Due to the emergence of various commentaries on Smriti 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.
BECAUSE OF THESE DIFFERENCES TWO MAIN SCHOOLS EMERGED:
MITAKSHARA SCHOOL, DAYABHAGA SCHOOL
MITAKSHARA SCHOOL:
The Mitakshara School exists throughout India except in the State of Bengal and Assam. The Yagna Valkya Smriti was commented on by Vigneshwara under the title Mitakshara. The followers of Mitakshara are grouped together under the Mitakshara School.
Mitakshara school is based on the code of yagnavalkya commented by vigneshwara. Inheritance is based on the principle or propinquity i.e. The nearest in blood relationship will get the property.
The school is followed throughout India except Bengal state. Sapinda relationship is of blood. The right to hindu joint family property is by birth. So, a son immediately after birth gets a right to the property.
The system of devolution of property is by survivorship. The share of co-parcener in the joint family property isnot definite or ascertainable, as their shares are fluctuating with births and deaths of the co-parceners. The co-parcener has no absolute right to transfer his share in the joint family property, as his share is not definite or ascertainable.
A women could never become a co-parcener.
The widow of a deceased co-parcener cannot enforce partition of her husband's share against his brothers.
There are four Sub-Schools under the Mitakshara School:
i.Dravida School : (Madras school)
It exists in South India. In the case of adoption by a widow it has a peculiar custom that the consent of the sapindas was necessary for a valid adoption. ('Sapindas' - blood relation)
Collector of Madura vs. Mootoo Ramalinga Sethupathy (Ramnad case):
The zaminder of Ramnad died without sons and in such a condition, the zamindari would have escheated to the Government, the widow Rani Parvatha vardhani made an adoption of a son, with the consent of the sapindas of her husband.
But on the death of the widow, the Collector of Madhura notified that the Zamindari would escheat to the State. The adopted son brought a suit for declaration of the validity of the adoption. It was a question whether a widow can make a valid adoption without her husband's consent but his sapinda's consent.
The Privy Council, after tracing the evolution of the various Schools of Hindu law, held that Hindu law should be administered from clear proof of usage which will outweigh the written text of law. Based on the Smriti Chandrika and Prasara Madhviya, the Privy Council concluded that in the Dravida School, in the absense of authority from the husband, a widow may adopt a son with the assent of his kindred.
ii. MAHARASHTRA SCHOOL: (BOMBAY SCHOOL)
It exists in Bombay (Mumbai) , From the above four bases, there are two more bases. They are Vyavakara, Mayukha and Nimaya Sindhu. The Bombay school has got an entire work of religious and Civil laws.
iii. BANARAS SCHOOL :
It exists in Orissa and Bihar. This is a modified Mitakshara School.
iv. MITHILA SCHOOL :
It exists in Uttar Pradesh near the Jamuna river areas. Apart from the above schools, there are four more schools which are now existent today. They are Vyavakara, Mayukha Nimaya and Sindhu Schools.
DAYABHAGA SCHOOL:
It exists in Bengal and Assam only. The Yagna Valkya smriti is commented on by Jimootavagana under the title Dayabhaga. It has no sub-school. it differs from Mistakshara School in many respects.
Dayabhaga School is based on the code of yagnavalkya commented by Jimutuvahana, Inheritance is based on the principle of spiritual benefit. It arises by pinda offering i.e. rice ball offering to deceased ancestors.
This school is followed in Bengal state only. 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 share.
Showing posts with label FL. Show all posts
Showing posts with label FL. Show all posts
Saturday, September 6, 2008
Doctrine of factum valet
1. CONVENTIONAL CUSTOM :
This custom arose out of contract, Parties to contract generally used certain terms for their contract to be observed in their transactions. The Sale of Goods Act., Partnership, Agency, etc., are based on the conventional customs.
2. PERSONAL CUSTOM :
It relates to only a few individuals and it does not involve the people in general. For e.g., Easementary right is out of a personal custom.
3. LOCAL CUSTOM :
It is observed in a particular locality alone. For e.g., in a particular locality, there may be a custom to conduct marriage after performing certain ceremonies, which may not be present in any other locality.
4. GENERAL CUSTOM :
It is observed throughout the State. It is part of the common law of the land.
ESSENTIALS FOR A VALID CUSTOM :
1.REASONABLENESS:
The custom must be reasonable. It should not affect the society in any way. It should satisfy the principles of Natural justice. If a custom is unreasonable, then it is not valid and will not become a law For e.g. if a custom recognizes that a woman can marry more than one man, it is unreasonable and will not become a law.
