Modern Hindu law is one of the personal law systems of India along with similar systems for Muslims, Sikhs, Parsis, and Christians. This Hindu Personal Law or modern Hindu law is an extension of the Anglo-Hindu Law developed during the British colonial period in India, which is in turn related to the less well-defined tradition of Classical Hindu Law. The time frame of this period of Hindu law begins with the formal independence of India from Great Britain on August 14, 1947, and extends up until the present. While modern Hindu law is heralded for its inherent respect for religious doctrines, many still complain that discrimination (especially with the historical tradition of the caste system) still pervades the legal system, though efforts to modernize and increase the legal rights of the marginalized have been made (most notably with the passage of the Hindu Code Bills and the establishment of notable legal precedents).
With the formal independence of India from Great Britain on August 15, 1947, India acquired a new constitution as well as a complex legal system. While a Western influence is apparent in this system, it is not an exact replication. The Indian legal system has characteristics of common law, but is codified and thus is actually more similar to civil law in nature. The modern Hindu legal system is applied to strictly personal law, including issues of marriage, inheritance and adoption, whereas India's secular legal system is applied to issues of criminal law and civil law.
India's first prime minister, Jawaharlal Nehru, and the then law minister, Dr. Babasaheb Ambedkar, worked to unify the newly independent India by proposing the reformation and codification of Hindu personal law. Nehru's efforts led to contentious debates over the so-called Hindu Code Bill, which he offered in the Indian parliament, as a way to fix still unclear elements of the Anglo-Hindu law. The Hindu Code Bill was initially and continues to be very controversial within and outside of the Hindu community. Criticism of the document is based on the belief that the laws in the Hindu Code bill should apply to all citizens regardless of religious affiliation. [1] Though a small minority suggested some kind of return to classical Hindu law, the real debate was over how to appropriate the Anglo-Hindu law.
Nehru completed codification and partial reform, but overall the legal system only slightly changed. In the end, a series of four major pieces of personal law legislation were passed in 1955-56 and these laws form the first point of reference for modern Hindu law: Hindu Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act (1956), and Hindu Adoptions and Maintenance Act (1956). Though these legislative moves purported to resolve still unclear parts of the Anglo-Hindu law, the case law and interpretive tradition of British judges and Indian judges in the British employ remained and remains crucial to the application of modern Hindu law.
As stated by Article 44 of the Indian Constitution, India is a secular state that strives towards legal uniformity. Many argue that the commitment of the Indian government towards this gradual uniformity of the legal system threatens the minority religious groups that utilize the plurality of the law to maintain traditions and implement their religious laws.
Before discussing the modern application and sources of Hindu law it is important to outline whom these laws govern. In the case of Hindu personal and family laws, as outlined by the Acts of Parliament discussed below, those that are followers the Hindu religion, as well as those who are not Christian, Jewish or Muslim, are held accountable to these laws. [2] Therefore, it is assumed that all Indians who are not Muslim, Jewish or Christian are Hindu, disregarding personal religious laws of followers of Buddhist, Jain, Sikh and other religions, creating controversy within these communities. The Indian legal system does recognize Muslim, Jewish and Christian family courts as well as secular family courts.
Sources of Classical Hindu law arose from the religious texts of the Dharmaśāstra , as well as āćāra or customs, and commentaries or digests that translated and interpreted the laws. Since British colonial rule, India has codified several aspects of the Hindu tradition into the Indian legal system as well as adopted common and civil legal procedures. [2]
Legislation, as created and implemented by the Indian government, is the strongest source of law in all Indian courts. In the case of two conflicting sources, legislation holds the highest jurisdiction. [2] While it is not a traditional source of law for the Hindu legal system, it is the latest and most legitimate form.
During colonial rule, the British codified several aspects of the Hindu legal tradition into the Indian legal system, based upon the large number of Hindus residing in British India. Thus upon gaining independence, many of the same laws that governed the country during colonial rule were maintained as such, making the Indian Constitution and legal system heavily influenced with Hindu legal traditions at its foundation. [3]
India is based on the British common legal system, thus the courts rely heavily on stare decisis , or precedent, when deciding cases. Any case decision made by a higher court is a source of law to all of the lower courts, in the prospect that the laws will be applied in a similar manner. The Hindu family courts are expected to follow laws handed down from previous cases.
