Dharma and the sources of Hindu law - Family Law I - Hindu Law

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1. The concept of dharma
2. Ancient sources
3. Requisites of a valid custom
4. Modern sources
5. The dharmashastra in modern legislation
6. Problem
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Two lists and one test. Every answer on this topic is built on two lists, the ancient sources (shruti, smriti, commentaries and digests, custom) and the modern sources (justice, equity and good conscience, precedent, legislation), and on one test: what a custom must show before a court will enforce it. Begin with dharma, because the examiner sets “Concept of Dharma” on its own.

1. The concept of dharma

The word comes from the root dhri, to hold or sustain. Dharma is what holds society together: the body of duties a person owes according to his stage of life and station. It is wider than law. It covers religious observance (achara), civil and criminal law (vyavahara) and penance (prayaschitta), which is how the Yajnavalkya Smriti divides its subject. Law in the modern sense, enforced by the king, was only one part of it.

Dharma as duty. The texts speak of duties, not rights. A son is bound to pay his father's debts, a king is bound to protect his subjects, a householder is bound to maintain his dependants. Many modern rules (pious obligation, the duty to maintain) are the old duties restated as rights of the other party.
Dharma and the king. The king did not make dharma. He enforced it. The Brahmanical view was that law was revealed or remembered, not legislated, and that the king was himself subject to it.
Dharma and change. The texts accepted that dharma varies with the age (yuga dharma), the region (desa dharma), the family (kula dharma) and the caste. This is the doctrinal root of the authority of custom.

2. Ancient sources

(a) Shruti. “That which was heard”: the four Vedas (Rig, Yajur, Sama, Atharva) with their Brahmanas, Aranyakas and Upanishads. They are the primary source in theory but contain very little positive law. Rules on marriage ceremonies and the place of the son are traced to them.

(b) Smriti. “That which was remembered”. The earlier prose Dharmasutras (Gautama, Baudhayana, Apastamba, Vasishtha) were followed by the metrical Dharmashastras, of which the most important are the Manu Smriti, the Yajnavalkya Smriti (more systematic, and the base of the Mitakshara), the Narada Smriti (largely on procedure and civil law) and the Parashara Smriti. Where shruti and smriti conflicted, shruti prevailed.

(c) Commentaries and digests. A commentary (bhashya, tika) explains one smriti; a digest (nibandha) collects and reconciles many. Through them the law was adapted to local practice, and the schools of Hindu law grew out of them.

Mitakshara of Vijnaneshwara (eleventh century), a commentary on Yajnavalkya: the base of the Mitakshara school.
Dayabhaga of Jimutavahana (twelfth century), a digest: the base of the Bengal school.
Others: Medhatithi and Kulluka Bhatta on Manu; the Smriti Chandrika (Madras), the Vyavahara Mayukha of Nilakantha (Bombay), the Viramitrodaya (Benares) and the Vivada Chintamani (Mithila).

(d) Custom. Usage observed for a long time by a family, caste or locality. The smritis themselves told the king to respect the customs of regions, castes and families, and the Privy Council gave custom priority over text: in Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) 12 MIA 397 it said that under the Hindu system clear proof of usage will outweigh the written text of the law. Today custom survives in the places the codified Acts leave open to it, for example marriage within prohibited degrees or between sapindas where custom permits (section 5(iv) and (v) of the Hindu Marriage Act, 1955), customary ceremonies (section 7) and customary divorce (section 29(2)).

3. Requisites of a valid custom

Section 3(a) of the Hindu Marriage Act, 1955 defines “custom” and “usage” as a rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family, provided the rule is certain and not unreasonable or opposed to public policy, and, in the case of a family custom, that it has not been discontinued by the family. The same words appear in section 3(a) of the Hindu Succession Act, 1956. From the definition and the case law the requisites are:

Antiquity. Long usage. The English rule of time immemorial (1189) is not applied; it is enough that the usage is old enough to have become the accepted rule.
Continuity. Observed without interruption. A family custom once abandoned cannot be revived.
Certainty. The content of the rule must be definite.
Reasonableness. Not unreasonable, judged by the court.
Not opposed to public policy or morality. A custom permitting a wife to leave her husband and marry again at will without any formality has been refused recognition on this ground.
Not opposed to statute. Legislation overrides custom except where the Act saves it. Section 4 of the Hindu Marriage Act gives the Act overriding effect over any custom in respect of matters for which it provides.
Strict proof. The party relying on a custom must plead and prove it by clear and unambiguous evidence of instances. It is a question of fact.

