan Sampradaya, being a non-Hindu sect and the temple
being also a non-Hindu temple, the HarUans had no right to enter it. This Sampradaya is
different from Hindu Religion. So the provisions of Hindu Law are not applied to this temple.
The Supreme Court decided that this Sampradaya was not different from Hindu Religion and the
provisions are applied to this temple also.

2.Hindu by Birth: A child whose both the parents were Hindus, Sikhs, Jains or Buddhists at the
time of his birth, is regarded as Hindu. If one of the parents is Hindu and the other is Jain, Sikh
or Buddhist, then also the child will be Hindu. It makes no difference that such child does or
does not profess, practise or have faith in the religion of its parents. If after the birth, both or one
of the parents become convert to another religion, the child will continue to be a Hindu, unless,
in the exercise of parental right the child is also converted into the religion in which the parent or
parents have converted (In case of legitimate child this right is on father, and in illegitimate case
is on the mother).
A person child is brought up as a member of the tribe, community, group or family to which
Hindu parent belonged at the time of his birth.
f both the parents of a child are not Hindu and the child is brought up as a Hindu, the child will
not be Hindu unless he becomes converted Hindu.

3.Who are not Muslims, Christians, Parsis or Jews: Any person who is not a Muslim,
Christian, Parsi or Jew and who is not governed by any other law, is governed by Hindu law,
unless it is proved that Hindu law is not applicable to such a person (Raj Kumar v/s Barbara).
Those persons who are atheists or who believe in all faiths, or in conglomeration of faiths, may
fall under this class.

4. Converts and Reconverts are also Hindus : SC, in the case of Peerumal v Poonuswami AIR
1971, has held that a person can be a Hindu if after expressing the intention of becoming a
Hindu, follows the customs of the caste, tribe, or community, and the community accepts him. In
Mohandas vs Dewaswan board AIR 1975, Kerala HC has held that a mere declaration and
actions are enough for becoming a Hindu.

Concept of Dharma

Introduction

The previous mentioned prayer in simple and short is the basis of highest ideal of human life i.e.
Dharma, evolution in Ancient India. Dharma, in concept deals with duty, religion and
inseparable quality of a thing or orders i.e. virtuous conduct of righteous man and dharma in
literal sense means ‘something which sustains or upholds’ and is a Sanskrit noun derived from
root ‘dhr’. Dharma is semantic equivalent to the Greek word ‘ethos’. Dharma is the Indian
version of Natural law, how Indians perceived it in ancient society but the vision of them was
very far-fetched and is praised by many imminent personalities like Max Muller

Dharma in contradiction to general opinion does not mean religion nor supports any, but it is a
whole body of rules and believes including in itself the religious rights, rules of conduct and
duties. Here when we talk about religious rights or duties, it does no prefer anyone over the other
but describes it for all religions. Dharma as said by Jaimini is, “founded on the revelation which
is conducive to the welfare of the society, ordained by the great Vedas”. Dharma is primarily
based on the Vedas and has many indices such as Sruti, Smriti and moral laws (sadachar) and
governed the lives of people in the ancient time. Dharma was a duty based legal system that is
every individual owed a duty towards other member of the society as Duguit says “The only
right which any man can possess is the right to do his duty, his theory of Social Solidarity states
that even the sovereign or the state does not stand in any special position or privilege and its
existence is justified only so long as it fulfils its duty.”, which is in direct contrast to the present
day legal system which specifies rights rather than the duties. We will see in this research project
the close relation between Dharma and the current legal system.

Meaning Of Dharma

Dharma is generally accepted to have been derived and supersede from the vedic concept of Rita,
which literally meant, ’the straight line’. Rita refers to the Law of Nature, it signifies moral laws,
and based on righteousness. When something is Rita it simply meant that thing is true, right and
nothing more. Dharma evolved side by side of Rita but eventually took over it as the old concept
of Rita was not able to cope and solve the issue emerging with increasing social complexities.
Dharma signifies Natural law.
Dhrama, as been said by Justice M. Rama Jois is, “Dharma is that which sustains and ensures
progress and welfare of all in this world and eternal bliss in the other world. The Dharma is
promulgated in the form of command”. Mahabhartha also contains a discussion on the issue of
defining dharma . Dharma in words of Madhavacharya is, “It is most difficult to define Dharma.
Dharma has been explained to be that which helps the upliftment of living beings. Therefore that
which ensures welfare (of living beings) is surely Dharma. The learned rishis have declared that
which sustains is Dhrama.”

