Department Of Laws

Panjab University, Chandigarh

Family Law
Project – Sources and Schools of
Hindu law
Submitted To: Submitted By:
Ms. Riya Name - Manik Singla
Dept. Of laws Roll no. - 95/23
Panjab University Semester - 3rd
Chandigarh Section – H
Acknowledgement
I would like to thank our teacher, Ms. Riya, for teaching and guiding
me throughout the course of this assignment. She was there to help
me with every possible doubt and step on the way of preparing this
assignment successfully. She helped me by providing all the
information and methodology of preparing this assignment without
which I would not have been able to do it.
Contents
Introduction ......................................................... 4
Origin And Applicability ....................................... 6
Sources Of Hindu Law. ........................................ 7
1) Ancient Sources: ............................................. 7
2) Modern Sources: .......................................... 13
Schools Of Hindu Law ....................................... 16
1. Mitakshara ................................................... 16
2. Dayabhaga school ........................................ 19
Conclusion......................................................... 21
List Of Cases

1) Anjubai v. Hemchandra Rao

2) Deivanai Achi v. Chidambaram (1954)
3) Laxmi v. Bhagwant Buva AIR 2013 SC 1204
4) Subbane v. Nawab
5) Kanchava v. girimalappa (1924) 51 IA 368
6) Gurunath v Kamlabai 1951
7) Mohd. Ahmed Khan v. Shah Bano Begum
Introduction
Hinduism is one of the oldest religions of the world; the Indian
civilization is one of the oldest civilizations. Hindu law is said to be of
divine origin. One theory suggests that it is derived from Vedas while
western jurists believe that Hindu law is based on ancient custom and
usages. Hinduism in the ancient period did not differentiate between
religion, Law and morality. They were all the same back then which was
called ‘Dharma’ at that time. Dharma, according to Hindu law, refers to
a variety of responsibilities. Similarly to societal, legal, and spiritual
responsibilities. Dharma can indeed be defined as the concept of justice
(NYAYA) in this context. Therefore, Hindu law could be seen as a branch
of this Dharma, with Dharma as its foundation.
Hindu law is a comprehensive system governing various aspects of life
for Hindus, encompassing personal, familial, and social norms. Rooted
in ancient texts and practices, it has evolved significantly over time,
influenced by changing societal values, judicial interpretations, and
legislative reforms. Understanding the sources of Hindu law is essential
for grasping its complexities and contemporary relevance.

"Hindu law has the oldest pedigree of any known system of

jurisprudence, and even now it shows no sign of decrepitude." - Henry
Mayne
Origin And Applicability
Hindu law is thought to be divine law. God revealed it to humans
through the Vedas. The notion of life described in the Vedas has been
extended and polished by different phases and ascetics. Ancient Hindu
legislators were not monarchs, but sages, who could be considered
semi-divine individuals due to their deep intellectual speculation and
foresight, as well as strong sympathy for man-to-man social dealings.
It was these thinkers who established Hindu law, which can be found in
the dharma sutras, dharmashastras, and the Artha sastra of Kautilya as
explained and elaborated by various nibandhas and later era
commentary. The concept of "the rule of law" was acknowledged from
the outset in ancient India. Hindu law dates back roughly 6000 years.
The origins of these legal and religious speculations must be traced back
to the Vedic Deity Varuna's idea of Rita, or Natural Order. From the
previous brief historical outline. it is clear that Hindu law was initially
territorial in nature, applying to all residents of Aryavarta or India.
However, after the arrival of the Muslims, it could no longer be
considered to be downright territorial; it was now limited to the Hindu
community alone.
The name "Hindu" initially appeared in Old Persian text. It was taken
from the Sanskrit word Sindhu, which was the old local term for the
Indus River in the Indian subcontinent's north-western region. A Hindu is
someone who practises Hinduism. Because there is no specific definition
of Hinduism, determining somebody is a Hindu is extremely difficult. As
a result, a negative definition is considered, with the term "who is not a
Hindu".
Sources Of Hindu Law.
• There is the two-fold classification of the sources of the Hindu law
1. Ancient sources 2. Modern sources
➢ Shrutis ➢ Judicial Decisions
➢ Smritis ➢ Legislative Enactments
➢ Commentaries and Digests ➢ Rules of Equity, Justice
➢ Customs and Good Conscience

