The Sources and the Schools of Hindu Law

Custom

Custom is the fourth source and the practically most powerful. A valid custom prevails over the smriti and the commentaries, which is the exception to the ranking above.

Custom is not abolished by the codifying Acts, because they invite it back in. Section 3(a) of the Hindu Marriage Act puts the classical requirements into statutory form: a rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in a local area, tribe, community, group or family, provided it is certain and not unreasonable or opposed to public policy, and provided a family custom has not been discontinued by the family.

Sections 5(iv), 5(v) and 7 of that Act then let custom decide who may marry whom and by what ceremony. So custom is not a historical curiosity in this subject; it is a live defence.

Customs are usually classified as local (obtaining in a particular area), class or caste (obtaining among a community wherever it lives), and family (obtaining in one family). The classification matters because the burden of proving a family custom is heavier and it can be lost by discontinuance.

The modern sources

To the four classical sources, three modern ones are always added: legislation, which is now the largest source by far; judicial precedent, which the classical system did not recognise and the British courts introduced; and justice, equity and good conscience, the residual source a court falls back on where nothing else supplies a rule.

The two schools

Why there are schools at all

There was never a Hindu law that differed by belief. What differed was which commentary a region's courts treated as authoritative. Because the commentaries read the same smritis differently, principally on when a son acquires an interest in family property, two systems grew up.

Dayabhaga prevailed in Bengal and Assam. Mitakshara prevailed everywhere else.

The difference that matters

Everything else follows from one point.

Under Mitakshara, a son acquires an interest in the ancestral property by birth. The father and his three generations of male descendants hold it together; nobody owns a defined share; the shares fluctuate as members are born and die; and on a coparcener's death his interest passes by survivorship to the others rather than to his heirs.

Under Dayabhaga, nobody acquires an interest by birth. The sons take only on the father's death. During his lifetime the father is the absolute owner and may deal with the property as he likes. Each heir then takes a defined share, which he may dispose of, and on his death that share passes to his own heirs. There is no survivorship.

Two consequences worth stating in an answer. Under Dayabhaga a coparcener may sell or will away his share, and under Mitakshara he classically could not. And under Dayabhaga a widow could succeed to her husband's share in the family property, which under Mitakshara she could not, because survivorship carried it to the other coparceners.

What is left of the difference

Section 6 of the Hindu Succession Act, as substituted in 2005, has narrowed the gap considerably. Survivorship in a Mitakshara coparcenary has been displaced for the purpose of devolution, daughters are coparceners by birth, and the pious obligation of the son has been abolished for debts contracted after the amendment. The schools remain, but a great deal of what distinguished them is now statute. Module III takes this in detail.

Unobstructed and obstructed heritage

MU asks for these by name, in Sanskrit, so learn both words. They are a Mitakshara distinction.

Apratibandha daya, unobstructed heritage, is property in which a person acquires an interest by birth, because of his relationship to the last owner. Property inherited by a Hindu male from his father, father's father or father's father's father is unobstructed heritage in the hands of his own sons: their right arises at birth and nothing obstructs it.

Sapratibandha daya, obstructed heritage, is property in which a person acquires an interest only on the death of the last owner. Property inherited from anyone other than those three direct male ancestors, from a maternal uncle or a brother for instance, is obstructed heritage: the existence of the owner is itself the obstruction, and until he dies nobody has a right.

The neat way to hold it: unobstructed heritage is obstructed by nothing, and obstructed heritage is obstructed by the owner staying alive.

The sub-schools of Mitakshara

Because Mitakshara covered the whole country outside Bengal, regional differences developed, and the Mitakshara school is conventionally divided into sub-schools.

Textbooks differ on how many, and this book says so rather than pretending otherwise. The division most often given is fourfold: Benares, Mithila, Maharashtra (also called Bombay), and Dravida (also called Madras). Many Indian textbooks add Punjab as a fifth, on the footing that its law was governed principally by custom. Any answer that names the four and adds that Punjab is often counted as a fifth is safe.

The differences between sub-schools were never differences of principle. They concerned matters such as the order of heirs and the extent of a woman's rights, and they have largely been superseded by the Hindu Succession Act.

The doctrine of factum valet

MU asks for this with an example, so the example is given.

The maxim is factum valet quod fieri non debuit: a fact which ought not to have been done is nevertheless valid. It entered Hindu law through the authors of the Dayabhaga and was accepted by the followers of the Mitakshara as well.

What it means. Where a text prescribes how something is to be done but attaches no penalty and does not declare a breach void, an act done in breach of it is nonetheless valid once it is complete. The doctrine cures a directory irregularity. It does not cure a breach of a mandatory rule, and it cannot validate what a text expressly forbids or declares void.

The example. The classic one is marriage. Where the classical texts required the bride to be given in marriage by a particular guardian in a particular order of preference, and she was in fact given by another, the marriage once solemnized was held good: the fact accomplished prevailed over the rule about who should have accomplished it. The same reasoning was applied where a formality of the ceremony had been omitted, provided the essential ceremonies were performed.

Its limit, and this is what an examiner is testing. Factum valet cannot validate a marriage that the law makes void. A marriage in breach of section 5(i), 5(iv) or 5(v) of the Hindu Marriage Act is null under section 11, and no accomplished fact saves it. The doctrine cures irregularity, not illegality, and a student who writes that factum valet validates any completed marriage has gone wrong.

