1.1Hindu law#
In brief
Who is a Hindu (Section 2 HMA 1955; same pattern in HSA, HAMA, HMGA).
- Sources of Hindu law
- Section 4 HMA
- Mitakshara
- Dayabhaga
Who is a Hindu (Section 2 HMA 1955; same pattern in HSA, HAMA, HMGA). The Acts apply to: (a) Hindus by religion in any form or development, including Virashaivas, Lingayats and followers of the Brahmo, Prarthana or Arya Samaj; (b) Buddhists, Jains and Sikhs; (c) any person domiciled in the territories to which the Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that he would not have been governed by Hindu law or custom but for the Act. Children of Hindu parents (legitimate or illegitimate) and children of a Hindu parent brought up as Hindu, and converts or reconverts, are covered. Scheduled Tribes are excluded unless the Central Government notifies otherwise (Section 2(2)). Perumal Nadar v Ponnuswami (1970) and Yagnapurushdasji v Muldas (1966) are the usual cases on who counts as a Hindu.
Sources of Hindu law
| Category | Content | Exam notes |
|---|---|---|
| Shruti | Four Vedas (Rig, Yajur, Sama, Atharva), Upanishads | ‘Heard’ revelation; basic source |
| Smriti | Dharmasutras and Dharmashastras: Manu, Yajnavalkya, Narada, Brihaspati, Katyayana, Gautama, Vishnu | ‘Remembered’; Manu Smriti oldest and most authoritative among metrical codes |
| Commentaries and digests | Mitakshara (Vijnaneshwara, on Yajnavalkya), Dayabhaga (Jimutavahana), Dattaka Mimamsa, Dattaka Chandrika, Vyavahara Mayukha, Smriti Chandrika, Viramitrodaya | Shape the schools |
| Custom | Ancient, certain, reasonable, continuous, not immoral and not opposed to public policy or statute | Collector of Madura v Moottoo Ramalinga Sathupathy (PC, 1868): clear proof of usage outweighs written text; Section 3(a) HMA defines ‘custom and usage’ |
| Justice, equity and good conscience | Used when no rule exists | Fills gaps |
| Precedents | Privy Council and Supreme Court | Binding under Article 141 |
| Legislation | Hindu Code 1955–56: HMA, HSA, HMGA, HAMA; plus Caste Disabilities Removal Act 1850, Hindu Widows’ Remarriage Act 1856, Hindu Women’s Rights to Property Act 1937 | Statute overrides text and custom where inconsistent (Section 4 HMA) |
Section 4 HMA: the Act overrides any text, rule or interpretation of Hindu law, custom or usage, and any other law in force, to the extent it is inconsistent with the Act.
Schools (applicable to joint family, partition and some succession matters)
-
Mitakshara (all India except Bengal and Assam): sub-schools Benares (Uttar Pradesh, Bihar parts), Mithila (North Bihar), Maharashtra or Bombay (Vyavahara Mayukha is dominant here), Dravida or Madras (south India). Interest by birth; survivorship; coparcenary of male lineal descendants (daughters added by 2005 amendment to Section 6 HSA); inheritance by proximity of blood (nearest-in-blood rule); son cannot be disinherited of ancestral property by father’s gift.
-
Dayabhaga (Bengal and Assam): founded on the doctrine of religious efficacy or spiritual benefit (pinda offering); right arises only on father’s death, so no birth-right; no survivorship, sons hold as tenants in common; father is absolute owner of ancestral property.
| Point | Mitakshara | Dayabhaga |
|---|---|---|
| Author | Vijnaneshwara | Jimutavahana |
| Area | Everywhere except Bengal and Assam | Bengal and Assam |
| Birth-right | Yes (son acquires interest by birth) | No (arises on father’s death) |
| Mode of devolution | Survivorship (and succession for separate property) | Succession only |
| Basis of inheritance | Propinquity (nearness of blood) | Spiritual benefit |
| Share before partition | Fluctuating, unascertained | Definite and ascertained |
| Alienation by coparcener | Not allowed without consent of others (except in limited cases) | Allowed (shares defined) |
| Women | Daughters are coparceners by birth (Section 6 HSA, 2005 amendment) | No birth-right coparcenary; sons and daughters take by succession after the owner’s death |
State amendments: Andhra Pradesh (1986), Tamil Nadu (1989), Karnataka (1994) and Maharashtra (1994) gave daughters coparcenary rights earlier than the 2005 central amendment; Kerala abolished the joint family system in 1975 (Kerala Joint Hindu Family System (Abolition) Act).