HINDU LAW – SOURCES OF HINDU LAW, RESTITUTION OF CONJUGAL RIGHTS AND JUDICIAL SEPARATION
How many sources of Hindu law are there?
There are basically two sources of Hindu law that depict the origin of such law. It shows different cultures and customs that are considered to be one of the important factors promoting the study of such sources.
The first source of Hindu law is Ancient sources that comprise of Shrutis, Smritis, Customs, Digests, and commentaries whereas the other source of Hindu law is Modern source which comprises of principles of equity and good conscience, Precedent, Legislation.
Who is Hindu as per Hindu law?
There is no specific definition of persons who falls under the category of Hindu. As per section 2 of the Hindu marriage act 1955, the following persons are considered to be Hindus-
- A person who is Hindu. Jain, Sikh, or Buddhist by religion;
- If a child belongs to Hindu parents;
- If he is born out of a Hindu parent where one of the parents is Hindu.
- Those persons who are not Muslim, Christian, Parsi, or Jew by religion.
[Gogiereddy V. Gogireddy] 1972
It was held by the court that the modern Hindu law consists of rules relating to personal law which is applicable to Hindus and non-Hindus
Who wrote Hindu law?
There has been a different text to determine what actually the classical Hindu laws were which was written on a different note. There were many sources that led to the origin of Hindu law and one of such was considered was Manu Smriti where the first text of Hindu law was written. Apart from the manu it is also said that John Mayne, in 1910 wrote the Hindu law.
What are the main schools of Hindu law?
Commentaries and digests became the reason for the emergence of schools of Hindu law.
Earlier Hindu law was applicable to the whole of India and eventually, it got divided into two main schools and sub-schools-
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Mitakshara
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Dayabhaga
Mitakshara prevails in all parts of India except in Assam and Bengal. It means a concise work that was written by Yajnavalakya and was considered as the orthodox school. The Mitakshara School is divided into five schools-
- Banaras School- It extends to the northern part of India except Punjab and its main authorities are Virmitrodaya and the Nirvada Ratnakara
- Mithila School- It is followed in Tirhut and some parts of districts of northern Bihar and the main authorities of this school are Vivada Chintamani and vivada Ratnakar
- Bombay School-This school extends to Western India including the whole part of Bombay presidency as well as Berar and the main authorities of this school are Vyavhara Mayukha and virmitrodaya and the nirnaya-Sindhu
- Madras school- It is also called as Dravida school and it covers the Southern part of India
Including whole part of madras and the authorities of this school is Smriti Chandrika, the prashara madhaviya, the Saraswati vilasa, and the Vyavahara Nirnaya
Dayabhaga School –The Bengal school propagated the principles of Dayabhaga school and follows conservatism was written by Jimutavahana in the 12th century.
What is custom under Hindu law?
Customs are considered to be the harmonious behaviour of human beings. With the passage of time, the behaviour of human beings has been changing which led to the emergence of customs. Customs which is regarded as the third source of Hindu law is also known as a rule of conduct wherein the rule of customs is incorporated eventually with the passage of time under Hindu law.
It can be considered as the principal source of the development of Hindu law.
In modern times customs are recognized only once they are ancient and invariable. Customs are always considered to be continuous in nature which becomes part of such laws. The principles of custom under Hindu law follow with its features like-
- A. It should be continuous- There must be sufficient indication that customs are being followed since ancient times and are continuing. Discontinuance may affect such laws.
- B. It must be certain-the customs as to its existence must be certain without any allegations of it being not applicable to such laws.
- C. Unreasonable- the customs must not be unreasonable which means its existence must be found on its reasons.
- D. It should not be immoral-customs should always flow having the standards of morality.
Therefore the customs which are dealt with under Hindu law are well recognized with their existence in form of these features where the laws and rules and based out of these principles and also where there are court judgments and provisions these customs come into the picture.
Section 3 of the Hindu Marriage Act, 1955 states that customs are the rules that follow for a long time and have been recognized as an important source under Hindu law. For its existence and recognition, customs must be ancient and reasonable and should not oppose public policy.
