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Hindu Law

Hindu Law a body of rules, customs and usages guiding the beliefs and ways of life of the Hindus. There are two schools of thought about Hindu law, namely Dayabhaga and Mitakxara. The Dayabhaga, a treatise on the inheritance and succession based mainly on the Yajnavalkya-smrti, is believed to have been written sometime after the eleventh or thirteenth century by Jimutavahana. On the other hand, the Mitaksara, written by Vajnanesvara (c 11th century), seems to be an elaborate commentary on the Yajnavalkya-smrti. On matters relating to inheritance and succession, the Dayabhaga was used extensively as an authority in Bengal. Dayabhaga's authority was paramount. However, in matters relating to adoption, the Dattaka-chandrika, attributed to Kubera (c 16th century), was considered an important authority. In Bengal, the Hindu laws, as have been revealed in the Sanskrit works, seem to have developed too vast and intricate. The civil laws, except for such matters as partition, inheritance and succession, seem to have been administered in Bengal by the British rulers by the principles applied in common with other parts of India. These common civil laws were formulated at the British initiative in two compiled works in Bengal. One was titled Vivadarnavasetu (English translation by Halhed in 1776) and the other Vivadabhangarnava (English translation by Colebrooke in 1796). So far as procedural law was concerned, it was systematically formulated on all-India basis in the Civil Procedure Code (Act V of 1908).

After the partition of India in 1947 Hindu law was changed in India. In 1955, new Marriage Act was enacted in India whereby marriage system has totally been changed and plurality of wives was given a go bye. Divorce system was also introduced. In 1956, by the enactment of another Act the law of inheritance of Hindus, Mitaksara or Dayabhaga was changed. Sons and daughters were given equal share on the demise of their father or mother while wife or husband was due for one third share. Practice of two schools, Mitaksara or Dayabhaga, was changed and one law was enacted for all the Hindus of India. But in Pakistan old Hindu law prevailed and Dayabhaga system of Hindu law remained in East Pakistan, and remained same also after the emergence of Bangladesh.

Marriage According to two schools of thought about Hindu law, Dayabhaga and Mitaksara, marriage was of eight kinds of which the first four were approved, and the last four unapproved. They were (i) Brahma: The best form of marriage in which the bride, decorated with ornaments, is given away to the bridegroom, who is learned and of good conduct, without requiring any gift or present from him; (ii) Daiva: In this from of marriage the daughter is given away, as a sacrifice, to the officiating priest; (iii) Arsa: This form of marriage is solemnised with a gift to the bride in the form of two pairs of cows from the bridegroom; (iv) Prajapatya: In this form of marriage the father offers his daughter to the bridegroom without receiving any present from him, only with blessings that they might live happily and faithfully together; (v) Asura: This is the form in which the bridegroom purchases the bride from her father or other paternal kinsmen; (vi) Rakshasa: A type of marriage where the bridegroom forcibly carries away a crying girl after assaulting or mutilating her relatives; (vii) Gandharva: A kind of marriage solemnised by mutual consent and agreement between the bride and the bridegroom; (viii) Paisacha: The worst form of marriage in which a lover secretly ravishes a maiden (without her consent) when she is asleep, intoxicated or mentally deranged.

According to Dayabhaga law there is hardly any restriction on marriage of a Hindu male. Divorce is not in law except on a very limited ground of chastity of wife. Wife and children are however entitled to get maintainance from husband if left uncared for. A widow is also entitled to get maintainance from father-in-law's estate if her husband has not left enough for her maintanance. A Hindu widow can at will remarry. The law of remarriage was enacted in 1856 mostly at the pursuance of iswar chandra vidyasagar.

Adoption The two renowned works on adoption, viz the Dattaka-mimamsa of Nanda Pandit and Dattaka-chandrika, attributed to Kuvera, were accepted all over India. But, in case of difference between the two, the latter was followed in Bengal.

The main points, according to the Dattaka-chandrika, are as follows. There are two motives in adopting a son; viz. (i) to perform obsequial rites in honour of the adoptive father and his ancestors, (ii) to be the successor of the adoptive father. Any sonless man may adopt a son; 'sonless' implies the absence of son, grandson and great-grandson. Except for a Sudra, one cannot adopt a daughter's son or a sister's son. A person's single son cannot be given in adoption. A woman cannot give away a son without the permission of her living husband. If the husband is dead, she can do so in the absence of prohibition by the husband. An adopted son is placed on equal footing with a natural son.