Dharma is anything that is right, just and moral. Dharma aims for the welfare of state and mainly,
its people.

Origin Of Dharma

Dharma originated from Vedas which are Sruti (heard knowledge) and they are the supreme
source of knowledge for humans, as the narration of what is heard from the ancient priests that is
Sruti and they contains narration on everything possible ranging from military to politics to
common people’s life. Its other sources are Smriti, which are the interpretation of Vedas and four
sages have propounded the dharmasastras and are called Smritikars. They are:

1. Manu
2. Yagnavalkaya
3. Brihaspati
4. Narada

The other source has been Puranas which are eighteen in number and contains information about
the creation and dynasties of god, sages and kings and detailed description of yugas. All the
sources are on the same footstep and no one has supremacy over the other.

Idea which made people adhere to the Dharma can be illustrated by one verse from
Brihadaranyaka Upnishad which is, “punyo vai punyena Karmana bhavati, Papah Papeneti”,
meaning ‘everyone becomes good by good deeds and bad by bad deeds’, in other words ‘every
one reaps what he sows’ and what’s good is defined by Dharma.

Functioning Of Dharma

Dharma is sanatana, i.e. which has eternal values; one which is neither time-bound nor space
bound. The concept of Dharma is with us from time immemorial. Dharma is different from
religion; however they are commonly misinterpreted to mean the same and thence used
interchangeably. As the above said was distinguished by Justice J. Hansaria in A.S. Narayana
Deekshitulu vs State Of Andhra Pradesh & Ors by quoting Swami Rama’s book ‘A Call to
Humanity’ by the following words:

“Religion is enriched by visionary methodology and theology, whereas dharma blooms in the
realm of direct experience. Religion contributes to the changing phases of a culture; dharma
enhances the beauty of spirituality. Religion may inspire one to build a fragile, mortal home for
God; dharma helps one to recognize the immortal shrine in the heart.”

The supremacy of Dharma can be understood from a simple point that the King was not above
Dharma, he was governed by it, and if he didn’t than the Dharmashastrakara give right to the
public to revolt against such an unjust, arbitrary and unrighteous king or government. The
treaties of Manu, Kautilya and others contains many rights and duties of both the king and the
public, and even recognised individual rights like right to private property, personal wealth etc.,
which were bound by the law for interest of society at large.

Decline Of Dharma And Advent Of Positive Law

With the advent of Muslim rule followed by British rule, Dharma (Hindu) started losing its gloss
and roots. During Muslim rule, the place of dharma was taken by koranic teachings, though
many practises remained, hence it remained mainly untouched. But, with the onset of British
rule, and their ignorance of the Indian laws had a devastating effect on the concept of Dharma as
they found no laws here to govern people and they started to fix the issue by either importing
western law or say natural law with the devices of equality, justice and good conscience or
imposing western laws by means of codification in fields where no law was offered by either the
Hindu’s or Muslim’s Natural law, teachings and customs. But the civil rights and liberties
enjoyed by people were taken away. Indians were treated ruthlessly and arbitrary suppressed in
every sphere of life ranging from political to social and economical. Indians fought back for the
rights and liberties that they enjoyed before under the Law of Dharma. During his famous
champaran trial, Gandhiji remarked that he disobeyed the law not to show disrespect to British
law, ‘but in obedience to higher law of our being – the vice of conscience’, by which he meant
Dharma.

Post-Independence Era

The struggle for independence was the struggle for basic rights and civil liberties that one as a
basic human being should enjoy and the same was kept in mind, while making The Constitution
of India. Hindu law (Dharma) started to been codified according to the changes in outlook and
lifestyles, as it was realised that ancient way should yield to realistic approach of life. The
principles of natural law (Dharma) found its way into the constitution in the way of fundamental
rights. Dharma was codified Dharma as we all know was a duty based legal system but the
current legal system became a right based one. Of course, these rights comes are not absolute
that they too have certain restrictions. Right to equality, freedom of movement and most cherish
able right to life are some of the fundamental rights provided. But, there are ample evidences
from the history of the world as well from ours to show the misuse of power whether it been the
Hitler’s Nazi or the infamous Emergency imposed by Indira Gandhi and what followed is
enough to question the very spirit on which our constitution was founded.

