Growth of Hindu Law from Ancient to Modern Law

The article 'Growth of Hindu Law from Ancient to Modern Law' will be covering the growth of Hindu Law from ancient, to medieval and modern times. It will briefly touch upon the concepts of marriage, the essentials for a valid marriage, divorce, and succession.

Introduction

The concept of Hindu law is deeply rooted in Hindu Philosophy and Hindi Religion. The ancient Hindu social structure and its continuance in modern times is the outcome of Hindu Philosophy and religion. The Hindu Philosophy says that the soul is immortal and a chain of birth and rebirth continues until it attains salvation, known as moksha. The same is reflected in the Vedas, Brahmanas, Samhitas, Sutras, Upanishads, Puranas, Gathas, etc. The Vedas propounded that the soul is immortal and only the body is mortal. One can emancipate one's soul from the pangs of birth and rebirth and may attain the region of the deity, through worship and Yajna (sacrifice).

Hindus consider their law as of divine origin and as a revealed law. It is also called so because the great rishis, had attained great spiritual height through direct communion with God, that's when God revealed to them the divine law. Which was later codified in the form of four Vedas. The main three characteristics of Hindu Law are sacrosanct, inviolable, and immutable.

Sacrosanct meaning that the law is to be looked at with reverence, meaning that its validity cannot be questioned. Inviolable means a law that cannot be violated, and cannot be changed, i.e., permanent law. Immutable means a law that will remain unchanged for all times to come. i.e., eternal law.

The Hindu legal system was based on the smriti literature, the Dharmashastra, and other digests. These also talked about the Rules of law, morality, and religion, there was a blending, interlinking, and interlocking of all these legal and ethical principles. The ancient sources of Hindu Law were the Shruti (Vedas), and Smriti (which are divided into two Dharmasutras and Dharmashastras), the Dharmasutras laid down the duties of men in their relations. The Dharmashastras deal with the subject -matter in a very systematic manner and are divided into three parts Achara, Vyavahara, and Prayaschitta. The other two sources are Digests and Commentaries, and Customs.

The Digests and commentaries were necessary because sometimes the Smritis had conflicting texts, so further systemization and assimilation were required. Whereas there were certain requirements of a valid custom, such as the Customs should be ancient, continuous, certain, reasonable, moral, and should not be opposed to public policy and law. Also, there were three kinds of customs i.e., the local custom, family custom, and community custom. However, later on, as the Hindu Law developed there were other modern sources as well such as equity, justice, a good conscience, precedent, and legislation.

Since the medieval period, starting from the 8th century, two major schools of personal laws were followed. First, the eleventh-century digest Mitakshara by Vijaneshvara, an authority on issues of family law, was widely followed both in the south and north India. It had further sub-schools in four areas, Dravida (south India), Mithila, Bombay, and Banaras. Second, in the region of Bengal, the personal law of Dayabhaga was used. Dayabhaga was the personal law, a part of the thirteenth or fourteenth-century digest Dharmashastra written by Jimuavahana.

Changing Concept of Hindu Marriage

The Legal Maxim "conjunctic martitet peminae est de nature" means that it is the law of nature to keep the Husband and wife together. And the legal maxim "viret unor consentur in lege una pensona" meaning that the husband and wife are considered one in law.

No other religion endeavoured to idealize the institution of marriage as the Hindus did. Marriage was considered a sacrament, i.e., a holy union. Even in the patriarchal society of Rig Vedic Hindus, as continues to be for the entire Hindu period, this is derived from the Manu Smriti. The Taittiriya Smriti reflects the fact that the wife is the ardhangini of the Husband, i.e., half of the man. Hence, marriage was considered an indissoluble union. At that time, the woman cannot ask for divorce even if her husband was a lunatic, impotent, a leper, a deserter, or suffered from an incurable venereal disease, or a eunuch. Also, a Hindu was allowed to marry only a Hindu.

According to the Mahabharata, by cherishing the woman, the man worships the goddess of prosperity. Also, according to the Manusmriti, the woman who remains chaste after the death of her husband she reaches heaven after her death, and if became unchaste after the death of her husband, she can claim no share in the deceased husband's property. Contradictorily, Polygamy was permitted in Hindu society, whereas Polyandry was prohibited.

There were eight forms of marriage that were described, four of which were regular forms, also known as dharma, the Brahma, Daiva, Arsha, and Prajapatya, and irregular forms, also known as adharmya, the Gandharva, Asura, Rakshasa, and Paishacha.

However, in the modern concept of society, the nature of marriage was considered a contract. However, Hindu law never accepted marriage as a contract. This was the outcome of the industrial revolution, and of ideals of liberty and equality. During this period, the Britishers invaded and captured India. This also marks the abolishment of the infamous Sati Pratha, where the women were forced to burn themselves along with the dead body of their husbands. This was because the woman was considered to be of no use without her husband. Originally, the Sati Pratha used to be a voluntary act, but later it was forced upon the widow. The Sati Pratha was abolished in the year 1829 by Lord Bentinck, the then governor-general of India by the Bengal Sati Regulation (Regulation XVII) 1829. Currently the Prevention of Sati Act, 1987 continues the abolishment.