Inheritance and succession The main points of difference between Dayabhaga and Mitaksara are: (i) Dayabhaga does not recognise birth-right to property, Mitaksara does so; (ii) Drayabhaga holds, right to inherit and order of succession are determined by principle of spiritual benefit; in Mitaksara blood relationship is the determinant. Spiritual benefit consists in performing obsequial rites and offering pindas (rice-balls). Plainly stated, the right of a person to a deceased person's property is determined by his capability of offering pinda for the benefit of the latter; (iii) In Dayabhaga, members of a joint family hold shares in quasi-severalty; they can dispose of them even before partition; (iv) In Dayabhaga, even in an undivided family, the widow takes the share of her husband dying childless; in Mitaksara, she cannot do so.

In case of inheritance from father, according to Dayabhaga law, sons exclude others except in case of non-agricultural property. In case of non-agricultural property a wife gets a share equal to that of a son. Sons or son of a predecessed son inherit from their grandfather the share which their father would have inherited if had been alive at the time of their grandfather's death. If neither sons nor wife, nor sons of a predecessed son is alive, the daughter or daughters inherit with the priority to the maiden daughters. Barren widowed daughter or daughters having no son or probability to have no son are excluded from inheritance to their father. Loss of chastity is also a ground which can exclude a wife or daughter from inheritance. Only five classes of women inherit according to Dayabhaga School of Hindu law. They are according to preference: wife, daughter, mother, father's mother, father's father's mother. But these women inherit only in life interest, that is they are owners with limited rights and on their death the property would pass to the nearest male heir of the deceased male owner and not to the heirs of the female heirs. The woman or women inheriting in life interest can sell the property only for limited legal necessity.

Stridhana Property acquired by women or received as gifts are own property of women, and are called stridhana property. They can sell or give away this property as per their desire. Stridhana are divided into four classes according to the origin of acquisition by woman. Succession to stridhana is also different giving the daughters a better right of inheritance.

The order of succession to stridhana, depending on its different kinds, is as follows: (i) Sulka (bride's price): full brother, mother, father, husband; (ii) Yautuka (gifts made at the time of marriage): un-betrothed daughters, betrothed daughters, married daughters having or are likely to have sons, barren married daughters and childless widowed daughters sharing equally; sons, daughter's sons, son's sons, sons' sons' sons, step-sons, step-sons' sons, step-sons' sons' sons. In the absence of any of the above, the yautuka of a woman would devolve in the order: her husband, brothers, mother, father; (iii) Anvadheya (gifts or bequests made by the father subsequent to marriage): order of succession is the same as in yautuka with the difference that (a) sons are preferable to married daughters; (b) in case of a woman, dying childless, the order of succession is brother, mother, father, husband; (iv) Ayautuka (gifts or bequests from relations made before or after marriage; gifts and bequests from father before marriage): sons and maiden daughters sharing equally; married daughters having or are likely to have sons; son's sons; daughter's sons; barren married daughters and childless widowed daughters. In the absence of all the above, Ayautuka devolves in the following order: brother, mother, father, husband, husband's younger brother, husband's brother's son, sister's son, husband's sister's son, brother's son, daughter's husband, husband's sapindas, sakulyas and samanodakas, father's kinsmen.

Persons deprived of inheritance The following are some of those who are not entitled to share in properties: impotent, born blind, born deaf, lunatic, idiot, dumb, having deformed limbs, apostate, son of an apostate, incurably diseased, leper, renouncer of worldly life, renegade. A Hindu converted to other religion cannot inherit if the succession opens after conversion. If a Hindu widow remarrys she has to give up the property or right she had received from the previous husband.

Disowning or to disinherit an heir is permitted in Hindu law. Religious endowments are common in Hindu law and person appointed for its management is called shahayet. In the absence of the heirs the property of the deceased male will vest in his preceptor, pupil and fellow-student in this order.

No one can trace the exact time or year of the birth of Hindu law. However, it is believed that Hindu law was not created or promulgated in a day like other laws. It was probably grown through a process of evolution and custom until the writers made it a law. [Sures Chandra Banerji and Tapan Kumar Chakraborty]