The judiciary gave a decision in Habeas Corpus case on a day truly referred as ‘the black day of
Indian legal history”, which further deterred the belief of people in judiciary. In this decision the
personal liberties and fundamental rights were taken away arbitrarily and the Honourable
Supreme Court in not so Honourable decision justified it for personal gains, but, soon after the
mistakes were started to be corrected. The fundamental rights were made absolute in famous I.C.
Golaknath case, and later the doctrine of basic structure was propounded by the Honourable
Supreme Court in His Highness Keshvananda Bharti case, the attitude changed from absolute to
relative but law can never be static hence absolute, otherwise it becomes vague and useless. The
doctrine thus founded can be said to have following features:

1. Supremacy of the Constitution;

2. Republican and Democratic form of Government;
3. Secular character of the Constitution;
4. Separation of powers between the legislature, executive and the judiciary, and
5. Federal character of the Constitution.

Article 21- Right To Life

The article needs special mention as the Supreme Court has been interpreting this article
according to the cases and has widened the ambit many folds to cover right to livelihood, life is
more than mere animal existence, right to legal aid, Rights to dignity of a convict and much more
but does not include Right to die. Article 21 is ever growing not bound by time and place. Like
Dharma included every aspect and facet of human life whether internal or external and provided
a law to govern it and safe-guard; the same is been done by Article 21 with the help of other
fundamental rights. Article 21 is large and wide and has a potential to confer every basic human
right that one needs to live a life of a dignified human.

Evolving ‘Concept Of Dharma’

The concept of dharma or simply dharma has been used by various courts in helping them to
arrive at decisions even by the Honourable Supreme Court in many cases. One of the important
cases is Shri A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors, which elaborately
discusses the questions related to Dharma, ‘what is dharma?’, ‘Is Dharma same as Religion?’
And every answered each and every doubt. Dharma as said above is distinct from religion.
Dharma even regulates the law today, by means of morality in and outside the courts as in the
Secretary, Ministry Of Information & Broadcasting v. Cricket Association of Bengal & ANR. .
In Dattatraya Govind Mahajan vs. State of Maharashtra, the court talks about the Dharma of the
Constitution, and the karma of adjudication. Dharma thought to be an orthodox area is used in
the cases much unorthodox prime facie such as rights to transgenders. Dharma is been used by
the courts as prestigious as Constitutional benches and used in place and equivalent of duty and
truth and even the flag contains the dharma chakra of Ashoka. The courts have interpreted
articles 25 and 26, in line with Dharma, they have said when the articles are read and religion
means Dharma that is co-existence with welfare of others, not an orthodox view. The concept of
dharma as said earlier is fully explored in Narayana Deekshitulu vs State Of Andhra Pradesh &
Ors, there is a comparison between the constitutional laws and Raja Dharma, the definition of
dharma is tried to be clarified by using different verses from everywhere, ‘Dharma in context of
Rajya only means law’ and Dharma is secular or maybe the most secular. The same view is held
until now, by all the courts and is not disputed that Dharma is an eternal bliss, which has seen
many par and parcels of human life, mortals, but remained immortal.

A Comparsion

Dharma signifies regularity of order universally accepted, it includes religion, duty, and
inseperable of a quality or an order, whereas present day law is based on reasons and does
include religious aspects. Dharma is duty based concept, however the present law focuses on
rights rather than duties. Dharma in itself included morals, ethics and righteous conduct of a man
but the present system does not recognises the moral or ethical values and rather than conduct or
motive, it now focuses on the act and the consequences. Dharma pre-supposes a supernatural and
binds together by the fear of the same supernatural but on the other hand the law is based on
reasonableness and binds through legal sanctions given by courts (human). Law in modern sense
is confined to rights, legal duties etc. And not with righteous conduct and hence, is particular in
nature whereas Dharma is all pervasive and universal. The law pre-supposes man’s idea of ‘what
ought to be’ and is based on reasonableness.