Modern Hindu law relies on the interpretation of judges and their ability to decipher mitigating factors within each legal situation. [3] This is reflective of the ancient Hindu legal tradition of working out problems on a case specific basis in finding justice in each specific instance.
As is the case with many global legal systems that rely on precedents as a source of law, certain cases stand out that have shaped the Indian legal system into what it is today. Not only do they provide the foundation for future legal cases but they also make a statement about the state of the country and what direction it wants to lead. One such case came about during the efforts of modernization reforms in India. Known as the Medical Termination of Pregnancy Act (1971), the law allowed Indian women to legally obtain abortions. Thus this law made not only a religious statement, as India was trying to become more secular, but also made a statement of equality as it expanded the rights women had.[ citation needed ]
Early in December 2008, a marriage between a Hindu and a Christian was deemed invalid under the Hindu Marriage Act (1955) as the Act provides for only Hindu couples to enter into a wedlock, the Supreme Court has ruled. [4] Allegedly, Raj had misinformed his wife about his social status and she filed for divorce. He claimed that the Hindu Marriage Act does not preclude a Hindu from marrying a person of another faith. Dismissing the Christian husband’s appeal, the apex court upheld the High Courts’s view that the marriage not valid under the Hindu Marriage Act, specifically pointing to the fact that Section 5 of the Act makes it clear that a marriage may be solemnized between any two Hindus if the conditions in the said Section were fulfilled. [4]
Following independence, the Indian government led by Jawaharlal Nehru & Law Minister Dr. B. R. Ambedkar completed the codification and reform of Hindu personal law, a process that had been begun by the British. According to the British policy of noninterference, reform of personal law should have arisen from a demand from the Hindu community. This was not the case, as there was significant opposition from various Hindu politicians, organizations, and devotees who saw themselves unjustly singled out as the sole religious community whose laws were to be reformed. [5] However, the administration saw such codification as necessary in order to unify the Hindu community, which ideally would be a first step towards unifying the nation. [6] They succeeded in passing four Hindu Code Bills, including Hindu Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act (1956), and Hindu Adoptions and Maintenance Act (1956). [7]
Nehru and his supporters insisted that the Hindu community, which comprised 80% of the Indian population, first needed to be united before any actions were taken to unify the rest of India. Therefore, the codification of Hindu personal law became a symbolic beginning on the road to establishing the Indian national identity. [6] Nehru also felt that because he was Hindu, it was his prerogative to codify specifically Hindu law, as opposed to Muslim or Jewish law. [8]
Those in Parliament who supported the Bills also saw them as a vital move towards the modernization of Hindu society, as they would clearly delineate secular laws from religious law. Many also heralded the Bill’s opportunity to implement greater rights for women, establishing that such rights were necessary for India’s development. [9]
The Hindu Code Bills are still controversial among some communities, including women's, nationalist, and religious groups. At the time of their creation, many portrayed them as a serious deviation from Hindu legal precedent. However, now many, including Nivedita Menon, argue that it is "misleading...to claim that Hindu personal law was reformed [in the 1950s]. It was merely codified, and even that was in the face of stiff resistance from Congress leaders." [10]
There are no religious courts in India, as it is a secular nation. Rather religious personal laws are adjudicated by the state on a case by case basis.
The court system of India is essentially divided into three tiers, the Supreme Court of India at the apex of the hierarchy for the entire country, twenty-one High Courts at the top of the hierarchy in each State, and subsequent district courts that govern family, criminal and civil laws within the states. The High Courts have jurisdiction over a state, a union territory or a group of states and union territories. District courts are the courts of first resort. It is within the district courts that Hindu law and other religious laws are administered. State judges apply Hindu law on a case by case basis.
The judges that preside over the district courts in India are state bureaucrats, not religious priests or scholars. Thus it is possible for a Hindu judge to preside over a divorce case between a Muslim couple or for a Christian judge to preside over a case involving a Hindu family. With no formal education on the religious laws of the state, judges may not be well versed in the laws they are to adjudicate. They rely heavily on case precedent and scholarly works to guide them through the cases. [11]
Lawyers in India are trained in general law schools and receive no formal and specific training on Hindu law, Muslim law, or any other personal religious laws. All lawyers are however required to take courses regarding personal law. These larger courses touch on the variety of personal laws that exist in India, including Hindu Law.
