UGC NET LAW (058) · UNIT 07 · MODULE 1: START HERE AND SOURCES OF FAMILY LAW · TOPIC 1

Sources and Schools of Family Law

Hindu law (Mitakshara and Dayabhaga), Muslim law and its sources, the smaller personal laws and the Article 13, 14, 15, 25 and 44 framework.

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  • 5-point Memory Capsule
  • Analysis Angle
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What this topic covers

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  1. §OverviewCore idea: India has no single family law.
  2. 1.1Hindu lawWho is a Hindu (Section 2 HMA 1955; same pattern in HSA, HAMA, HMGA).
    • Sources of Hindu law
    • Section 4 HMA
    • Mitakshara
    • Dayabhaga
  3. 1.2Muslim lawPrimary sources: (1) the Quran (word of God; revealed through Prophet Muhammad; only a small fraction of verses are strictly legal); (2) Sunnah or Ahadis (traditions of the…
    • Primary sources
    • Quran
    • Sunnah or Ahadis
    • Ijma
    • Qiyas
  4. 1.3Christian, Parsi and Jewish lawCovers Christians, Parsis, Jews, Anglo-Indians, tribals.
    • Christians
    • Parsis
    • Jews
    • Anglo-Indians, tribals
  5. 1.4Constitutional frameworkCovers Article 13, Articles 14, 15, 21, Article 25–26, Article 44, Entry 5, List III and more.
    • Article 13
    • Articles 14, 15, 21
    • Article 25–26
    • Article 44
    • Entry 5, List III
  6. ★Memory CapsuleThe names, dates and one-line facts from this topic, for daily recall.
  7. ★Analysis AngleHow examiners twist this topic, and how to reason through scenario questions.

Revision mode hides the full explanations and keeps each section's key terms and lists, plus the Memory Capsule and Analysis Angle. Use it from your second read onward.

§Overview#

Core idea: India has no single family law. Each religious community is governed by its own personal law, partly codified and partly uncodified, under the constitutional umbrella of Entry 5 of the Concurrent List (marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters for which parties were subject to personal law immediately before the Constitution). Because it is a Concurrent List entry, both Parliament and State legislatures can legislate, subject to Article 254 (repugnancy and Presidential assent). That is why a State UCC is constitutionally arguable.

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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).

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1.2Muslim law#

In brief

Primary sources: (1) the Quran (word of God; revealed through Prophet Muhammad; only a small fraction of verses are strictly legal); (2) Sunnah or Ahadis (traditions of the…

  • Primary sources
  • Quran
  • Sunnah or Ahadis
  • Ijma
  • Qiyas
  • Secondary sources
  • Schools
  • adoption, wills and legacies

Primary sources: (1) the Quran (word of God; revealed through Prophet Muhammad; only a small fraction of verses are strictly legal); (2) Sunnah or Ahadis (traditions of the Prophet: Sunnat-ul-fail (acts), Sunnat-ul-qawl (sayings), Sunnat-ul-taqrir (tacit approval); Hadis may be mutawatir (continuous), mashhur (well known) or ahad (isolated)); (3) Ijma (consensus of jurists; Ijma of companions, of jurists, of the community); (4) Qiyas (analogical deduction).

Secondary sources: custom (urf) not opposed to the Quran; judicial precedents (Privy Council and Indian courts); legislation; equity or istihsan (juristic preference, used by Hanafis) and istislah (public interest, Malikis).