2.CONFORMITY:
The custom should be in conformity with the established law of the land. If a custom is inconsistent with the law of the land, then it is invalid. For e.g. slavery is an offence under the Indian Penal Code, if a custom recognises slavery, then such custom is invalid.
3.OPINION :
The public must feel that the particular custom is beneficial for them. They must think that such a custom is a binding rule of the community and it should not be of individual choice.
4.OBSERVANCE :
A mere practice of custom will not become law. It must be observed freely and voluntarily.
5.IMMEMORIAL ANTIQUITY :
The origin of the Custom should be from time immemorial. the origin should not be traced. No living man must remember its origin. Recent customs or modern customs are not valid customs. Fashion is not custom. In England, a custom must have existed continuously from 1189 A.D. to be considered valid.
6.CONTINUITY:
The custom should be followed without interruption. It must be followed continuously.
7.PEACEFULNESS :
The custom must have been observed peacefully. In other words, it should not be protested in any way by the public or part of the public.
8.CERTAINTY :
The custom must be certain and definite. It should not be vague. If a custom is indefinite, then it is invalid.
9. CONSISTENCY WITH OTHER CUSTOMS :
The custom should not be opposed to other customs. Suppose two different customs exist which are inconsistent to each other, then both the customs are invalid.
This custom arose out of contract, Parties to contract generally used certain terms for their contract to be observed in their transactions. The Sale of Goods Act., Partnership, Agency, etc., are based on the conventional customs.
2. PERSONAL CUSTOM :
It relates to only a few individuals and it does not involve the people in general. For e.g., Easementary right is out of a personal custom.
3. LOCAL CUSTOM :
It is observed in a particular locality alone. For e.g., in a particular locality, there may be a custom to conduct marriage after performing certain ceremonies, which may not be present in any other locality.
4. GENERAL CUSTOM :
It is observed throughout the State. It is part of the common law of the land.
ESSENTIALS FOR A VALID CUSTOM :
1.REASONABLENESS:
The custom must be reasonable. It should not affect the society in any way. It should satisfy the principles of Natural justice. If a custom is unreasonable, then it is not valid and will not become a law For e.g. if a custom recognizes that a woman can marry more than one man, it is unreasonable and will not become a law.
2.CONFORMITY:
The custom should be in conformity with the established law of the land. If a custom is inconsistent with the law of the land, then it is invalid. For e.g. slavery is an offence under the Indian Penal Code, if a custom recognises slavery, then such custom is invalid.
3.OPINION :
The public must feel that the particular custom is beneficial for them. They must think that such a custom is a binding rule of the community and it should not be of individual choice.
4.OBSERVANCE :
A mere practice of custom will not become law. It must be observed freely and voluntarily.
5.IMMEMORIAL ANTIQUITY :
The origin of the Custom should be from time immemorial. the origin should not be traced. No living man must remember its origin. Recent customs or modern customs are not valid customs. Fashion is not custom. In England, a custom must have existed continuously from 1189 A.D. to be considered valid.
6.CONTINUITY:
The custom should be followed without interruption. It must be followed continuously.
7.PEACEFULNESS :
The custom must have been observed peacefully. In other words, it should not be protested in any way by the public or part of the public.
8.CERTAINTY :
The custom must be certain and definite. It should not be vague. If a custom is indefinite, then it is invalid.
9. CONSISTENCY WITH OTHER CUSTOMS :
The custom should not be opposed to other customs. Suppose two different customs exist which are inconsistent to each other, then both the customs are invalid.
SOURCES OF HINDU LAW
SOURCES OF HINDU LAW :
Hindu Law is mainly a law governing the Hindus. It is based on immemorial custom, and secular law which was called Dharma.
ANCIENT SOURCES :
Ancient sources are Sruti, Smrits, Commentaries and digests, Sadachara or Custom and Doctrine of factum valet.
SRUTI:
The Srutis are regarded as of divine origin from Vedas. Sruti literally means "What was heard" by the sages in a revelation by God which include the four vedas (by sage Vyas) namely Rig, Yajur, Sama and Atharvana Vedas, the six vedangas and the Upanishads. The period of Vedas is estimated to be 4000-1000 B.C. The Vedas are revelations of the Almighty. These vedas contained practically no law; they dealt with different forms of marriage, adoption, partition and the exclusion of women from inheritance.
SMRITIS :
It means "What was remembered". These are what were recorded by the sages in their own words of what they had heard from God. The smritis are classified as Primary Smirities and Dharmastras which constitute important sources of law. Among the Smritis, the Naradha Smritis and the Manu Smriti are very important. All these Smritis deal with the civil and criminal law, the laws of marriage and the rules of procedural law.