1) Ancient Sources:
Sruti: Sruti, literally, means that which was heard, this word has taken
from the word 'Sru' i.e. to hear. Manu has defined Sruti as follows- "By
Sruti or what was heard from above (from God) is meant the Veda".
Sruti or Vedas are believed to contain the very words of Deity (God). It is
the paramount and primary sources of Hindu Law. They are supposed to
be the divine utterances to be found in the four Vedas, the six vedangas
and the eighteen Upanishads. They are mostly religious in character and
the means of attaining true knowledge and Moksha or Salvation. No
written material was available at that time so the primary way to
communicate the knowledge was orally by sages to their families and
disciples which supplemented it and carried it forward.
Four Vedas are –
 Rigveda: A collection of hymns and praises to various deities, it
contains insights into rituals and moral duties.
 Samaveda: Focused on melodies and chants, it provides guidelines
for performing rituals.(sacrifice mantras)
 Yajurveda A liturgical text that contains prose mantras and verses to
be chanted by seers.
 Atharvaveda: This Veda includes spells, charms, and practical
knowledge, addressing everyday life issues.
The Vedas lay the groundwork for understanding dharma (duty) and
righteousness, emphasizing ethical behavior and societal
responsibilities. Vedas described Hindu Society made up of
patriarchal families. Each family was considered a unit of which the
head was the oldest living ascendant called ‘Grihapati’.
Shrutis also consist of 6 Vedangas (The Vedanga are auxiliary
disciplines of Hinduism that developed in ancient times and relate to
the study of the Vedas) and 18 Upanishads (deals chiefly with
religious rites and means of attaining true knowledge or Moksha).

Smriti comes from the Sanskrit word "smri," which means "to
remember." Smriti, in basic terms, pertains to God's words that the
sages forgot to tell in one's original form, but which the sages
recalled and wrote in their own words. Thus, Smriti translates to
"that which is remembered."
Though the Smritis are not in the exact language of the God, they
embrace what the sages learned from discoveries, and they are
regarded to have arisen from the God in the context that they
embrace what the sages remembered from revelations. Thus, Smritis
suggests human authorship, putting human action into the
substantive and procedural proclamation of law. The Dharmasutras
[old Smriti] and the Dharmashastras [new Smriti] are the main two
types of Smriti
 Dharmasutras (Prose):
These were written between 800 and 200 BC. They comprised local
rituals and customs as well as Vedic preaching on various tasks
that a person must carry out in various relationships. Sutras have
a short and straightforward meaning that is easy to memorise.
The Srauta Sutra (ritual related), the Grihya Sutra (domestic-
related), and the Dharma Sutra (discipline related) are the three
types of sutras (law-related). The Gautama (legal and religious
topics), the Baudhayan (marriage and inheritance concerns), the
Apastamba, and the Vashistha were the four important thinkers of
the Dharma Sutra (remarriage of virgin widows).
 Dharma Shastra (Poetry):
In Dharmashastra, our moral code of conduct is stated. It was
based on Dharmasutras and was more precise and systematic
when compared to other texts. The three most important issues
that the Dharma Shastra deal was Aachara; Vyavahar; and
Prayaschitta.
1.) Manu Smriti - It is considered the most authoritative source of
Hindu law. Manu, its creator, is regarded as the first human being.
All of the granthas and sutras are collected in Manusmriti. It is
generally accepted and respected that the latter will lose if a fight
emerges between it and other smritis. Manu Smriti gave Brahmins
an eminent position is society and there were not any right for
women or shudras.
2.) Yajnavalikya Smriti- written between the period of Buddha and
Vikramaditya. It was more systematically arranged and was more
concise than Manu Smriti and it also was more liberal than manu
smriti, it recognized some rights for women in regard to inherit and
hold property and also gave a better status to Shudras than
manusmriti. It primarily deals with the civil law.
3.) Naradas Smriti - This smriti was much progressive than
Yajnavalkya and manu because this Smriti recognized widow’s
remarriage, a woman holding property etc also postulated that king
made law is higher than what is provided in Smriti’s. This Smriti also
laid down rules regarding pleadings, evidence of witnesses which was
not mentioned at all in the previous smritis.

