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Family Law I (Hindu Law)
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B.A. LL.B. (Five Years) · Sem 5
2017 Dec Examination
munotes.in
Mumbai
B.A. LL.B. (Five Years) Sem 5 Family Law I (Hindu Law) 2017 Dec Question Paper with Solutions
First published on munotes.in on 21 October 2026.
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The question paper reproduced here is the paper as set by Karnataka State Law University at the 2017 Dec examination.
Contents
The questions below are the paper as Karnataka State Law University set it at the 2017 Dec examination, in the order it was set.
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2017 Dec examination, reproduced as Karnataka State Law University set them, in the order it set them. Long reading passages are shortened to their first and last lines and our summary; the original paper prints them in full. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 100 · 13 questions answered
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
Q1Briefly explain the sources of Hindu Law with special reference to custom.[16]
Answer
For full marks, cover: what a source of law is; the ancient sources (Sruti, Smriti, commentaries and digests, custom) and the modern sources (justice, equity and good conscience, precedent, legislation); custom in detail: meaning, kinds, the essentials of a valid custom, proof, and its effect against the texts and against statute; Collector of Madura, Hurpurshad, Ramalakshmi Ammal and Saraswathi Ammal explained; where the codifying Acts keep custom alive; the limits of custom; a conclusion.
What a source of Hindu law means
A source of law is the place a rule comes from. A judge deciding a Hindu law dispute asks where the rule is found and how much weight it carries.
Hindu law has two sets of sources. The ancient (or primary) sources are Sruti, Smriti, the commentaries and digests, and custom. The modern (or secondary) sources are justice, equity and good conscience, judicial precedent, and legislation.
The ancient sources were ranked. Where two of them conflicted, the higher one prevailed in theory. Custom is the great exception, as this answer shows.
The ancient sources
- Sruti. Sruti means "what was heard". It refers to the four Vedas (Rig, Yajur, Sama and Atharva) with the Brahmanas and Upanishads. In theory it is the highest source, because it is believed to be revealed. In practice it holds very few rules of law. It is mostly hymns and ritual.
- Smriti. Smriti means "what was remembered". These are the texts of the sages. The early ones, the Dharmasutras, are in prose. The later ones, the Dharmashastras, are in verse. The best known are Manusmriti, Yajnavalkya Smriti and Narada Smriti. Most rules of family law and property are found here.
- Commentaries and digests. Later scholars explained and reconciled the smritis. A commentary (tika) explains one smriti. A digest (nibandha) collects many. Two works matter most. The Mitakshara is Vijnaneswara's commentary on the Yajnavalkya Smriti. He wrote it at the court of the Chalukya kings of Kalyani, in present-day Karnataka. The Dayabhaga was written by Jimutavahana in Bengal. The two schools of Hindu law grew out of these two works.
- Custom. Custom is the fourth ancient source. It is discussed in detail below, because in practice it is the strongest.
The modern sources
- Justice, equity and good conscience. Where no text and no custom gives a rule, the court decides on what is fair and just. This is the source of last resort.
- Judicial precedent. Decisions of the Privy Council, the Supreme Court and the High Courts now bind lower courts under the doctrine of precedent. The classical system did not know this source. The British courts brought it in, and today much of Hindu law is case law.
- Legislation. Parliament now makes most Hindu law. Four Acts codified most of the subject. The Hindu Marriage Act came in 1955. The Hindu Succession Act, the Hindu Minority and Guardianship Act and the Hindu Adoptions and Maintenance Act followed in 1956. Legislation is now the largest and the highest source.
Custom: what it means
Custom is a rule of conduct that a group has followed for a very long time. Because of that long practice, it has come to have the force of law. It is not a single act or a passing habit.
The Privy Council defined it in Hurpurshad v. Sheo Dyal, (1876) LR 3 IA 259. A custom is a rule which, in a particular family or a particular district, has from long usage obtained the force of law. The Board added that it must be ancient, certain and reasonable. Because it departs from the general law, it must be construed strictly.
The Hindu Marriage Act 1955 puts the same idea in statutory words. Section 3(a) says that the expressions "custom" and "usage" "signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family". The rule must be certain and not unreasonable or opposed to public policy. A family rule must also not have been discontinued by the family. Section 3(a) of the Hindu Adoptions and Maintenance Act 1956 is in the same terms.
The kinds of custom
- Local custom. A custom followed in a particular area, such as a district or a village.
- Class or caste custom. A custom followed by a caste or community wherever its members live.
- Family custom. A custom followed by one family. It is the hardest to prove, and it is lost if the family gives it up.