The concept of welfare state, which is the nature of state today, is found to have roots in Dharma.
The Human Rights and fundamental rights have spurred from Dharma and Rigveda clearly
shows ample evidences.

Conclusion
Dharma and law as seen above may seem to be in contrast, but the ideology behind them is same.
At large, law is a part of Dharma without disharmony and they constitute single integrated
whole. Dharma on one hand is taken to be religious, but it is not so and the same has been
approved by the Honourable Supreme Court in many cases as pointed in above sections. Dharma
has been and is guiding our conduct, morals and laws in varying degree. One may not find any
relation between the two on the face but on a deep analysis both are interrelated integrated
whole. ‘Dharma’ is one of the many sources of modern law and is shaping society. Hence, it can
be said that ‘dharma’ and law are closely related and interwoven. Dharma by passing the test of
time has shown its eternal character

Essentials of valid Custom

Introduction

Hindu Law

Laws are the basic structure on which the country is built and which regulate the functioning of
three organs of the government namely Legislature, Executive and judiciary. Law can also be
defined as ‘Dharma’ itself, which means it is the duty of a person. Indian system has two
different types of laws namely – Territorial or General laws and personal laws. Hindu law is one
such personal law. Hindu law is the rules made for the peaceful existence of the people in the
society. Hindu law has been considered as one of the oldest forms of law.

It has been derived from the word ‘Sindhu’ which is a designation for the Indus River. Hindu law
is believed to be derived from God himself or they are considered to be the words of God,
revelation by the god himself and so it is very divine. Hindu law was codified by the
Dharmashastra writers. Hindu law governs Hindu’s in their many social aspects such as
marriage, divorce, adoption, minority and guardianship, inheritance, and other family matters.

There are various sources of Hindu law which were broadly divided into two categories- Ancient
sources and Modern sources. Ancient sources include Sruti or vedas, Smriti or Dharmashastras,
Commentaries and Digests, Customs and usages. Modern sources include Judicial Decisions or
Precedents, Legislation, Justice Equity and Good Conscience.

Customs

Now let us briefly understand the word ‘Custom’. Custom can be considered as the principle
source for the development of the Hindu Law. Custom in common parlance is an act or
behaviour which is repetitive or is traditionally accepted or can also be defined as a habitual
practice that a person is uniformly following for a long time. It can also be termed as ‘Rule of
Conduct’.

From the time back ‘Achara’ that is custom is regarded as the highest of all ‘Dharma’. Customs
differs from area to area and family to family. Customs are not static rather they are such that
they keep changing and evolve with time. According to manusmriti if the custom is proved it
will overpower and prevail over written text or laws.

Section 3 of Hindu Marriage Act, 1955 defines custom as a rule which is followed for a long
time and has obtained the force of law among people of the Hindu community. It also stated that
custom must be ancient, must be reasonable, and it should not be in derogation to the laws of the
country.

Types of Custom that shaped Hindu Law

Customs are mainly of four types. They are: Local Customs,General Custom, Family Customs,
Class or Caste Custom.

Local Custom

These are the customs or practises that are binding on people belonging to the Hindu community
of a particular geographical area. Thus the major part of that particular place culture.

General custom

These are the customs or practises that prevail in the country as a whole. Example indian
customs and traditions are the major attraction for tourists. Some of them are the ‘Namaste’
which is used to greet people, ‘Tilak’ a ritual remark which is a sign of blessings or
auspiciousness.

Family Custom

Family Custom can be defined as family tradition or family culture, which they are following
from a long time which was given by their ancestors long back. It can also be stated as the
environment in which a person is born and brought up by their parents and ancestors.

Class or Caste Custom

These are the customs for a particular caste or sector or class of people such as traders,
agriculture , businesses etc. Every caste or class has different traditions to be followed which
they have been following for a long time which can be named as class or caste custom.

Essentials of valid Custom

Customs can be anything which explains the behavioural pattern of a certain group of people, it
can be an act on the basis of which group of people can be classified. They are one of the earliest
sources of law. It can alternatively be called as traditions, cultural ideology and cultural
philosophy.