3. Commentaries and Digests • 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 as it contains law.
• But the problem is the Smritis have conflicting tests, for example,
Manu smriti doesn’t give rights to woman and Shudras at all but
Yajnavalkya smriti and Narada Smriti do provide rights of varying
degrees to both these communities. So 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
 • Dayabhaga and Mitakshara are considered to be the two most
important commentaries and digests.
In the case Anjubai v. Hemchandra Rao , it was opined "that
commentaries do not enact the law, but they explain and interpret the
law and are evidence of the congeries of customs which form the law".

4. Custom – Customs is the tradition that has been practiced in

society since ancient times. It is the type of practice which is under
the continuous observation of the people has been followed by the
people.
• From the earliest period custom (‘achara’) is regarded as the highest
‘dharma’. 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. Custom is a principle source and
its position is next to the Shrutis and Smritis but usage of custom
prevails over the Smritis. It is superior to written law. There are certain
characteristics which need to be fulfilled for declaring custom to be a
valid one.
• Custom to be law must be ancient, reasonable, certain, uniform,
obligatory and observed continuously without interruption and should
not be immoral or opposed to public policy or written rule of law or a
statute unless and until it is expressly saved by the statute and should be
construed strictly.
• Essentials of a custom
✓ A customs must be continuous in practice
✓ A custom should not be vague or ambiguous
✓ A custom must have time antiquity
 ✓ There must be a complete observation of the custom
✓ It should be certain and clear
✓ A custom must not oppose the public policy which will affect the
interest of the general public.
• 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.
• Laxmi v. Bhagwant Buva AIR 2013 SC 1204- In the instant case,
the Supreme Court stated that a custom becomes legally enforceable
when the majority of people make the continuous use of such practice.
• Onus -Generally when a custom attains the judicial recognition no
further proof is required, however in certain cases where the customary
practices do not attain the judicial recognition, the burden of proving
lies on the person who alleges its existence.
These customs are of three types:
Local Customs:
These are the customs that exist in a specific geographic location. In the
case of Subbane v. Nawab, the Privy Council stated that a custom has
legal force because it has been observed for a long time in a particular
location.

Family Customs:
These are traditions that have been passed down through generations
in a family. This applied to all families, regardless of their location. They
are less complicated to abandon than other practices. The Privy Council
noted in Soorendranath v. Heeramonie and Bikal v Manjura that family
practises have long been recognised as Hindu law.
Caste and Community Customs:
These are the traditions that a specific caste or community adheres to. It
binds the individuals of such a caste or group. This is, without a doubt,
among the most important legal sources. For instance, the majority of
the law of Punjab is of this type. This is likewise the case with the
Custom of marrying a brother's widow in several societies.

2) Modern Sources:
Many changes were made to Hindu law as a result of the arrival of the
British. The modern sources of Hindu law arose as a result of this. The
three Modern sources are equity, fairness, good conscience; precedents
and judicial decisions; and legislation.

Equity, Fairness, And Good Conscience:

Sometimes, a dispute may arise before a Court cannot be resolved by
applying an existing rule from any accessible sources. Although such a
situation is uncommon, it is feasible since not every circumstance that
emerges has a matching law governing it. In the lack of law, the courts
have no choice but to resolve the dispute, yet they are obligated to do
so. The Courts use core values, norms, and criteria of fairness and
appropriateness to decide such situations.
• In Gurunath v Kamlabai 1951 the Supreme Court held that in the
absence of any existing law the rule of justice equity and good
conscience was applied.
• Kanchava v. girimalappa (1924) 51 IA 368 In the instant case, the
Privy Council barred the murderer from inheriting the property of the
victim.

