HINDU LAW IN BANGLADESH: Nature, Sources and Schools

Introduction: Family Laws deal with the relationship of men and women in the family, such as marriage, divorce, dowry, child maintenance, guardianship, custody, restitution of conjugal life and inheritance.

Definition:

As it has been being practiced for about to 6000 years, Hindu law is considered to be the most ancient and prolific law in the world. But, initially the law was not intended to be practiced for the purpose of removing any crime or transgression from the society rather it was established that the people will follow it in order to attain salvation. Originally, Hindu law was established so that the needs are fulfilled for the welfare of people.

In Sir Dinshah F. Mulla’s ‘Principles of Hindu Law’, Hindu Law is defined in the following words:

 “Wherever the laws of India admit operation of a personal law, the rights and obligations of a Hindu are determined by Hindu law, i.e. his traditional law, sometimes called the law of his religion, subject to the exception that any part of that law may be modified or abrogated by statute.”

From the above definition it is clear that Hindu Law is a body of rules, customs and usages, and ways of life and the social conditions of Hindus such as marriage, divorce, adoption, inheritance, minority and guardianship, family matters, etc. Though Hindu law is considered as divine law by Hindu community, it is revealed form unknown God or Great Power not from one identified God like Islamic law.

The word ‘Hindu’ was first derived from Sanskrit word Sindhu, the historic local designation for the Sindhu River flowing through northwestern part of the Indian subcontinent. The word first appeared in the Old Persian language.² A Hindu is an adherent of Hinduism but it is not only Hindus who must follow Hindu law but there are several other communities and religious classes those are subject to its rules and ideologies such as Jains, Buddhists, Sikhs, Brahmo-Samajists etc. among the inhabitants of the Indian sub-continent.  

Sources of Hindu Law: Primarily the sources of Hindu Law can be classified into two categories i.e.

1.      Ancient Sources: Ancient sources are sources those developed the concept of Hindu law in ancient times. It is further classified into four categories

a.      Shruti

b.      Smriti

c.       Customs

d.      Digest and

e.       Commentaries 

2.      Modern sources: Mordern Sources of Hindu law indicate the contemporary developments and its usage in the modern society society. It can categorized into following three categories:

     a.      Equity, justice and good consideration

     b.      Precedent

     c.       Legislation

Ancient Sources

a.      Sruti / Vedas: The Sruti literary means “what was hard”. The Sruti stands for Vedas; i.e. the Rig, the Yajur, the Sama, the Atharva. The approximate period of the Vedas is accepted to be 4000-1000 B.C. The Vedas outline the way of life and other spiritual issues thinking, customs, thoughts, etc. However, they do not deal with lawyers’ laws that can be enforced in any systematic manner.

b.      Smrity: “Smrity” means “what has been remembered”. Smrity is based on the memory of the sages (Rishis) who were the repositories of the sacred Revelation. However, the Smriti was recollected or remembered by the Rishis through Dharma Shutras and Dharma Shastras. “Mayne's Treatise on Hindu Law” draws the following definition:

“The Smritis (what is recollected or remembered) are o f human origin and refer to what is supposed to have been in the memory o f the sages who were the repositories of the revelation.”

c. Commentaries and digest:

The third ancient source of Hindu law is commentaries and digestives. It played a very major role in developing the very concept of Hindu law. Commentaries and digestives are regarded as the interpritations of Smritis. Single interpretation of smritis is called a commentary on the other hand different interpretations of that are called digestives. Commentaries and digestives have expanded the scope of Hindu law. Dayabhaga and Mitakshara are considered to be the two most important commentaries.

d. Customs:

Preceding three sources are mostly related to religious philosophies which covered spiritual issues but Custom is said to be the legal development of Hindu Law. A custom is the rule, which obtained the force of law due to its practice in a particular family or in a particular district, for long time. It must be ancient, certain, reasonable and being a derogation of the general rule of law, must be construed strictly. There are many case laws which proved that the custom has legal value.³ However, no custom is valid if it is opposed to morality or public policy or to any express enactment of the Legislature.

There are certain characteristics which are needed to be fulfilled for declaring custom to be a valid one.⁴ They are:-

(i)   The custom must be ancient. The particular usage must have been practiced for a long time and accepted by common consent as a governing rule of a particular society.

(ii)  The custom must be certain and should be free from any sort of ambiguity. It must also be free from technicalities.

(iii) The custom must be reasonable and not against any existing law. It must not be immoral or against any public policy and

(iv) The custom must have been continuously and uniformly followed for a long time

Modern Sources:

a. Equity, justice and good consideration:

According to Goutama,

“In cases for which no rule is given, that course must be followed of which at least ten persons who are well instructed, skilled in reasoning, and free from covetousness approve.”

Yajnavltkya said that “when on a matter there were conflicting rules of law, the matter should be decided based on Nyaya, (natural equity and justice)”⁵. However, Hindu Law followed rules of equity, justice and good conscience to prevent injustice from the ancient period but modern version of Hindu law inherited the concept of equity, justice and good conscience as source of law from the British administration of justice of India.

Lucy Carroll put it thus:

 “Hindu law as administered by the British-Indian Courts was a mixture o f Shastric Law, custom, and case law, with a hardy dose of English legal concepts and notions, simplified and standardized for ease o f application and administrative convenience.”

Factum Valet: The rule of ‘Factum Valet’ is based on the Latin maxim - ‘factum valet quod fieri non debuit’ which means that ‘what ought not to be done, become valid when done it already’. In other words, 'a fact cannot be altered by a hundred texts'.’ However, this rule of Hindu Law describes that once an act is done it becomes legal in spite of its being declared illegal in the text. Thought the author of Dayabhaga originated the concept, its existence is also recognized by the followers of the Mitakshara.