There are various essentials for a custom to be a valid custom and to have the force of law:

Ancient

The custom must be ancient, which should have been established much earlier and have existed
for a long time uniformly. Antiquity of a custom is an essential and foremost element of a valid
custom. Customs must belong to a very distant past. It must be followed by people from time
immemorial. Though Hindu Law did not fix any particular period of time to judge the antiquity
of the custom but English Law fixed year 1189 to test the antiquity of the custom.

Invariable and continuous

Customs to be valid has to be practiced for a specific period of time and should be still in
existence. It could be taken as evidence for having the force of law and for having custom
accepted in the eyes of laws. It should be followed without any interruption. If a custom is not
continued for a period of time or is discontinued it comes to an end and such tradition or practise
is no longer considered to be a custom.

Clear and unambiguous evidence

There should be clarity in giving the evidence of a custom. The group of people who are
following it must prove it through their actions or acts or general instances for the existence of
such custom. In collector of Madura v. Mootoo Ramalinga, the court held that if there is clear
proof of custom, it will supersede the written text or laws.

Reasonable
The custom must be supported by the valid reasons for being followed. To consider it as a valid
custom it is necessary that such custom has been derived from a series of reasons. It has some
reasonableness for its existence. It should be based on the right to be enforceable. It should not
be based on certain assumptions which are not acceptable.

Not opposed to morality or public policy

Customs should not be against the public policy which means it should aim at the well being of
the people, good of the people. Customs should not be against the social rules. Customs should
not be against the moral values or set of ethical standards that the society follows.

Not opposed to any law

Customs to be valid and accepted in the eyes of law, it must not be in derogation with the laws of
the country. The customs must not be opposed to dharmashastras. It must not be forbidden by
any laws or enactment of the legislature. It is necessary that customs are collateral with the laws
to be accepted as a valid custom.

SOURCES OF HINDU LAW

The phrase “source of law” has several connotations. It may be the authority which issues rules
of conduct which are recognized by Courts as binding. In this context, “source of law‟ means
“the maker of law”. It may mean the social conditions which inspires the making of law for the
governance of the conditions. In this context it means „cause of law‟. It may also mean in its
literal sense the material from which the rules and laws are known. In this sensethe expression
means the “evidence of law‟ and it is in this sense that the expression “source of law‟ is accepted
in Jurisprudence.

Sources of Hindu Law can be divided into two parts - Ancient and Modern.

1. ANCIENT SOURCES
Before the codification of Hindu Law, the ancient literature was the only source of the law.
These sources can be divided into four categories:

1. Shruti
It literally means that which has been heard. The word is derived from the root “shru” which
means ‘to hear’.
o In theory, it is the primary and paramount source of Hindu law and is believed to be the
language of the divine revelation through the sages.
o The synonym of Shruti is veda. o It is derived from the root “vid” meaning ‘to know’.
o The term Veda is based on the tradition that they are the repository of all knowledge.

There are four Vedas namely,

● Rig Veda (containing hymns in Sanskrit to be recited by the chief priest),
● Yajurva Veda (containing formulas to be recited by the officiating priest),
● Sama Veda (containing verses to be chanted by seers)
● Atharva Veda (containing a collection of spells and incantations, stories, predictions,
apotropaic charms and some speculative hymns).

Each Veda has three parts viz.

Sanhita (which consists mainly of the hymns),

Brahmin (tells us our duties and means of performing them) and
Upanishad (containing the essence of these duties).

The shrutis include the Vedas along with their components.

2. Smritis
o The word Smriti is derived from the root “smri” meaning ‘to remember’. Traditionally, Smritis
contain those portions of the Shrutis which the sages forgot in their original form and the idea
whereby they wrote in their own language with the help of their memory. Thus, the basis of the
Smritis is Shrutis but they are human works.

There are two kinds of Smritis viz Dharma Sutras and Dharma Shastras. Their subject matter is
almost the same. The difference is that the Dharmasutras are written in prose, in short maxims
(Sutras) and the Dharmashastras are composed in poetry (Shlokas).
However, occasionally, we find Shlokas in Dharmasutras and Sutras in the Dharmashastras. In a
narrow sense, the word Smriti is used to denote the poetical Dharmashastras.