Legislations: Legislation is an important source of Hindu law. They

have largely reformed, altered and supplemented the old Hindu law.
They have also tried to bring uniformity throughout the country in
application and practice of Hindu law.
But the earlier legislations were made carefully so that they do not go
against the established rules of Hindu Law. Most legislation in the
starting period were reformative or were made to fill in on things which
were not covered under the prevailing law.
✓ The Caste Disabilities Removal Act, 1850- To protect rights over
property of a person who has converted his religion or has been expelled
from the caste or community
✓ The Hindu Widows Remarriage Act, 1856- To give Hindu Widows a
right to remarry.
✓ The Hindu Wills Act, 1870- Hindus did not have any law which
allowed them to make a will, this filled the gap.
✓ The Special Marriage Act, 1872- To allow inter-religious, inter-caste or
intra caste marriages.

Judicial Precedents, also known as case laws, are another

important source of Hindu law in India. Judicial precedents are the
decisions of courts in cases involving Hindu law, which are considered as
authoritative interpretations of the law. The decisions of higher courts,
such as the Supreme Court of India, have a binding effect on lower
courts, and they are considered as precedents that are to be followed in
similar cases. Judicial precedents play a significant role in the
development and evolution of Hindu law, as they provide interpretations
and clarifications on legal principles and practices.
Over the years, the Indian judiciary has delivered numerous landmark
judgments on various aspects of Hindu law, including marriage, divorce,
property rights, inheritance, adoption, and religious practices.
For example, the Supreme Court of India clarified the rights of a Hindu
woman as a coparcener in a joint Hindu family property.
Another example can be, in the case of Mohd. Ahmed Khan v. Shah
Bano Begum the court established the rights of Muslim women to
maintain under Hindu law.
Schools Of Hindu Law
Schools of Hindu Law emerged with the emergence of the era of
commentaries and Digests. The commentator put his own glass on the
ancient texts, his authority having been received in one and rejected in
another part of India. Originally Hindu Law was applied to the whole of
India but subsequently it was divided into two main schools and some
sub-schools –
1. Mitakshara 2. Dayabhaga

1. Mitakshara
The Mitakshara School of Hindu Law is one of the most important
schools. It is a commentary on the Yajnvalkya Smrti. The commentary
was written by 11th-century legal scholar Vijñaneśvara. Except for
states like West Bengal and Assam, this school is applicable all over
India. However, it is practiced differently in different parts of the country
because of the different customary rules followed by them. This has led
to the formation of various sub-schools and a wide jurisdiction.
The subject matter of his commentary is classified into three heads:
1. Dharma, dealing with daily rituals, rites and moral duties;
2. Vyavahara comprising legal disputes, inheritance, etc. Consolation
by ministers as well as the administration of justice to kings;
3. Prāyaścitta embracing operations for purification. It includes
various karmic actions and rituals for atonement. It has a wide
appeal which was made possible by thorough and systematic work
mitaksara
The Mitakshara School has three distinguished characteristics:
 1. Blood relationships are very important in matters of inheritance.
2. The schools has placed restrictions on coparceners’ share in the
joint family property
3. Distinction between male and female heirs.
In the Mitakshara School the
property is owned by the coparcenary (joint heirship) and sons acquire a
right by birth. Due to the birth or death of other coparceners, a
coparcener’s share in joint family property constantly fluctuates and is
not absolute. Therefore, they do not have the right to transfer their
shares. The Mitakshara recognises agnate succession as far as the
fourteenth in descent fourteenth ancestor i.e. twelfth cousins.

Mitakshara is further divided into four sub-schools namely

 Benaras school
 Mithila school
 Maharashtra school
 Dravida or Madras school

Benaras law school

The Benares School of Hindu Law is also known as the Varanasi or Kashi
School. It is one of the primary sub-schools of Mitakshara School. It is
predominantly followed in northern and central India, including Uttar
Pradesh, Bihar, Madhya Pradesh, and parts of Orissa. This school
emphasises principles like coparcenary and joint family property, where
male descendants inherit ancestral property by birth. Vimitrodaya and
Nirnaya Sindhu are main commentators.
Mithila law school

Mithila law school holds jurisdiction over the regions of Tirhoot and
North Bihar. The legal principles of the school are dominant in these
northern areas. It developed from the teachings and writings of ancient
sages and scholars in the region, becoming formalised during the
medieval period. The Mithila School is known for its strict adherence to
ancient texts and rituals, often emphasising the importance of
traditional ceremonies and customs in legal matters. Vivadaratnakar,
Vivadachintamani are main commentators.