The essentials of a valid custom
A custom is valid only if it has all of these features.
- Ancient. It must have been followed for a long time. Indian courts do not insist on proof from "time immemorial", but a recent practice is not enough.
- Continuous and uniform. It must have been followed without a break, and in the same way each time.
- Certain. Its content must be clear and definite. A vague practice cannot be enforced.
- Reasonable. It must not be unreasonable or absurd.
- Not opposed to morality or public policy. An immoral custom is void, however old it is.
- Not opposed to statute. A custom cannot stand against an Act of Parliament that expressly abolishes it.
- Strictly proved. The person who relies on a custom must prove it by clear evidence.
Proof of custom
The burden lies on the person who sets up the custom. Two decisions show how strictly courts insist on proof.
Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar, (1872) 14 MIA 570. The dispute was about succession to an impartible zamindari in Tinnevelly. One side relied on a special family custom of succession. The Privy Council said that special usages which change the ordinary law of succession must be ancient and invariable. They must be established by clear and unambiguous evidence. The custom pleaded was not proved, so the ordinary law applied.
This is the leading statement of the standard of proof. A court respects custom, but only custom that is clearly shown to exist.
Saraswathi Ammal v. Jagadambal, AIR 1953 SC 201. A woman of the dasi community in Tanjore district died leaving three daughters. One daughter claimed that by custom only the unmarried daughter who had been initiated as a dasi could inherit. The Supreme Court held that the custom was not proved. Special customs require strict proof. In the absence of proof, the court applied the rule of nearness of relationship as justice, equity and good conscience. So all the daughters took equally.
The case shows two sources working together. Custom failed for want of proof, and the court then fell back on justice, equity and good conscience.
The effect of custom against the texts
Custom ranks last in the classical list, but a proved custom overrides the written texts. This is the most important point about custom.
Collector of Madura v. Moottoo Ramalinga Sathupathy, (1868) 12 MIA 397, the Ramnad case. The Zamindar of Ramnad died without a son. His widow adopted a boy with the consent of her husband's sapindas, though her husband had not authorised it. The adoption was challenged. The Privy Council upheld it under the Dravida school. It also laid down a famous rule. Under the Hindu system of law, "clear proof of usage will outweigh the written text of the law".
So where a text and a proved custom conflict, the custom prevails. That is why custom is called the most powerful source in practice.
The effect of custom against statute, and where the Acts keep it alive
The codifying Acts reversed the position for the matters they cover. Section 4 of the Hindu Marriage Act and section 4 of the Hindu Succession Act give the Acts overriding effect. On any matter for which the Act makes provision, the old texts and rules cease to have effect. So does any custom or usage. This is subject to the words "save as otherwise expressly provided". So a statute now prevails over custom.
But the Acts expressly save custom in important places.
- Prohibited relationship and sapinda marriage. Sections 5(iv) and 5(v) of the Hindu Marriage Act allow such a marriage if the custom governing each party permits it. In many communities of south India, a man may by custom marry his maternal uncle's daughter or his sister's daughter. Such a marriage is valid where the custom is proved.
- Ceremonies. Section 7 lets a marriage be solemnized by the customary rites of either party.
- Customary divorce. Section 29(2) saves any right to obtain a divorce recognised by custom.
- Adoption. Section 10 of the Hindu Adoptions and Maintenance Act allows a married person, or a person over fifteen, to be adopted. This is allowed only where a custom applicable to the parties permits it.
- Scheduled Tribes. The Acts do not apply to members of Scheduled Tribes unless notified, so customary law still governs them.
The Hindu Succession Act, by contrast, saves no custom on the matters it covers. Succession is now almost entirely statutory.
The limits of custom
Custom is powerful, but it has clear limits. It must be proved, and courts are slow to find it. It cannot stand against an express statute, so its field has shrunk since 1955. It must be reasonable and moral, so a custom that offends public policy fails however old it is. Many writers welcome this, because some old customs discriminated against women. Others note that custom still protects diversity among communities and tribes.
Conclusion. Hindu law grew from Sruti, Smriti, the commentaries and custom, and today from equity, precedent and, above all, legislation. Of the ancient sources, custom is the strongest in practice. A custom may be ancient, continuous, certain and reasonable, and not opposed to public policy or statute. If it is also strictly proved, it prevails over the written texts, as Collector of Madura held. Since the codifying Acts, statute prevails over custom, but the Acts themselves keep custom alive for marriage within prohibited degrees, ceremonies, customary divorce and adoption.
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