Religious law includes ethical and moral codes taught by religious traditions. Different religious systems hold sacred law in a greater or lesser degree of importance to their belief systems, with some being explicitly antinomian whereas others are nomistic or "legalistic" in nature. In particular, religions such as Judaism, Islam and the Baháʼí Faith teach the need for revealed positive law for both state and society, whereas other religions such as Christianity generally reject the idea that this is necessary or desirable and instead emphasise the eternal moral precepts of divine law over the civil, ceremonial or judicial aspects, which may have been annulled as in theologies of grace over law.
Legal history or the history of law is the study of how law has evolved and why it has changed. Legal history is closely connected to the development of civilisations and operates in the wider context of social history. Certain jurists and historians of legal process have seen legal history as the recording of the evolution of laws and the technical explanation of how these laws have evolved with the view of better understanding the origins of various legal concepts; some consider legal history a branch of intellectual history. Twentieth-century historians viewed legal history in a more contextualised manner – more in line with the thinking of social historians. They have looked at legal institutions as complex systems of rules, players and symbols and have seen these elements interact with society to change, adapt, resist or promote certain aspects of civil society. Such legal historians have tended to analyse case histories from the parameters of social-science inquiry, using statistical methods, analysing class distinctions among litigants, petitioners and other players in various legal processes. By analyzing case outcomes, transaction costs, and numbers of settled cases, they have begun an analysis of legal institutions, practices, procedures and briefs that gives a more complex picture of law and society than the study of jurisprudence, case law and civil codes can achieve.
The Uniform Civil Code is a proposal in India to formulate and implement personal laws of citizens which apply on all citizens equally regardless of their religion. Currently, personal laws of various communities are governed by their religious scriptures. Personal laws cover marriage, divorce, inheritance, adoption and maintenance. While articles 25-28 of the Indian Constitution guarantee religious freedom to Indian citizens and allow religious groups to maintain their own affairs, article 44 expects the Indian state to apply directive principles and common law for all Indian citizens while formulating national policies.
Mohd. Ahmad Khan v. Shah Bano Begum [1985], commonly referred to as the Shah Bano case, was a controversial maintenance lawsuit in India, in which the Supreme Court delivered a judgment favouring maintenance given to an aggrieved divorced Muslim woman. Then the Congress government enacted a law with its most controversial aspect being the right to maintenance for the period of iddat after the divorce, and shifting the onus of maintaining her to her relatives or the Waqf Board. It was seen as discriminatory as it denied right to basic maintenance available to Muslim women under secular law.
The legal system of India consists of civil law, common law, customary law, religious law and corporate law within the legal framework inherited from the colonial era and various legislation first introduced by the British are still in effect in modified forms today. Since the drafting of the Indian Constitution, Indian laws also adhere to the United Nations guidelines on human rights law and the environmental law. Personal law is fairly complex, with each religion adhering to its own specific laws. In most states, registering of marriages and divorces is not compulsory. Separate laws govern Hindus including Sikhs, Jains and Buddhist, Muslims, Christians, and followers of other religions. The exception to this rule is in the state of Goa, where a uniform civil code is in place, in which all religions have a common law regarding marriages, divorces, and adoption. On February 7, 2024, the Indian state of Uttarakhand also incorporated a uniform civil code. In the first major reformist judgment for the 2010s, the Supreme Court of India banned the Islamic practice of "Triple Talaq". The landmark Supreme Court of India judgment was welcomed by women's rights activists across India.
Hindu law, as a historical term, refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British India. Hindu law, in modern scholarship, also refers to the legal theory, jurisprudence and philosophical reflections on the nature of law discovered in ancient and medieval era Indian texts. It is one of the oldest known jurisprudence theories in the world and began three thousand years ago whose original sources were the Hindu texts.
India since its independence in 1947 has been a secular state. The secular values were enshrined in the constitution of India. India's first prime minister Jawaharlal Nehru is credited with the formation of the secular republic in the modern history of the country. With the Forty-second Amendment of the Constitution of India enacted in 1976, the Preamble to the Constitution asserted that India is a secular nation. However, the Supreme Court of India in the 1994 case S. R. Bommai v. Union of India established the fact that India was secular since the formation of the republic. The judgement established that there is separation of state and religion. It stated "In matters of State, religion has no place. Any State government which pursues nonsecular on policies or nonsecular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356". Furthermore, constitutionally, state-owned educational institutions are prohibited from imparting religious instructions, and Article 27 of the constitution prohibits using tax-payers money for the promotion of any religion.