Next to the Vedas, Smritis are the most important source of Hindu law. The early smritis were termed as dharma sutras which were mostly in prose form. The later smritis were termed as dharma shastras, which are more systematic expostions than dharma sutras. The oldest smriti is the manu smriti. The manu smriti deals with 18 titles relating to civil and criminal law, marriage, and procedural law. The Yagnavalkya smriti (containing1010 slokas) provides that king was subordinate of Law. The other smrities are the Narada smriti and Brihaspati smriti which deal with legal subjects. Narada smriti recognised the power of the kings to make laws.
COMMENTARIES AND DIGESTS :
Since the Smritis did not agree with each other, they gave rise to commentaries which are otherwise called 'Nibandhas'. They were writen during the period between 700 A.D. to 1700 A.D. The Yagnavalkia smriti is commented upon by Vigneswara which has later become the 'Mitakshara School of Hindu Law'. The same Smriti was also commented by Jimutuvahana which later became the 'Dayabhaga School of Hindu law'.
SADACHARAS OR CUSTOMS :
Custom is a rule of action uniformly and continuously followed by the bulk of the people for a long time. Custom is recognised as an important source of all civil laws. According to 'Manu', the King must inquire into the particular laws of custom of traders.
Hindu Law is mainly a law governing the Hindus. It is based on immemorial custom, and secular law which was called Dharma.
ANCIENT SOURCES :
Ancient sources are Sruti, Smrits, Commentaries and digests, Sadachara or Custom and Doctrine of factum valet.
SRUTI:
The Srutis are regarded as of divine origin from Vedas. Sruti literally means "What was heard" by the sages in a revelation by God which include the four vedas (by sage Vyas) namely Rig, Yajur, Sama and Atharvana Vedas, the six vedangas and the Upanishads. The period of Vedas is estimated to be 4000-1000 B.C. The Vedas are revelations of the Almighty. These vedas contained practically no law; they dealt with different forms of marriage, adoption, partition and the exclusion of women from inheritance.
SMRITIS :
It means "What was remembered". These are what were recorded by the sages in their own words of what they had heard from God. The smritis are classified as Primary Smirities and Dharmastras which constitute important sources of law. Among the Smritis, the Naradha Smritis and the Manu Smriti are very important. All these Smritis deal with the civil and criminal law, the laws of marriage and the rules of procedural law.
Next to the Vedas, Smritis are the most important source of Hindu law. The early smritis were termed as dharma sutras which were mostly in prose form. The later smritis were termed as dharma shastras, which are more systematic expostions than dharma sutras. The oldest smriti is the manu smriti. The manu smriti deals with 18 titles relating to civil and criminal law, marriage, and procedural law. The Yagnavalkya smriti (containing1010 slokas) provides that king was subordinate of Law. The other smrities are the Narada smriti and Brihaspati smriti which deal with legal subjects. Narada smriti recognised the power of the kings to make laws.
COMMENTARIES AND DIGESTS :
Since the Smritis did not agree with each other, they gave rise to commentaries which are otherwise called 'Nibandhas'. They were writen during the period between 700 A.D. to 1700 A.D. The Yagnavalkia smriti is commented upon by Vigneswara which has later become the 'Mitakshara School of Hindu Law'. The same Smriti was also commented by Jimutuvahana which later became the 'Dayabhaga School of Hindu law'.
SADACHARAS OR CUSTOMS :
Custom is a rule of action uniformly and continuously followed by the bulk of the people for a long time. Custom is recognised as an important source of all civil laws. According to 'Manu', the King must inquire into the particular laws of custom of traders.
MODERN SOURCES OF HL
MODERN SOURCES :
1. JUDICIAL DECISIONS :
All important points of Hindu Law are now a days clarified by decisions of Law. (Supreme Court and High Courts) They are binding in nature and are published in Law reports and thus form an additional source of Hindu Law.
For e.g.Hanooman Persuad Vs. Mst.Babbooee, the Privy Council held "any alienation of co parcenary property by the Kartha of the Hindu Joint Family for legal necessity of the family or for the benefit of the estate is valid".
Collector of Madura Vs.Mootoo Ramalingam, the Privy Council held "a clear proof of usage will outweigh the written text of Law". The decisions of the High Courts and Supreme Court are considered as precedents and applicable in subsequent cases.
2.PRINCIPLES OF JUSTICE, EQUITY OF GOOD CONSCIENCE:
These are rules deduced from general principles of Hindu Law, altered to suit the conditions of modern society. When the law is silent, the Courts in India followed justice, equity and good conscience in deciding many new points of Hindu Law. Thus the principles of justice, equity and good conscience were existent even during ancient days.
