Religion plays a vital role in everyone’s life and the importance of religion is also witnessed through the personals laws in force. Hindu law has its sources in one of the most ancient scriptures of Hindu mythology. The sources of Hindu law include Shruti, Smriti, digests, commentaries, and customs. These sources of Hindu law are also referred to as the ancient sources of Hindu law while as equity, justice, good conscience precedents and legislation are referred to as the modern sources of Hindu law.
Hindu Law has two main schools:
Dayabagha School prevails in Bengal and North-east states while as Mitakshara school is prevalent in rest of India.
Various changes have been brought in the Hindu Law by the codification and presently there are four major codified enactments of Hindu law namely:
- Hindu Marriage Act, 1955
- Hindu Succession Act, 1956
- Hindu Adoption and Maintenance Act, 1956
- Hindu Minority and Guardianship Act, 1956
Before discussing in detail the Hindu Law it is of great importance to define who are Hindus?
In India, it is witnessed that the Hindu community is in majority. However, till date, no precise definition of the term Hindu is given under any law or judicial pronouncement.
Section 2 of the Hindu Marriage Act, 1955 gives an inclusive definition of the term Hindu and lays down the list people who are considered Hindu for the purpose of the Act. The section lays down that following people are Hindu;
- Firstly, all those people who are Hindus, Sikhs, Jains and Buddhist by religion and these include such people who are converts and reconverts to the Hinduism, Sikhism, Jainism, and
- Secondly, all those people who are born of Hindu, Sikh, Jain and Buddhist parents in other words people who are Hindus by birth.
However, if one of the parents is a Hindu then the child must have been brought up as Hindu and it is irrelevant whether the child is a legitimate or an illegitimate child.
- Lastly, all those persons who are not Muslims, Christians, Parsis or Jews and are domiciled in India and no other laws are applicable to them such persons are treated as Hindus for the purpose of the Law.
It is pertinent to note that if a child is Hindu by birth and the parents of the child convert to any other religion then the child continues to remain a Hindu as long as under the parental right the child is also converted. In other words, the conversion of parents does not affect the child for the purpose of this Act.
Section 2 of the Hindu Marriage Act, 1955, therefore, lays down the list of people who are considered as Hindus for the purpose of the Act and to whom the Act shall be applicable. However, the Hindu Marriage Act is not applicable to people belonging to scheduled tribes even if they are Hindu by religion unless it is directed by the Central Government by notifying in the official gazette that the law must be made applicable on Scheduled tribes as most of the scheduled tribes are still governed by the customs followed by them.
Hindu Law owing to its origin and sources is one of the most unique law which is in force and one of the most unique feature of Hindu Law is that if a person establishes that a particular custom is applicable to him them such a person will be governed by the custom even if the custom is in derogation of the Hindu Law. Although the codification of Hindu Law has brought various changes and the codified Hindu Law overrides all rules and customs of Hindu Law yet the impact of customs is such that in certain area customs have been expressly saved. Also, it is well known to all that it is an established rule of Hindu law that customs override the sacred law.
Having discussed the importance of customs in Hindu law it is very vital to understand the meaning of the term custom. Section 3 of the Hindu Marriage Act, 1955 lays down that customs may be regarded as rules which having been continuously and uniformly observed for a long period of time have obtained the force of law. The Act also lays a proviso stating that it is important that a custom must not be unreasonable and opposed to public policy. Best civil lawyer in Delhi and family lawyers across the country are often found educating people about law and relevance of customs in laws. Also, Supreme Court lawyers in Delhi use customs while arguing cases in a court of law as customs achieve the status of law when they are reasonable.