Unit I — Dharma, Sources & Schools of Hindu Law

“Satyam vada, Dharmam chara” — “Speak truth, follow Dharma.” — Taittiriya Upanishad

Who is a Hindu? — The Statutory Test

flowchart TD
    ROOT["Who is a Hindu? — Sec. 2, HMA 1955"]:::root
    ROOT --> A["By Religion<br/>(Hindu in any form, incl.<br/>Virashaiva, Lingayat, Arya Samaj)"]:::leaf
    ROOT --> B["By Statute<br/>(Buddhist, Jain or Sikh)"]:::leaf
    ROOT --> C["By Birth<br/>(One or both parents Hindu,<br/>child raised as Hindu)"]:::leaf
    ROOT --> D["By Conversion<br/>(Bona fide intention +<br/>community acceptance)"]:::leaf
    ROOT --> E["Residuary<br/>(Domiciled in India, not<br/>Muslim/Christian/Parsi/Jew)"]:::leaf

    classDef root fill:#FFF8DC,stroke:#333,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Section 2, Hindu Marriage Act, 1955: “This Act applies — (a) to any person who is a Hindu by religion in any of its forms or developments… (b) to any person who is a Buddhist, Jain or Sikh by religion; and (c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion.”

In Simple Terms: A Hindu is (1) anyone who follows Hinduism in any form, (2) Buddhists, Jains, and Sikhs, and (3) anyone in India who is not a Muslim, Christian, Parsi, or Jew. The Supreme Court in Yagnapurushdasji v. Muldas (1966) confirmed Hinduism is “a way of life,” not a fixed dogma — keeping the definition broad and inclusive.

Ancient Sources of Hindu Law

Yajnavalkya Smriti: “Shruti, Smriti, Sadachara [conduct of good men], Priyam Atmanah [what is agreeable to oneself], and Samyak Sankalpaja [intent born of proper resolution] — these five are declared to be the root of Dharma.”

flowchart TD
    ROOT["Ancient Sources of Hindu Law"]:::root
    ROOT --> A["Shruti<br/>(Vedas — highest authority,<br/>divine revelation)"]:::leaf
    ROOT --> B["Smriti<br/>(Manu, Yajnavalkya,<br/>Narada, Parasara)"]:::leaf
    ROOT --> C["Commentaries & Digests<br/>(Mitakshara — Vijnanesvara<br/>Dayabaga — Jimutavahana)"]:::leaf
    ROOT --> D["Custom<br/>(Sadachara — conduct<br/>of good men)"]:::leaf

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    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
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The hierarchy runs: the Vedas (Shruti — divine revelation, highest authority) → the Smritis (Manusmriti, Yajnavalkya Smriti, etc. — sages systematising Vedic teaching) → Commentaries & Digests (Mitakshara by Vijnanesvara, Dayabaga by Jimutavahana, reconciling conflicting Smritis) → Custom. In Collector of Madura v. Moottoo Ramalinga (1868), the Privy Council itself relied on the Mitakshara and Dayabaga to settle a property dispute — establishing this hierarchy for Indian courts.

Why the order matters in an exam answer: A student who lists these sources in random order loses structure marks. Shruti is “heard” (revelation, eternal and unalterable); Smriti is “remembered” (interpretation, can be debated); Commentaries harmonise conflicting Smritis for practical application; Custom fills the remaining gaps where even the commentaries are silent. That descending order — from divine revelation to lived practice — is itself the answer’s backbone.

Custom — A Living Modern Source

Section 3(a), Hindu Marriage Act, 1955: “‘Custom’ and ‘usage’ signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law… provided that the rule is certain and not unreasonable or opposed to public policy.”

Burden of proof: The party relying on a custom must prove it — Ujagar Singh v. Mst. Jeo (1959). And critically: a custom that conflicts with a statute simply fails — Mirasa v. Mirasa (1974). This is the examiner’s favourite trap, illustrated in the solved problem below.

Kinds of custom recognised by courts: (1) Local custom — confined to a particular region; (2) Family custom — followed by members of a particular family (e.g., rules of succession peculiar to a royal family); (3) Class/Caste custom — followed by members of a community, caste, or sect (e.g., customary divorce among certain agricultural castes, recognised in Subramani v. Chandralekha). Each must independently satisfy the six requirements above — antiquity alone never suffices.

Mitakshara vs Dayabaga — The 1,000-Year-Old Property Debate

When Parliament codified Hindu law in 1955–56, it had to choose between two rival theories of family property. The Hindu Succession Act, 1956 (and its 2005 Amendment) effectively adopted the Mitakshara framework for most of India.