This doctrine was applied on the grounds of equity, justice and good conscience while administrating the old Hindu Law texts. The rule stipulates that recommendatory or directory rules of Hindu law can be altered by any act under this doctrine. If such formalities are ‘mandatory’ in nature, this doctrine cannot be applied.

For example: ‘In the ancient text, the father had to give consent for the marriage of his minor daughter given in marriage to a boy. In the absence of the father, his wife i.e. the mother of the girl gave such consent to such marriage. In the ancient Hindu text, only the father had to give such consent and not the mother. Though it was not prohibited, the mother had done it. Such defect in giving consent was cured by applying this principle of factum valet.’

b. Legislation: There are some codified sources which include legislative enactments. It is considered as a base for the growth of Hindu law in the modern world. The legislation is considered to be the codification of customs which plays an essential role in expanding the concept of Hindu law. It has been stated that in order to meet the new conditions of the society it became a necessity to codify the law. Most of the codification of Hindu laws which are applicable to Bangladeshi Hindus was done during the British period. These include:

1.      The “Hindu Widow’s Remarriage Act,1856"

2.      The “Sati Regulation,1829”

3.      The “Child Marriage Restraint Act,1929”

4.      The “Inheritance Act,1925”

5.      The “Hindu Women’s Right to Property Act,1937"

6.The “Hindu Women’s Right to Separate Residence and – Maintenance Act, 1946."

c. Judicial Decisions: Judicial decisions being authoritative and binding are considered to be another important dimension of modern sources of Hindu Law. The doctrine of precedent was established on the principle that it will be applied in the cases resembling the same facts and circumstances of a case already decided.

For Example:

1.      Utpal Kanti Das Vs Monju Rani Das (50DLR AD 1998 47)

2.      Amulya Chandra Madak vs. State- “A mere exchange of garlands does not constitute a valid marriage.”

SCHOOLS OF HINDU LAW: 

The Schools of Hindu law emerged from the commentaries and digests. These schools have widened and developed the scope of Hindu law. The two major schools of Hindu law are as follows- –

a.      Mitakshara

b.      Dayabhaga

1. Mitakshara School: 

Mitakshara is a running commentary of the Smriti written by Yajnvalkya. The philosophy of this school is more orthodox than that of the other. This school is applicable in the most of the part of India except in West Bengal and Assam. Though it is applied in whole of the Indian sub-continent, different parts of India practice this law differently because of the diversified customary rules.

Mitakshara is further divided into following five sub-schools which come under the ambit of Mitakshara law school. They enjoy the same fundamental principles but differ in certain circumstances:

1.      Benaras Hindu law school

2.      Mithila law school

3.      Maharashtra law school

4.      Punjab law school

5.      Dravida or madras law school

2. Dayabhaga school :

Dayabhaga is mostly applicable in Bangladesh, Assam and West Bengal. It is regarded that Dayabhaga was incorporated in between 1090-1130 A.D.⁶   It is considered to be a digest for the leading smritis and  its primary focus was to deal with partition, inheritance and joint family. Dayahaga unlike Mitashara focuses on inserting modern thinking and eradicating all absurd and artificial rules of these issues of Hindu Law. Dayatatya, Dayakram- sangrah,  Virmitrodaya, Dattaka chandrika etc along with many other commentaries were followed in Dayabhaga school. 

Conclusion: Though, both of Dayabhaga and Mitakshara School of Hindu law are based on the main principles revealed by Sruti and Smriti, there have some differences in opinion between these schools in its interpretation. Thus, Dayabhaga is liberal in general and found more in practice for its suitability in the modern world. On the contrary, Mitakshara is proved to be conservative but more reliable system. Among others, following differences of Dayabhaga and Mitakshara Schools may be outlined in this regard:

• As to Partition: The Dayabhaga system believes in physical separation of the property and giving partitioned property to their respective owners. On the other hand, in the Mitakshara system, property of joint family is considered to be inseparable.
• As to Joint family system: In Dayabhaga school both male and female are considered as the member of joint family but in Mitakshara school only male members are considered as the member of the family.
• As to Right to property: In Dayabhaga, children shall have no right over property by birth until their predecessors dies but in the Mitakshara system, the son, grandson and great-grandson acquire the right to property by birth.
• As to Right of woman: In Mitakshara System women cannot demand any partition but in Dayabhaga system they can demand equal right in deceased husband’s property (for life time) along with she can have her stridhan property as her own forever.

1. Preo Bala Biswas, HINDU PERSONAL LAW OF BANGLADESH: IT’S IMPACT ON EQUAL  RIGHTS FOR WOMEN, Bangladesh Journal of Minority. Available at https://bdminority.net
2. https://home.csulb.edu/cwallis/100/worldreligions/hinduism.html
3. Resham Bai vs Shakuntalabai on 21 July, 2000, II (2000) DMC 72; Rukman Bai vs Sukhman Bai on 27 July, 2012; Utpal Kanti Das Vs Monju Rani Das (50DLR AD 1998 47) 2; Amulya Chandra Madak vs. State  etc.
4. https://blog.ipleaders.in/hindu-law-custom/
5. Preo Bala Biswas, HINDU PERSONAL LAW OF BANGLADESH: IT’S IMPACT ON EQUAL RIGHTS FOR WOMEN, Bangladesh Journal of Minority. Available at https://bdminority.net/
6. www.legalserviceindia.com/legal/article-5600-schools-of-hindu-law.html