3.LEGISLATION :
This is the latest and vital source of modern Hindu Law. These legislations have not only brought in profound changes in the ancient Hindu Law but also have made the Law certain and definite.
1. JUDICIAL DECISIONS :
All important points of Hindu Law are now a days clarified by decisions of Law. (Supreme Court and High Courts) They are binding in nature and are published in Law reports and thus form an additional source of Hindu Law.
For e.g.Hanooman Persuad Vs. Mst.Babbooee, the Privy Council held "any alienation of co parcenary property by the Kartha of the Hindu Joint Family for legal necessity of the family or for the benefit of the estate is valid".
Collector of Madura Vs.Mootoo Ramalingam, the Privy Council held "a clear proof of usage will outweigh the written text of Law". The decisions of the High Courts and Supreme Court are considered as precedents and applicable in subsequent cases.
2.PRINCIPLES OF JUSTICE, EQUITY OF GOOD CONSCIENCE:
These are rules deduced from general principles of Hindu Law, altered to suit the conditions of modern society. When the law is silent, the Courts in India followed justice, equity and good conscience in deciding many new points of Hindu Law. Thus the principles of justice, equity and good conscience were existent even during ancient days.
3.LEGISLATION :
This is the latest and vital source of modern Hindu Law. These legislations have not only brought in profound changes in the ancient Hindu Law but also have made the Law certain and definite.
INDIAN HINDU LAW
INDIAN HINDU LAW :
Historically the term 'Hindu' is of foreign origin. It was used to designate people who were living east of the Hindi river, now known as the Indus. Etymologically, the term 'Hindu' was applicable to all the inhabitants of India irrespective of caste and creed. In course of time, the term Hindu has been associated with religion.
Thus logically, the term 'Hindu' is used to signify persons who are Hindus by birth and by faith and this is the basis for the applicability of Hindu Law
Hindu, Muslim and Christian Laws of marriage and divorce. The nature of the institution of marriage and its development the capacity and nuptial rights and the effect of void and voidable marriage under the aforesaid systems of law. Hindu law of marriage and divorce with reference to the changes brought about my modern legislation.
PERSONS GOVERNED BY HINDU LAW :
The following persons are governed by Hindu Law:
1. A HINDU BY BIRTH :
If the parents are both Hindus, their children whether legitimate or illegitimate become Hindus automatically.
2. A HINDU BY FAITH OR CONVERSION OF HINDUISM:
Previously, it was a contention that "a Hindu is horn and nor made". But now even a person converted to Hinduism is treated as a Hindu.
3. ILLEGITIMATE CHILDREN :
Illegitimate children born to Hindu parents or both the parents.
4. ILLEGITIMATE CHILDREN :
Illegitimate children born to Christian father and Hindu mother, and brought up as a Hindu.
5. JAIN SIKH, BUDHIST LINGAYAT, BRAHMOS, ARYA SAMAJ:
Jain sikh, budhist, Lingayat, Brahmos, Arya Samajist and Santhals of Chota Nagpuri, If not varied by custom.
6. A person who is Hindu by birth, and who has renounced Hinduism and reverted back to Hinduism either by religious rites or recognition from community.
7. The sons of Hindu dancing grils of the Naik caste who are converted to Mohammedanism, but whose sons are brought up by the Hindu grand parents as Hindus.
8. To Hindu who have made a declaration that they were not Hindus for the purpose of Special Marriage Act 1872
PERSONS NOT GOVERNED BY HINDU LAW :
1. Illegitimate children born to Hindu father and Christian mother and brought up as Christians.
2. Illegitimate children born to a Hindu father and a Muslim mother.
3. Hindu converted to islam religion
4. Hindu coverted to christianity.
5. A Hindu marrying under Special Marriage Act, for the purpose ofinheritance, governed by Indian Succession Act and not Hindu Succession Act.
EFFECT OF COVERSION AS PER INDIAN HINDU LAW :
APPLICABILITY OF HINDU LAW :
1. Chritianity :
Earlier to Indian Succession Act 1925, a Hindu covert to Christianity could opt for Hindu faith.
After passing the Indian Succession Act, the Hindu covert to Christianity is governed by the Indian Succession Act.
2.Mohammadanism :
A Hindu covert to Mohammedanism has no option to retain Hindu personal law and he is governed by Muslim personal law.
3. Hinduism :
Any covert to Hinduism from other religion does not have any caste, but if he professes hindu faith, it is sufficieant for the application of Hindu Law.