The Hindu Minority and Guardianship Act was established in 1956 as part of the Hindu Code Bills. Three other important acts were also created during this time: the Hindu Marriage Act (1955), the Hindu Succession Act (1956), and the Hindu Adoptions and Maintenance Act (1956). All of these acts were put forth under the leadership of Jawaharlal Nehru, and were meant to modernize the prevailing Hindu legal tradition. The Hindu Minority and Guardianship Act of 1956 was meant to enhance the Guardians and Wards Act of 1890, not serve as its replacement. This act specifically serves to define guardianship relationships between adults and minors, as well as between people of all ages and their respective property.
Anglo-Hindu law is the case law that developed in British India, through the interpretation of the Hindu scriptures and customary law in the British courts.
The Hindu code bills were several laws passed in the 1950s that aimed to codify and reform Hindu personal law in India, abolishing religious law in favor of a common law code. The Indian National Congress government led by Prime Minister Jawaharlal Nehru successfully implemented the reforms in 1950s. This process was started during the British rule of India.
The Hindu Marriage Act (HMA) is an act of the Parliament of India enacted in 1955. Three other important acts were also enacted as part of the Hindu Code Bills during this time: the Hindu Succession Act (1956), the Hindu Minority and Guardianship Act (1956), the Hindu Adoptions and Maintenance Act (1956).
Anglo-Hindu law reflected the difference in values between "law" in Western tradition and colonial Hindu tradition. It was not until the 1770s, when the British Empire came to colonize India, that the concept of law came into practice.
India does not recognise same-sex marriage, civil unions or other forms of partnerships, but provides some limited legal recognition to cohabiting same-sex couples in the form of live-in relationships. Several same-sex couples have married in traditional Hindu ceremonies since the late 1980s; however, these marriages are not registered with the state and couples do not enjoy all the same rights and benefits as married opposite-sex couples. The Supreme Court of India in August 2022 provided social security rights to those in same-sex live-in relationships while also recognising same-sex couples as being part of a "family unit".
Hindu personal laws are the laws of the Hindus as they applied during the colonial period of India beginning from the Anglo-Hindu Law to the post-independent Modern Hindu Law. The British found neither a uniform canon administering law for the diverse communities of India nor a Pope or a Shankaracharya whose law or writ applied throughout the country. Due to discrepancies in opinions of pandits on the same matter, the East India Company began training pandits for its own legal service leading to the setting up of a Sanskrit College in Banaras and Calcutta, to help them arrive at a definitive idea of the Indian legal system. It is from here that the Hindu Personal Law had its beginnings; and more appropriately so in 1772, when Warren Hastings appointed ten Brahmin pandits from Bengal to compile a digest of the Hindu scriptural law in four main civil matters—marriage, divorce, inheritance and succession. The Hindu Personal Laws underwent major reforms over a period of time, and created social and political controversies throughout India.
Sharia means Islamic law based on Islamic concepts based from Quran and Hadith. Since the early Islamic states of the eighth and ninth centuries, Sharia always existed alongside other normative systems.
Law in India primarily evolved from customary practices and religious prescriptions in the Indian subcontinent, to the modern well-codified acts and laws based on a constitution in the Republic of India. The various stages of evolution of Indian law is classified as that during the Vedic period, the Islamic period, the British period and post independence.
Triple talaq and talaq-e-mughallazah are now-banned means of Islamic divorce previously available to Muslims in India, especially adherents of Hanafi Sunni Islamic schools of jurisprudence. A Muslim man could legally divorce his wife by proclaiming three times consecutively the word talaq.
All the Muslims in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937. This law deals with marriage, succession, inheritance and charities among Muslims. The Dissolution of Muslim Marriages Act, 1939 deals with the circumstances in which Muslim women can obtain divorce and rights of Muslim women who have been divorced by their husbands and to provide for related matters. These laws are not applicable in the states of Goa, where Goa civil code is applicable for all persons irrespective of religion and state of Uttarakhand. These laws are not applicable to Indians, including Muslims, who married under the Special Marriage Act, 1954.
Anglo-Muhammadan law was a legal system used in the British Empire which combined British and Islamic law.