Maharashtra or Bombay Law School

This school has its jurisdiction over Gujarat, and other parts where the
Marathi language is proficiently spoken. The Bombay School of Hindu
Law recognises female bandhus (distant relatives) as heirs. The Bombay
School of Hindu Law, as courts interpret it, acknowledges the
inheritance rights of female heirs, called bandhus, to own the property
outright. Vimitrodaya and Nirnaya Sindhu are main commentators.

Madras law school

Madras School covers the entire southern part of India. Its authorities
come under Mitakshara Law School. The Madras school followed the
Vedic doctrine of the general exclusion of women. Here, they interpreted
the Sruti text to mean that except for the daughter, the mother and
other female ancestors, whose right to inherit is expressly provided by
special texts, females as a class are incompetent to inherit property.
Dayabhaga school
This school was mostly prevalent in Assam and West Bengal. It is one of
the most important schools of Hindu law. It is derived from digests and
leading smritis. The school primarily focused on dealing with
inheritance, partition, and joint families. P.V. Kane was a scholar,
historian and former Rajya Sabha member. According to him, the
Dayabhaga School was incorporated between 1090-1130 A.D. The
principles of the school were formulated to eradicate all the other
absurd and artificial principles of inheritance. It removed all the
shortcomings and limitations of the previous principles. It included many
cognates in the list of heirs, which were previously restricted by the
Mitakshara school of Hindu law. Dayabhaga School relies on many
commentaries, such as Dayatatya, Dayakram-sangrah, Virmitrodaya
and Dattaka Chandrika.

Some of the key features of Dayabhaga school are-

1. Inheritance, according to Dayabhaga, arises from the spiritual
offerings to the deceased ancestors.
2. In this school, the right over Hindu joint family property is passed
down to the heir on the death of the father. Not like the
Mitakshara School, which is passed down by birth.
3. Each share of each of the heirs is definite. The heirs can sell their
particular fraction of the share.
4. In cases where there are no male descendants, a widow has the
right to enforce partition and inherit her deceased husband’s
share.
The Dayabhaga school recognises individual ownership. Property is
solely owned by the person during their lifetime. Here, property is
inherited by succession upon the death of an individual, rather than by
birth. The property devolves upon the heirs, who take definite and
determined shares in the property. After the death of the property
owner, each heir has the right to demand partition of property under
the Dayabhaga school. The property does not automatically become
joint family property; rather, it is held in specific shares by the heirs. The
concept of joint family property is not recognised, the property remains
separate and distinct, even if the family members live together.

. Comparison of Schools
A comparative analysis of the Mitakshara and Dayabhaga schools
illustrates significant differences:
 Property Rights:
o Mitakshara: Joint ownership leads to collective management
and control over family property.
o Dayabhaga: Each individual has rights, promoting a more
individualized approach to property ownership.
 Succession:
o Mitakshara: Generally follows male lineage and rules of
coparcenary.
o Dayabhaga: Allows for bequeathing property according to
personal wishes, thus recognizing individual autonomy.
Conclusion
The study of Hindu law reveals a complex interplay of tradition and
modernity. The sources and schools of Hindu law illustrate the diversity
and richness of legal principles that have evolved over centuries. While
written texts provide foundational guidance, unwritten customs and
judicial interpretations reflect the dynamic nature of Hindu law in
practice.
In contemporary society, the challenges of gender equality, social
justice, and the impact of constitutional rights continue to shape the
evolution of Hindu law. As Hindu law adapts to changing social values, it
remains a vital component of India's legal landscape, reflecting the
intricate relationship between law, culture, and society.