The remarriage of a Hindu female was legalized with the Hindu Widow's Remarriage Act, of 1856. Later on in 1860, the Indian Penal Code Criminalized Polygamy. The enactment of the Hindu Marriage Act, of 1955, reformed the Hindu Law on Marriage and gave it a well-reasoned, ethical, and legal perspective, which is far better than the ancient framework of marriage as it is based on justice, equity, and good conscience. It prescribed the conditions of a valid marriage, registration of marriages, prescribes for punishment for bigamy, restitution of conjugal rights, and judicial separation, and talks about the legitimacy of children of void and voidable marriages. It was legally introduced the concept of divorce by mutual consent. The essential conditions for a valid marriage as described below:

Essential Elements of Marriage

The essential elements of a valid marriage, by the virtue of the Hindu Marriage Act, 1955, are given under Section 5:

1. Both parties i.e., the alleged husband and wife should not have another spouse who is alive at the time of the marriage (Section 5 (i)).
2. Both parties are capable of giving valid consent, i.e., they are not of unsound mind (Section 5 (ii)).
3. Both parties are fit for marriage i.e., for the procreation of children, and do not suffer from mental disorders.
4. Both parties do not suffer from recurrent attacks of insanity.
5. The groom has completed twenty-one years of age, and the bride has completed 18 years of age.
6. Both parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them allows so.
7. Both parties are not sapindas of each other.

In the case of Pinninti Venkataramana and Others v. State[1], it was held that if both parties are below the specified age in section 5(iii), then that cannot be a ground to say that the marriage is void or voidable. The only consequence that will arise is under the Prohibition of Child Marriage Act, of 2006.

Divorce

There was no such thing as divorce in the ancient Hindu Law, as it was considered an eternal bond, which was a bond for 7 lifetimes. Later on, slowly and gradually, when the folks believed that this is not possible for their well-being in whatsoever sense, the concept of divorce came along. the Native Converts Marriage Dissolution, 1866 Act facilitated divorce for Hindus accepting Christian Fatih. Then the Special Marriage Act was passed in 1872, but it didn't apply to Hindus. Then in 1869, the Indian Divorce Act was also passed but this was also inapplicable to Hindus.

After the Hindu Marriage Act, of 1955 came, Divorce was legalized and the grounds of divorce were specified under section 13 of the Act. They are adultery, cruelty, desertion of 2 years, one party ceases to be a Hindu, or becomes incurably of unsound mind, or venereal disease, or has renounced the world, or has been missing for 7 years, or no there is no cohabitation for a one year after an order of judicial separation, there has been no restitution of conjugal rights after the decree of the same, bigamy, husband guilty of rape, sodomy, bestiality after the marriage, the wife repudiated the marriage after 15-18 years of age. Provision 13B lays down divorce by mutual consent. Another ground being looked into by the court is the irretrievable breakdown of a marriage. But the court said that there cannot be any straightjacket formula for this ground and every case's facts and circumstances need to be looked at.[2]

In the case of Raj Talreja v. Kavita Talreja[3], it was held that the conduct of the wife of making reckless, false, and defamatory allegations amounts to mental cruelty. In the case of Yudhishter Singh v. Sarita[4], it was held that the husband saying that he doesn't like his wife's company and she should stay with the other members of the house, amounts to cruelty.

Succession

The determining factor in the Hindu succession laws was propinquity in the Mitakshara system and religious efficacy in the Dayabhaga system. The Manu Smriti lays down the principle that the son takes the property to the nearest sapinda, and the inheritance next belongs.[5]  In the Mitakshara system, the Hindu Joint Family was considered of utmost importance, which was headed by the senior most male member of the family. The concept of coparcenary was followed by the Hindu Joint Family. Coparcenary includes the last alive property holder and his male lineal descendants till four generations, including him. Because till 1985, female members were not considered part of the coparcenary. Women were also not given absolute ownership in the property and only limited owner till the lifetime of the woman to enjoy the property was given.

After that, the Hindu Succession Act, of 1956 brought equal rights for women in the property after the 2005 amendment. The classification of succession was done into Intestate Succession and Testamentary succession. The latter means succession by the means of a will governed by section 30 of the act, and the former means by the law laid down in sections 5 to 29 of the Hindu Succession Act, 1956. The intestate succession prescribes class one heirs, class two heirs, agnates, and cognates and escheat as the suitable people to whom the joint family property shall devolve, as given in section 8 of the Act.

Conclusion

It can be concluded that the Hindu Law has done a lot of development so far, however, it will need to continue adapting as per the present generation's needs. I think that the courts try hard to prevent a marriage from breaking by sending the couples to compulsory counseling, and arbitration, granting them time for conciliation of their disputes before finally granting a divorce. This is just to prevent the marriage, a social institution. However, in some cases, it is impossible for any reconciliation between the parties and the efforts of the court go in vain. But they say that it's always worth the try, for example in the case of habitual domestic violence or cheating.

References

[1] 1976 SCC OnLine AP 98

[2] Chetan Dass v. Kamla Devi, AIR 2001 SC 1709.

[3] AIR 2017 SC 2018

[4] AIR 2002 Raj 382

[5] Adit Narayan v. Mahabir Prasad, (1921) 23 Bom LR 692

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