EFFECT OF CONVERSION ON INHERITANCE RIGHTS:
Previously a convert from one religion to another could not inherit the property of his original religion. But the Caste Disabilities Removal Act 1850 abolished the said forfeiture of rights to inheritance by a convert.
EFFECT OF CONVERSION ON MARITAL RIGHTS :
Under the Hindu Marriage Act 1956 if any of the spouse converts himself to another religion the other party is entitled for a divorce.
EFFECT OF CONVERSION ON RIGHT TO MAINTENANCE:
The spouse who gets converted from Hinduism to another religion cannote claim maintenance. However if a Hindu himself renounces Hinduism the Hindu wife can claim separate residential maintenance from him.
EFFECT OF CONVERSION ON RIGHT OF GUARDIANSHIP:
When a guardian changes his religion, he cannot act as a guardian for the minor.
Historically the term 'Hindu' is of foreign origin. It was used to designate people who were living east of the Hindi river, now known as the Indus. Etymologically, the term 'Hindu' was applicable to all the inhabitants of India irrespective of caste and creed. In course of time, the term Hindu has been associated with religion.
Thus logically, the term 'Hindu' is used to signify persons who are Hindus by birth and by faith and this is the basis for the applicability of Hindu Law
Hindu, Muslim and Christian Laws of marriage and divorce. The nature of the institution of marriage and its development the capacity and nuptial rights and the effect of void and voidable marriage under the aforesaid systems of law. Hindu law of marriage and divorce with reference to the changes brought about my modern legislation.
PERSONS GOVERNED BY HINDU LAW :
The following persons are governed by Hindu Law:
1. A HINDU BY BIRTH :
If the parents are both Hindus, their children whether legitimate or illegitimate become Hindus automatically.
2. A HINDU BY FAITH OR CONVERSION OF HINDUISM:
Previously, it was a contention that "a Hindu is horn and nor made". But now even a person converted to Hinduism is treated as a Hindu.
3. ILLEGITIMATE CHILDREN :
Illegitimate children born to Hindu parents or both the parents.
4. ILLEGITIMATE CHILDREN :
Illegitimate children born to Christian father and Hindu mother, and brought up as a Hindu.
5. JAIN SIKH, BUDHIST LINGAYAT, BRAHMOS, ARYA SAMAJ:
Jain sikh, budhist, Lingayat, Brahmos, Arya Samajist and Santhals of Chota Nagpuri, If not varied by custom.
6. A person who is Hindu by birth, and who has renounced Hinduism and reverted back to Hinduism either by religious rites or recognition from community.
7. The sons of Hindu dancing grils of the Naik caste who are converted to Mohammedanism, but whose sons are brought up by the Hindu grand parents as Hindus.
8. To Hindu who have made a declaration that they were not Hindus for the purpose of Special Marriage Act 1872
PERSONS NOT GOVERNED BY HINDU LAW :
1. Illegitimate children born to Hindu father and Christian mother and brought up as Christians.
2. Illegitimate children born to a Hindu father and a Muslim mother.
3. Hindu converted to islam religion
4. Hindu coverted to christianity.
5. A Hindu marrying under Special Marriage Act, for the purpose ofinheritance, governed by Indian Succession Act and not Hindu Succession Act.
EFFECT OF COVERSION AS PER INDIAN HINDU LAW :
APPLICABILITY OF HINDU LAW :
1. Chritianity :
Earlier to Indian Succession Act 1925, a Hindu covert to Christianity could opt for Hindu faith.
After passing the Indian Succession Act, the Hindu covert to Christianity is governed by the Indian Succession Act.
2.Mohammadanism :
A Hindu covert to Mohammedanism has no option to retain Hindu personal law and he is governed by Muslim personal law.
3. Hinduism :
Any covert to Hinduism from other religion does not have any caste, but if he professes hindu faith, it is sufficieant for the application of Hindu Law.
EFFECT OF CONVERSION ON INHERITANCE RIGHTS:
Previously a convert from one religion to another could not inherit the property of his original religion. But the Caste Disabilities Removal Act 1850 abolished the said forfeiture of rights to inheritance by a convert.
EFFECT OF CONVERSION ON MARITAL RIGHTS :
Under the Hindu Marriage Act 1956 if any of the spouse converts himself to another religion the other party is entitled for a divorce.
EFFECT OF CONVERSION ON RIGHT TO MAINTENANCE:
The spouse who gets converted from Hinduism to another religion cannote claim maintenance. However if a Hindu himself renounces Hinduism the Hindu wife can claim separate residential maintenance from him.
EFFECT OF CONVERSION ON RIGHT OF GUARDIANSHIP:
When a guardian changes his religion, he cannot act as a guardian for the minor.