In Simple Terms: Under Mitakshara, a son is a co-owner from the day he is born — he can demand his share at any time. Under Dayabaga, the father is sole owner; sons get rights only when he dies. That single difference in when ownership vests explains nearly every doctrinal contrast in the table — survivorship, the father’s power of alienation, and even why a Dayabaga son could never restrain his father’s dealings with family property the way a Mitakshara son could.

To Whom Does Hindu Law Apply? — The Application Question

Sapna v. State of Kerala (2007) — A woman born to Hindu parents had converted to Islam and then reconverted to Hinduism. The Kerala High Court held the Hindu Marriage Act governed her divorce — she was a Hindu both at the time of marriage and at the time of filing the petition.

Under the codified Acts (HMA 1955, HSA 1956, HAMA 1956, HMGA 1956), Hindu law applies in four overlapping categories:

1. By religion — any person who is Hindu, Buddhist, Jain, or Sikh by religion.
2. By birth — any person born of Hindu parents (both, or even one — provided the child is raised as a Hindu).
3. By conversion — any person who has converted or reconverted to Hinduism, Buddhism, Jainism, or Sikhism, with bona fide intention and acceptance by the community (Perumal Nadar v. Ponnuswami, 1970 — no fixed ceremony required).
4. Residuary (domicile) — any person domiciled in India who is not a Muslim, Christian, Parsi, or Jew (these four communities have their own personal laws and are expressly excluded; tribal communities are excluded too, unless they voluntarily subject themselves to Hindu law).

Section 2, Hindu Marriage Act, 1955: “This Act applies to any person who is a Hindu by religion in any of its forms… and to any other person domiciled in the territories to whom this Act extends who is not a Muslim, Christian, Parsi or Jew.”

In Simple Terms: If you are Hindu (including Buddhist, Jain, Sikh), or you simply live in India and don’t belong to one of the four named excluded communities, Hindu law governs your marriage, succession, adoption, and guardianship — the residuary clause is deliberately wide so that no one in India is left without a personal law.

Case Laws

• Yagnapurushdasji v. Muldas (1966) — Hinduism is a way of life; the definition of “Hindu” is broad and inclusive.
• Perumal Nadar v. Ponnuswami (1970) — Conversion to Hinduism need not follow any fixed ceremony; bona fide intention plus community acceptance suffice.
• Abraham v. Abraham (1863) — Privy Council: once a Hindu converts to Christianity, Hindu personal law ceases to apply to him.

✏️ Sample Solved Problem (IRAC Method)

Problem: In a community in Rajasthan, there exists a practice since 1850 that daughters cannot inherit ancestral property. ‘X’ dies intestate in 2024. His daughter ‘D’ claims a share under the Hindu Succession Act, 1956. The family resists, citing the community custom. Decide.

I — Issue

Whether a community custom excluding daughters from inheritance overrides the Hindu Succession (Amendment) Act, 2005.

R — Rule

• Section 6, Hindu Succession (Amendment) Act, 2005 — daughters are coparceners by birth, with the same rights and liabilities as sons
• Section 3(a), HMA 1955 — a valid custom must not be “opposed to… law”
• Mirasa v. Mirasa (1974) — a custom contrary to an express statutory provision cannot prevail

A — Analysis

The custom may well satisfy antiquity (since 1850), continuity, and uniformity. But Section 6 of the 2005 Amendment expressly makes daughters coparceners by birth — an absolute statutory right that Parliament has deliberately created to correct historical injustice. A custom, however ancient, cannot override an express statutory provision; that is precisely the rule laid down in Mirasa v. Mirasa. The “opposed to law” limb of Section 3(a) defeats the family’s argument before any of the other custom-requirements even need to be examined. Decoy: do not get drawn into testing whether the custom is “ancient enough” — that question becomes irrelevant once the custom collides with a statute.

C — Conclusion

‘D’ succeeds. She is entitled to an equal share as a coparcener under Section 6 of the 2005 Amendment. The community custom fails because it is contrary to law — antiquity alone cannot save a custom that a statute has expressly overridden.

📄 The full PDF bundle has more problems and case-law tables for Unit I — including the shuddhi reconversion scenario, the complete Master Case List (8 leading cases), and 16-mark essay blueprints for “Who is a Hindu,” Ancient Sources, Custom, Mitakshara vs Dayabaga, and Application of Hindu Law. Get the bundle — ₹149