Family Law Notes - Unit One - GGSIPU Syllabus

FAMILY LAW 

Unit1: Hindu Marriage Act and Dissolution

Who's a Hindu?

'Hindu' is a difficult and a vast term to define. It's a religion which is being practiced over five thousand years.

A Hindu is a person who practices the following:

Sikhism, Jainism, Buddhism, AaryaSamajiand a person who isn't aChristian, Muslim, Parsi.

There are two types of Hindus:

1. By birth

If a person's both or 1 parent who raises the child is a Hindu then the child is also known as Hindu. It includes both legitimate and illegitimate children.

2. By conversion

If a person leaves her/his existing religion and converts into Hinduism, Sikhism, Jainism, Buddhism then the person is known as a Hindu. A person may convert or reconvert to Hinduism or in any of the categories being considered as a part of Hinduism at any point in time.

Process for conversion or reconversion into Hinduism:

1. By undergoing a formal ceremony prescribed by the religion, caste, community or any other prescribed customary practice/ceremony.

2. By expression of bonafide intention and acceptance by family and community s/he is being entered in.

3. If a person having bonafid eintentions accepts Hinduism and claims s/he has been following Hinduism for sometime.

A person doesn't cease to be a Hindu, if:

1. S/he becomes an atheist.
2. Deviates from the central doctrine of Hinduism.
3. Lapses from orthodox practices of Hinduism.
4. Adopts western lifestyle.
5. Decries Hinduism.
6. Eats beef or does everything which ordinarily a Hindu wouldn't do.

Sources of Hindu Law

There are two sources of Hindu law:

1. Ancient sources
2. Modern Sources

Ancient sources of Hindu law

The following are considered as the ancient sources of Hindu law:

• Shruti

It refers to what's been heard.It is believed that rishi munis reached the height of spirituality where they were revealed the knowledge of Vedas.

The Shruti includes 4 Vedas:

- Rig Veda
- Yajurveda
- Sam veda
- Atharva Veda

Along with the Brahmins. They are considered as the appendices to Vedas. Vedas primarily contain theories of sacrifices, customs, rituals.

• Smriti

It refers to what's remembered. It is known as the memoir of knowledge through which systematic teachings of Vedas started for the regulation of society and incorporation of local culture.

• Commentary and Digests

It refers to the work done in order to explain a particular Smriti (known as commentary). Digests are incorporated and explained material from all Smritis.

• Customs

They are the norms. They are the major sources of Hindu laws, also known as transcendent laws.

Essentials of valid customs:

- Must be reasonable.
- Shall be there since ambiguity of time
- Shall be in continuation
- Shall not be against public policies
- Shall be moral
- Shall not be against any law

Modern sources of Hindu law

They are based on the principle of equity, justice and good conscience. 

Executive, legislature and judiciary are known as modern sources of Hindu law.

Marriage Under Hindu Law

According to Hindu law, marriage is a sacrament. It is considered as one of the co-purifying ceremonies. It's a tie which cannot be broken and is eternal, from birth to birth.

Objectives of marriage are :

• Cohabitation
• Procreation of children
• Performance of ceremonies

Sanctity of marriage in Hinduism is from a divine force and is pristine.

It is considered that husband receives wife from God and must always support and respect her, if she's faithful towards him.

According to ancient Hindu law:

Marriage is obligatory not only for procreation of son but to perform religious ceremonies and spiritual duties.

Marriage according to shastras is a holy sacrament and gift of the girl to a suitable person is a sacred duty, put on father. On performance of which, father fulfills one of his major spiritual duties.

Hindu law isn't a civil contract but a sacrament

Hindu law is different from Christian and Muslim law respectively. Similarly the nature of Hindu marriage is different from the two.

i.e. : It cannot be broken or made by an offer. As in both Christian as well as in Muslim law, there'sa proposal and then an acceptance or rejection of that proposal while performing the matrimonial ceremony.

In Hindu law there are several religious ceremonies like :

- Engagement
- Exchange of garlands (var mala among bride and groom)
- Saatphere (7 rounds around the fire by bride and groom)
- Saptapadi (7 steps taken towards the direction of moon by bride and groom)

Hindu marriage is a sacrament as the concept of divorce was unknown to ancient Hindu texts. Rather, marriage is considered as a bond for life and beyond. 

According to ancient Hindu texts, marriage is a union of 2 souls for the performance of religious duties and ceremonies.

Following points support that Hindu marriage isn't a civil contract :

• Marriage is considered as indissoluble and is considered as a bond for life and beyond.
• It is considered as a holy practice for the performance of religious duties and ceremonies.
• Wife is considered as Ardhangini (better half of the man ie : husband) who completes him under Hindu law.

Present status of Hindu marriage:

Even now it is considered as a sacrament. However, now there's an option of divorce.

Section 13 and 13(B) of HMA, 1955, provide grounds of divorce and divorce by mutual consent respectively.

Forms of Hindu Marriage :

Hindu scriptures admit 8 forms of marriage, those are :

1. Brahma marriage: In this the girl is decorated with clothes and ornaments. she's given to a gentle and learned bride-groom. This form of marriage is still prevalent.

2. Prajapataya: In this the daughter's offered a groom with blessings of enjoyment of marital bliss

3. Arsha marriage: Also known as Rishi's marriage. In this, Rishi used to accept a girl in marriage after giving a cow or bull and some clothes to the parents of girl.

4. Divya marriage: In this, the girl is decorated with clothes and ornaments and is offered a person who could perform purohityajna.

5. Asura marriage: in this bride-groom gets bride in exchange for some articles and money with the family members of bride. This was observed in case of marriage of Pandu with Madri

6. Gandharva marriage: This form of marriage is a result of mutual affection and love between boy and girl. Example: Dushyanta and Shakuntala.

In this form of marriage, ceremonies can be performed after the sexual relations between the two. It has been named so because of it's prevalence among Gandharvas.

7. Rakshas Marriage: This was prevalent when women were considered as the prize of war. In this the groom used to take away the bride by killing or injuring her family members.

8. Paisach marriage: This was considered as the most degraded from of marriage. In this, man enters into a sexual relationship with a sleeping/unconscious/drunk woman.

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