This Article is written by Kinkini Chaudhuri (a student of Amity University, Kolkata pursuing a BBA LLB (H))
Who Is A Hindu?
In terms of Hindus, law is a part of dharma. Dharma means the acts or customs which were followed by the people from time immemorial and have been brought down by its successors. There are two kinds of customs:
- Customs without sanctions
- Customs with sanctions.
Law is a branch of dharma
According to Manu “Dharma” is what is followed by those who are learned in Vedas and what is approved by the conscience of the virtuous who are exempt from hatred and inordinate affection. Further, Medhatithi, one of the early commentators on Manu, says that the term “dharma” stands for ‘duty’. It signifies the sum total of religious, moral, social and legal duties. From this aspect, it has been said that Hindu system is a system based on duties.
Hindu law is a law which emanates from Smritis expounded in Sanskrit commentaries and digests. These Smriti texts do not make any clear-cut distinction between rules of law and rules of morality or religion. These rules of religion and morality were dealt with at one and the same place with the rules of law. In the case of Shri Balsu, the privy Council distinguished between mandatory (legal) rules and directory (moral) rules. The High Courts in India have tried to lay down some tests e.g. Ram Harak v. Jagan Nath, (1938) 53 All. 815, approved in Abhiraj v. Devendra, 1962 S.C. 351. On this basis an entire body of Hindu law has been built up. Even during the Mohammedan rule in the country, the Smriti law was continued to be fully recognised.
Marriage in Hinduism: The literal meaning of marriage is harmonisation between a male and a female for ultimate eternity, so that they can pursue dharma, which means the duties. There are various traditions that are to be followed.
Section 5 of Hindu Marriage Act, 1955 states that, as per Sections 5(ii) and 5(iii) the Hindu marriage is not so much of a religion and is more of a result of mutual consent.
Section 2 of the Hindu Marriage Act, 1955, marriage amongst Hindus in any form irrespective of caste or creed or amongst any person who is bound under Hindu Marriage Act, 1955 like Buddhists, Sikhs, Jains and so-called Hindus is a Hindu Marriage.
Division of Property Post Marriage Under Hindu Marriage Act, 1955:
- Daughters: The daughters are considered to be at par with the boys to their father’s property.
- The daughters also have a share in the mother’s property.
- The amendment in the year 2005 had removed all types of gender discriminations in the Hindu Succession Act, 1956 and the following rights are received by a Hindu daughter:
- The daughter of a coparcener will from the birth be a coparcener in her own right in the same manner.
- The daughter will have the same rights as the son has.
- The daughter will have the same liabilities as the son has as a coparcener.
- The daughter will be allotted with the same share as are allotted to a son.
After a daughter gets married, the daughter will have no shelter in her father’s house. Neither will she receive any sort of maintenance nor charges for being her passed on her husband. However, after the death of her husband, or after desertion, the daughter will have a full right to reside in her father’s house.
A woman will have full right over the property that has been gifted or has been willed to her.
- Wives: –A married wife will have an exclusive right over her individual property, until and unless she gifts or parts with anyone.
- She is entitled to maintenance, support and shelter from her husband, or if her husband belongs to a joint family, then from the family.
- After the partition of the joint family estate, which is between her son and her husband, she will have an equal right, just like others.
- Similarly, upon the death of her husband, she is entitled to an equal share of his portion, together with her children and his mother.
- Mothers: –The mothers will have a right to maintenance from those who are not dependent. A widowed mother will be termed under Class I heir.
- A widowed mother will have a right over an equal share to the property of the son if there is a partition of the estate of the joint family which takes place amongst the sons.
- All the property owned by her may be disposed by sales or by will, whatever she chooses.
- After her intestate death, her children will inherit the property equally, regardless of the gender.
Maintenance: Section 125 of the Criminal Procedure Code (CrPC) describes maintenance of the wives, children and parents.
If any person having sufficient means neglects or refuses to maintain-
- His wife, who is unable to maintain herself, or
- His legitimate or illegitimate minor child,
- His father or mother, unable to maintain himself or herself
Case: Mangatmul V. Punni Devi (1995) (5) scale 199 SC
It was held that “maintenance must necessarily encompass a provision for residence. Maintenance is given so that the lady can live in a manner more or less to which she is accustomed. The concept of maintenance must therefore include provision for food and clothing and the like and take into account the basic need of a roof over the head.
Share over Property: After a divorce, a wife will be entitled to a 50% share over her husband’s property. It will also depend on the living of the wife.