The number of Smriti writers is almost impossible to determine but some of the noted Smriti
writers enumerated by
Yajnavalkya (sage from Mithila and a major figure in the Upanishads) are Manu, Atri, Vishnu,
Harita, Yajnavalkya, Yama, Katyayana, Brihaspati, Parashar, Vyas, Shankh, Daksha, Gautama,
Shatatapa, Vasishtha, etc.

The rules laid down in Smritis can be divided into three categories viz.
Achar (relating to morality),
Vyavahar (signifying procedural and substantive rules which the King or the State applied for
settling disputes in the adjudication of justice) and
Prayaschit (signifying the penal provision for commission of a wrong).

3. Digests and Commentaries-

After Shrutis came the era of commentators and digests. Commentaries (Tika or Bhashya) and
Digests (Nibandhs) covered a period of more than thousand years from 7th century to 1800 A.D.

In the first part of the period most of the commentaries were written on the Smritis but in the
later period the works were in the nature of digests containing a synthesis of the various Smritis
and explaining and reconciling the various contradictions.

The evolution of the different schools of Hindu law has been possible on account of the different
commentaries that were written by various authorities. The original source of Hindu law was the
same for all Hindus. But schools of Hindu law arose as the people chose to adhere to one or the
other school for different reasons.

The Dayabhaga and Mitakshara are the two major schools of Hindu law.

The Dayabhaga school of law is based on the commentaries of Jimutvahana (author of

Dayabhaga which is the digest of all Codes) and the Mitakshara is based on the commentaries
written by Vijnaneswar on the Code of Yajnavalkya.

4. Custom
Custom is regarded as the third source of Hindu law. From the earliest period custom (‘achara’)
is regarded as the highest ‘dharma’. o As defined by the Judicial Committee custom signifies a
rule which in a particular family or in a particular class or district has from long usage obtained
the force of law.

(a) Local custom – these are customs recognised by Courts to have been prevalent in a particular
region or locality.
(b) Class custom – these are customs which are acted upon by a particular class. Eg. There is a
custom among a class of Vaishyas to the effect that desertion or abandonment of the wife by the
husband abrogates the marriage and the wife is free to marry again during the life-time of the
husband.
(c) Family custom – these are customs which are binding upon the members of a family. Eg.
There is a custom in families of ancient India that the eldest male member of the family shall
inherit the estates.
Deivanai Achi v. chidambaram (1954) Mad. 667 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.

2. MODERN SOURCES

1. Justice, equity and good conscience

Occasionally it might happen that a dispute comes before a Court which cannot be settled by the
application of any existing rule in any of the sources available. Such a situation may be rare but
it is possible because not every kind of fact situation which arises can have a corresponding law
governing it.
The Courts cannot refuse to the settle the dispute in the absence of law and they are under an
obligation to decide such a case also. For determining such cases, the Courts rely upon the basic
values, norms and standards of fair play and propriety.

In terminology, this is known as principles of justice, equity, and good conscience. They may
also be termed as Natural law. This principle in our country has enjoyed the status of a source of
law since the 18th century when the British administration made it clear that in the absence of a
rule, the above principle shall be applied.

2. Legislations

Legislations are Acts of Parliament which have been playing a profound role in the formation of
Hindu law. After India achieved independence, some important aspects of Hindu Law have been
codified. Few examples of important Statutes are The Hindu Marriage Act, 1955, The Hindu
Adoptions and Maintenance Act, 1956, The Hindu Succession Act, 1956, The Hindu Minority
and Guardianship Act, 1956, etc.

After codification, any point dealt with by the codified law is final. The enactment overrides all
prior law, whether based on custom or otherwise unless an express saving is provided for in the
enactment itself. In matters not specifically covered by the codified law, the old textual law
contains to have application.

3. Precedents

After the establishment of British rule, the hierarchy of Courts was established. The doctrine of
precedent based on the principle of treating like cases alike was established. Today, the decisions
of Privy Council are binding on all the lower Courts in India except where they have been
modified or altered by the Supreme Court whose decisions are binding on all the Courts except
for itself.