Sapinda relationship

The word means those connected by pinda, the funeral rice-ball offered to ancestors, and the classical idea was of the group of relations connected through offerings to common ancestors. In the classical law the rule extended further than it now does, and the two schools measured it differently.

The statute has replaced the classical measurement entirely, and it is the statutory version that must be written. Section 3(f) of the Hindu Marriage Act extends sapinda relationship as far as the third generation inclusive in the line of ascent through the mother, and the fifth inclusive through the father, counting the person concerned as the first generation. Two persons are sapindas if one is a lineal ascendant of the other within those limits, or if they have a common lineal ascendant within those limits with reference to each of them.

Section 5(v) makes a marriage between sapindas void unless the custom governing each of them permits it, and by the Explanation to section 3 the relationship includes half and uterine blood, illegitimate relationship and relationship by adoption.

A worked example

A family in Nashik follows a custom by which a man may marry his mother's brother's daughter. Another family in Kolkata disputes whether a son may demand partition against his living father. A third asks whether a marriage celebrated in breach of a directory rule can be upset years later.

The Nashik custom. Custom is a source of Hindu law, and in practice it prevails over the smriti texts where it is proved. Under the Hindu Marriage Act it must satisfy section 3(a): continuously and uniformly observed for a long time, certain, not unreasonable, and not opposed to public policy; and section 5(v) lets it override the sapinda bar.

The Kolkata question. It is a question of school. Dayabhaga, the commentary of Jimutavahana, applies in Bengal and Assam, and under it no right arises by birth, so a son cannot demand partition against his living father. Mitakshara, Vijnaneswara's commentary on the Yajnavalkya Smriti, applies everywhere else, and under it he can.

The third question. That is factum valet: quod fieri non debuit factum valet, what ought not to be done becomes valid when done. It validates an accomplished fact against a merely directory rule, and it can never validate what the law makes void.

Where do the sources rank? Sruti, then smriti, then commentaries and digests, then custom, with custom prevailing in practice; and today legislation, precedent and equity, justice and good conscience besides.

What are the sub-schools? Of Mitakshara: Banaras, Mithila, Dravida or Madras, and Maharashtra or Bombay, with Punjab counted as a fifth by some.

And the two kinds of heritage? Unobstructed heritage, apratibandha daya, vests by birth; obstructed heritage, sapratibandha daya, vests only on the death of the owner.

What it does NOT mean

The classical ranking is not the practical ranking. Sruti ranks first in theory; custom prevails in practice where it is proved.

Custom is not any usage. It must be ancient, certain, reasonable, continuous and not opposed to public policy.

The two schools are not two religions. They are two commentaries, and the difference that matters is the right by birth and survivorship.

Factum valet does not cure a void act. It applies to a directory rule only.

Unobstructed heritage is not inherited property generally. It is property in which the right vests by birth.

A sub-school is not a separate law. It is a variation within Mitakshara.

Sapinda is no longer the classical circle. It is whatever section 3(f) of the Hindu Marriage Act defines.

Quick revision

• Sources, classically: sruti, smriti, commentaries and digests, custom; in practice custom prevails. Today also legislation, precedent, and equity, justice and good conscience.
• Custom under s.3(a) of the Hindu Marriage Act: continuously and uniformly observed for a long time, certain, not unreasonable, not opposed to public policy, and, for a family custom, not discontinued.
• The two schools: Mitakshara, Vijnaneswara on the Yajnavalkya Smriti, everywhere but Bengal and Assam; Dayabhaga, Jimutavahana, in Bengal and Assam. Mitakshara has the right by birth and survivorship; Dayabhaga has neither.
• Sub-schools of Mitakshara: Banaras, Mithila, Dravida (Madras), Maharashtra (Bombay), and Punjab as a fifth on some counts.
• Heritage: unobstructed (apratibandha daya) vests by birth; obstructed (sapratibandha daya) vests on the owner's death.
• Factum valet: quod fieri non debuit factum valet; it validates an accomplished fact against a directory rule, never against a void one.
• Sapinda: now defined by s.3(f).

Test yourself

1. Name the sources of Hindu law and say which prevails. Sruti, smriti, the commentaries and digests, and custom, with legislation, precedent and equity, justice and good conscience added by the modern law. In practice a proved custom prevails over the texts.

2. What must be shown to establish a custom? Under section 3(a) of the Hindu Marriage Act, that the rule has been continuously and uniformly observed for a long time and has obtained the force of law among Hindus in any local area, tribe, community, group or family; that it is certain; that it is not unreasonable or opposed to public policy; and, in the case of a family rule, that it has not been discontinued by the family.

3. What is the difference between the two schools? Under the Mitakshara, the commentary of Vijnaneswara on the Yajnavalkya Smriti, a son takes an interest in the coparcenary property by birth and the interest passes by survivorship. Under the Dayabhaga of Jimutavahana, applicable in Bengal and Assam, no right arises by birth, the father is the absolute owner, and the interest passes by succession.

4. What is the doctrine of factum valet? Quod fieri non debuit factum valet: what ought not to be done becomes valid when done. An act done in breach of a directory rule of Hindu law is not invalidated by the breach; but the doctrine cannot validate an act that the law declares void.