Schools

Branch School Founder and facts Region or followers
Sunni Hanafi Abu Hanifa (Kufa); uses Qiyas and istihsan; most liberal; his disciples Abu Yusuf and Imam Muhammad Majority of Indian Sunnis
Sunni Maliki Imam Malik (Medina); Al-Muwatta; relies on practice of Medina North and West Africa
Sunni Shafi’i Imam Shafi’i; Al-Risala; systematised usul al-fiqh Kerala (Mappillas), Egypt, East Africa
Sunni Hanbali Ahmad ibn Hanbal; strictest reliance on hadith Saudi Arabia
Shia Ithna Ashari (Twelvers) Imam Jafar al-Sadiq (Jafari law); permits muta, no Aul Majority of Indian Shias
Shia Ismaili (Bohras, Khojas) Distinct inheritance customs among Khojas Gujarat, Maharashtra
Shia Zaidi Zaid bin Ali Yemen, small in India

Muslim Personal Law (Shariat) Application Act, 1937. Section 2: in intestate succession, special property of females (inherited or contractual), marriage, dissolution (talaq, ila, zihar, lian, khula, mubarat), maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs, the rule of decision for Muslims is Muslim personal law, notwithstanding custom. The original Act excluded adoption, wills and legacies unless a person made a declaration under Section 3 (the Act’s 1943 amendment dealt with agricultural land). This is why a Muslim’s will and adoption are not ‘Shariat Act’ matters and why the JJ Act applies to adoption.

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1.3Christian, Parsi and Jewish law#

In brief

Covers Christians, Parsis, Jews, Anglo-Indians, tribals.

  • Christians
  • Parsis
  • Jews
  • Anglo-Indians, tribals
  • Christians: Indian Christian Marriage Act 1872; Indian Divorce Act 1869 (amended 2001); Indian Succession Act 1925; Guardians and Wards Act 1890; plus customary and canon-law elements. English common law doctrines applied through justice, equity and good conscience.

  • Parsis: Parsi Marriage and Divorce Act 1936 (amended 1988); Indian Succession Act 1925 (special rules in Part V Chapter III); customs of Parsi Panchayat; marriage must be by ‘Ashirvad’ ceremony before a priest and two witnesses.

  • Jews: largely uncodified (Cochin and Bene Israel communities); Jewish customs, Indian Succession Act, and the Special Marriage Act for civil marriage.

  • Anglo-Indians, tribals: tribal customs retained in the Fifth and Sixth Schedules and Article 371A and similar provisions; Section 2(2) HSA and Section 2(2) HMA exclude Scheduled Tribes.

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1.4Constitutional framework#

In brief

Covers Article 13, Articles 14, 15, 21, Article 25–26, Article 44, Entry 5, List III and more.

  • Article 13
  • Articles 14, 15, 21
  • Article 25–26
  • Article 44
  • Entry 5, List III
  • Articles 141 and 142
  • Article 13: are personal laws ‘laws in force’? State of Bombay v Narasu Appa Mali (1952) held personal law is outside ‘law’ for Article 13; this is still criticised and was not decided in Shayara Bano (2017), where the majority tested the 1937 Act’s recognition of talaq-e-biddat under Article 14.

  • Articles 14, 15, 21: equality, non-discrimination, personal liberty and privacy; Article 15(3) allows special provisions for women and children.

  • Article 25–26: freedom of religion; ‘essential religious practice’ doctrine (Shirur Mutt, 1954).

  • Article 44: UCC as a Directive Principle (see topic 10).

  • Entry 5, List III (above).

  • Articles 141 and 142: precedent binding; ‘complete justice’ power used for divorces.

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★Memory Capsule: Sources and Schools of Family Law

Memorise

  • Dayabhaga is the school of Bengal and Assam, not Mithila.
  • ‘Mitakshara’ is a commentary on Yajnavalkya Smriti; ‘Dayabhaga’ is a digest, not a commentary on one Smriti.
  • The Shariat Act, 1937 does not cover wills, adoption (original text) or agricultural land (original text).
  • Ijma and Qiyas are independent sources; istihsan is Hanafi, not Shafi’i.
  • Fatwa is not law (Vishwa Lochan Madan v Union of India, 2014: Sharia courts and fatwas have no legal sanction).

★Analysis Angle: Sources and Schools of Family Law

Analyse / traps

Recent trend box: The Supreme Court (Supriyo, 2023) refused to recognise a fundamental right to marry or to read down the Special Marriage Act for same-sex couples, and the review was dismissed in 2025 (verify). Questions now test the interplay between personal law and fundamental rights rather than just listing sources.

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