SCHOOLS OF LAW :

Due to the emergence of various commentaries on SMIRITI and SRUTI, different schools of
thoughts arose. The commentary in one part of the country varied from the commentary in the
other parts of the country. School means rules and principles of Hindu Law which are divided
into opinion. It is not codified.

There are two Schools of Hindu Law:- a) Mitakshara b) Dayabhaga.

Mitakshara School prevails throughout India except in Bengal. It is a running commentary on the
code of Yajnavalkya (Yajnavalkya Smriti). Mitakshara is an orthodox School whereas the
Dayabhaga is Reformist School. The Mitakshara and Dayabhaga Schools differed on important
issues as regards the rules of inheritance. However, this branch of the law is now codified by the
Hindu Succession Act, 1956, which has dissolved the differences between the two. Now, the
main difference between them is on joint family system.

Mitakshara- Rights in the joint family property is acquired by birth, and as a rule, females have
no right of succession to the family property. The right to property passes by survivorship to the
other male members of the family.
Dayabhaga- Rights in the joint family property are acquired by inheritance or by will, and the
share of a deceased male member goes to his widow in default of a closed heir.

MITAKSHARA SCHOOL

Mitakshara School:
Mitakshara is one of the most significant schools of Hindu law
It is a running editorial of the Smriti composed by Yajnvalkya.
This school is relevant in the entire piece of India with the exception of West Bengal and Assam.
The Mitakshara has a wide ward. Anyway, various pieces of the nation specialize in legal matters
diversely due to the distinctive standard principles followed by them.

Mitakshara is additionally isolated into five sub-schools in particular

o Banaras Hindu law school
o Mithila Law school
o Maharashtra law school
o Punjab law school
o Dravida or madras law school

These law schools go under the ambit of Mitakshara graduate school. They appreciate a similar
basic guideline however vary in specific conditions.

Benaras school of hindu law This law school goes under the authority of the Mitakshara graduate
school and covers Northern India including Orissa. Viramitrodaya Nirnyasindhu vivada is a
portion of its significant discourses.

Mithila school of hindu law This law school practices its clout in the regional pieces of tirhoot
and north Bihar. The standards of the graduate school win in the north. The significant analyses
of this school are Vivadaratnakar, Vivadachintamani, smritsara.

Maharashtra or Bombay school of hindu law The Maharashtra law school has the power to
practice its locale over the regional parts including Gujarat Karana and the parts where there is
the Marathi language are capably spoken. The fundamental specialists of these schools are
Vyavhara Mayukha, Virmitrodaya, and so forth.

Madras school of hindu law This law school will in general spread the entire southern piece of
India. It additionally practices its specialists under Mitakshara graduate school. The primary
specialists of this school are Smriti Chandrika, Vaijayanti, and so on.

Punjab school of hindu law This law school was prevalently settled in east Punjab. It had built up
its own traditions and conventions. The fundamental critiques of this school are viramitrodaya
and it built up customs.

DAYABHAGA SCHOOL

● Dayabhaga school overwhelmingly won in Assam and West Bengal.

● This is additionally one of the most significant schools of Hindu laws.
● It is viewed as a summary of the main smritis.
● Its essential center was to manage parcel, legacy and joint family.
● As indicated, it was fused in the middle of 1090-1130 A.D

Dayabhaga school was planned with the end goal of annihilating the various foolish and
counterfeit standards of legacy.
The prompt advantage of this new condensation is that it will in general evacuate all the
deficiencies and impediments of the recently settled standards and consideration of numerous
cognates in the rundown of beneficiaries, which was limited by the Mitakshara school.

The main features of this School are as follows:

● Sapinda relation is by pinda offerings.

● The right to Hindu joint family property is not by birth but only on the death of the father.
● The system of devolution of property is by inheritance.
● The legal heirs (sons) have definite shares after the death of the father.
● Each brother has ownership over a definite fraction of the joint family property and so
can transfer his share.
● The widow has a right to succeed to husband‟s share and enforce partition if there are no
male descendants.
● On the death of the husband the widow becomes a co-parcener with other brothers of the
husband. She can enforce partition of her s
hare.