4. Modern sources

(a) Justice, equity and good conscience. Where no text or custom applied, the courts under the Company and the Crown were directed by regulations to decide according to justice, equity and good conscience. In practice this often meant importing rules of English law in cases the texts did not answer.

(b) Precedent. Once the courts were established, the decisions of the Privy Council and the High Courts came to be treated as binding statements of Hindu law, in place of the pandits' opinions on which judges had earlier relied (the court pandits were dispensed with in 1864). Today the Supreme Court's decisions bind all courts under Article 141 of the Constitution.

(c) Legislation. The most important modern source. In order:

Caste Disabilities Removal Act, 1850; Hindu Widows' Remarriage Act, 1856.
Hindu Inheritance (Removal of Disabilities) Act, 1928; Hindu Gains of Learning Act, 1930; Hindu Women's Rights to Property Act, 1937; Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946.
The Hindu Code: the Hindu Marriage Act, 1955; the Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956; the Hindu Adoptions and Maintenance Act, 1956.
Later amendments: the Marriage Laws (Amendment) Act, 1976 and the Hindu Succession (Amendment) Act, 2005, which made daughters coparceners.

5. The dharmashastra in modern legislation

The Hindu Code replaced most of the texts, but much of their content was kept:

The sapinda relationship and prohibited degrees (sections 3(f), 3(g), 5(iv), 5(v) HMA) come from the smriti rules on marriage.
Marriage is solemnised by customary rites and ceremonies, and where they include the saptapadi the marriage is complete on the seventh step (section 7 HMA).
The Mitakshara coparcenary, the karta and the joint family were retained by section 6 of the Hindu Succession Act, and in 2005 extended to daughters rather than abolished.
The duty to maintain wife, children and aged parents in the Hindu Adoptions and Maintenance Act restates the old duty of the householder.
The law of religious endowments, the idol as a juristic person and the office of shebait and mahant remain uncodified and textual in origin.

Trap. Do not write that the smritis are still a source of law in the ordinary sense. After 1955–56 a text of Hindu law applies only where the Acts do not cover the point; section 4 of the Hindu Marriage Act and section 4 of the Hindu Succession Act give the Acts overriding effect over any text, rule, custom or usage on matters they deal with.

6. Problem

In a community in coastal Karnataka, marriage between a man and his maternal uncle's daughter has been practised for generations. A party to such a marriage later argues that it is void as within the prohibited degrees. Decide.

Issue. Whether a marriage within the prohibited degrees is saved by custom.

Law. Section 5(iv) HMA forbids marriage within the degrees of prohibited relationship and section 11 makes such a marriage void, unless the custom or usage governing each of the parties permits it. Section 3(a) requires the custom to be ancient, continuous, uniform, certain, reasonable and not opposed to public policy.

Application. Cross-cousin marriage with the maternal uncle's daughter is a well-known custom in parts of South India. If the party relying on it proves by instances that it has been continuously and uniformly observed in the community, and it governs both parties, the exception applies. It is not opposed to public policy, as the Act itself contemplates such customs.

Conclusion. The marriage is valid if the custom is proved; otherwise it is void under section 11.

How this is examined

A 10-mark essay: “Explain the concept of Dharma” or “Discuss the sources of Hindu law”. Write dharma first, then the ancient sources in the order shruti, smriti, commentaries and digests, custom, then the modern sources, ending with the place of the dharmashastra in the 1955–56 Acts. “Custom as a source of Hindu law” and “Essentials of a valid custom” are set as 6-mark notes; quote section 3(a) and the Collector of Madura line, and list the requisites.