[Luhar Amrit Lal Nagji V. Doshi Jayantilal Jetrala] 1960 SC 964
The Supreme Court held that custom as a source is considered to be the important source of Hindu Jurisprudence.
What is the meaning of restitution of conjugal rights?
The right which compels either of the spouses to live with the other comes within the meaning of restitution of conjugal rights. Sometimes it happens that circumstances arise where either of the spouses does not want to live with others and wants to withdraw from society with a reasonable cause or an excuse.
This brings out the provision of conjugal rights for the other spouse to rightfully bring back the other spouse. The aggrieved party may knock on the doors of the court for recognition of such rights.
Section 9 of Hindu Marriage Act, 1955 is a provision saying about the Restitution of Conjugal Rights wherein the law provides that when either of the spouses withdraws from the society of other, the aggrieved party may apply to the court for a direction that the other party should live with him or her.
The conditions for granting relief are-
- The withdrawn from the society of either of the spouses is without reasonable cause.
- The statements made in respect of the petition are true.
[K Kanthimathi V. Sparameswara Iyer] 1974
The Kerela High Court that if the wife has withdrawn from the society without reasonable cause on the point where she was anxious to live with her husband but not as long as husband brother and aged parents are living with him. The court, therefore, dismissed the plea.
[A.E Thirumal Naidu V. Rajummal alias Rajalaxmi] 1968
It was held by the Madras High court that an agreement that would state living separation would not allow the wife to obtain a decree for restitution of Conjugal rights. Under this Hindu law, it is considered to be void.
Where do you file restitution of conjugal rights?
Under section 23 of the Hindu Marriage Act, where the petitioner has to proof the court that either the spouse has without reasonable excuse withdrawn from society. Therefore, if the wife has without reasonable cause has withdrawn from society, one may file a petition before the District Judge for such relief. When such petition is to be filed, there must be a bonafide ground for the Court to allow the petition for bringing back the spouse in the society
Can the Court force the wife to stay with her husband?
The Supreme Court in the following cases stated that the wife is not the property of her husband that should be weighed on his choice and intensions.
[kamadi Bhavani V. Kamadi Lakshmanaswamy] 1994
It was held by the Court that the institution of marriage is something which is based on mutual enjoyment giving respect to the women by taking off bondages and not considering her as an object.
[Anukriti Dubey V. Partha and another] 2016
The court has rightly observed the right to enforce the wife’s residence against her husband. She is regarded and treated as equal by law and the rights of both would coexist as long as they share their institution of marriage.
What do you mean by Judicial Separation?
Judicial Separation leads to reconciliation or to divorce. The meaning of judicial separation is that the parties are living separately from each other and it is usually granted on specifies ground. It can be termed that the parties are kept under the period of interval so as to decide for reconciliation.
This provision gives an opportunity to the husband and wife about rethinking their marriage and giving chance to them again before going through with the divorce procedure.
Under this, the parties live separately for some period of time with having space between them independently living and letting themselves think about continuing with marriage or not.
[Lachman Utamchand Kirplani V. Meena Alias Mota] 1964
The Supreme Court held that there should be an effective ground for the judicial separation which is of such a nature that entitles the parties to claim for such decree. This is a decree which is available to both parties.
How is Judicial Separation different from divorce?
Although the procedure is the same but, there is a certain difference between them.
- Judicial Separation does not put end to marriage whereas divorce puts an end to the marriage.
- Under divorce, the parties are free to remarry but under Judicial separation, only the marital rights and obligations are suspended, they continue to be husband and wife.
Which is better divorce or separation?
There are certain advantages giving to the parties going for the decree of judicial separation rather than the divorce. The separation gives the parties’ chance of reconciliation and the institution of marriage can be saved and there can be fewer chances of abuse of marriage institution.
Can you remarry after judicial separation?
The decree of judicial separation doesn’t allow the spouses to go for remarriage.
Article by – Nitisha Sharma