Report No. 59

Significance of the Hindu Code

1.3. The Hindu Marriage Act, with which the present inquiry is concerned, was passed by Parliament in 1955. It forms part of a larger legislative effort to codify the personal law of the Hindus. It was followed by the Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956; and the Hindu Adoptions and Maintenance Act, 1956. Originally, Parliament intended to pass one Act comprehensively described as 'Hindu Code', but, later, the original Code was split up into four different Acts, which were passed one after the other; these four Acts, in substance, constitute the Hindu Code. In adopting these four legislative measures, Parliament has acted upon the principle formulated by Dr. Radhakrishnan that "to survive, we need a revolution in our thoughts and outlook". From the alter of the past we should take the living fire and not the dead ashes. Let us remember the past, be alive to the present, and create the future with courage in our hearts and faith in ourselves."1

1. Gunnar Myrdal, Asian Drama, Romesh Tapar Wiffle Woffle in High Places, The Economic Weekly, November 4, 1961, p. 1683.

1.4. When it was announced that Parliament intended to pass the Hindu Code making radical changes, where necessary, in the personal law of the Hindus, traditional and conservative Hindu opinion resisted the idea, because it thought that, by the proposal to enact a Hindu Code, Parliament was invading the area of Hindu religion and was changing Hindu Law which was "Sanatana", that is to say, which had not undergone any change and had remained as it was handed down by the Srutis and the Smritis.

The opposition thus expressed by traditional conservative Hindu opinion was met by the progressives' plea that personal law is essentially secular in character, and cannot be treated as a part of Hindu religion properly so called. Reformers also urged that Hindu Law was never "Sanatana" or static and had undergone changes from time to time. Before the Bill was introduced in Parliament and during all stages of its progress in the form of four different Acts, there ensued a national debate; and that was as it should be under any democratic legislative process.

Parliament ultimately upheld the point of view strongly expressed by social reforms and proceeded to pass the four Bills in question on two fundamental assumptions; the first assumption was that personal law in the case of citizens of this country cannot be treated as part of their religion properly so called; and secondly, that the history of the development of Hindu Law shows that it was never static and had changed from time to time so as to meet the challenge of changing requirements of different regions and different times.

1.5. It would not be out of place to point out, with respect, that both these assumptions are well founded. If we examine the sources of Hindu Law, it would be noticed that custom is one of its important sources. According to Yajnavalkya1, Srutis and Smritis or the conduct of good people or good conduct constitute, inter alia, the sources on which the Hindu Law is founded.

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1.6. It is obvious that, in different regions, different customs prevailed, and in the same region, from time to time, customs in regard to matters covered by the provisions of law were likely to change. Thus, by assigning to changing customs the status of a source of law, the text has provided an inbuilt source of changes in law as and when they would become necessary.

One distinguishing feature of the development of Hindu Law throughout the ages has been the remarkable part played by eminent commentators of the texts of Smritis. Amongst these commentators, Vijnaneswara, occupies a pride of place. Scholars of Hindu Law have justly paid a rich tribute to the work of these Hindu jurists in sustaining the living character of Hindu Law by making necessary adjustments in its provisions from time to time on the basis of rational rules of interpretation.

1.7. In this connection, the first consideration which is relevant is that the Hindu Law, as it was applied until the present Acts were passed, was divided into two schools; one the Mitakshara and the other the Dayabhaga. The Mitakshara school, in turn, was divided into four sub-schools, th6 Benares, the Mithila, the Maharashtra and the Dravida. Broadly stated, the Mitakshara school adopted the interpretation placed by Vijnaneswara on the relevant provisions of the text of Yajnavalkya; while the Dayabhaga school, which prevailed in Bengal, adopted the view expressed by Jimutavahana.

There is general consensus that both these distinguished jurists thrived in the twelfth century. In regard to the sub-schools of the Mitakshara school, however, each one of them followed the interpretation placed on the same Smriti texts by different commentators who lived in the areas governed by the said sub-schools. It will thus be seen that, though the texts on which Hindu Law was founded in a primary sense were the same, different interpretations placed on the said texts by different commentators gave rise to different schools which are recognised in the respective areas.

That itself is an illustration of the significant part played by the commentators in the development of Hindu Law. The texts were the same; but, by adopting rational and highly developed rules of interpretation, the commentators brought the letter of the texts in conformity with the customs prevailing in their localities and the beliefs and faith of the people in the locality. That explains the existence of these different schools of Hindu Law.

1.8. We would like to illustrate our thesis by referring to two provisions of Hindu Law as interpreted by the commentators. The first relates to the broad and progressive concept of women's property evolved by Vijnaneswara. It is well-known that, until the Married Women's Right to Property Act was passed in England1 in 1882, the position of English married women in relation to their rights to property was in a very unsatisfactory condition. Consider, by way of contrast, how Vijnaneswara defines 'Stridhana'. Incidentally, it may be pointed out that the property, which is technically described as 'Stridhana', is property of which the woman is an absolute owner, over which she has full disposing power, and in relation to which there is a special line of succession.

Says Vijnaneswara:

"That which was given by the father, by the mother, by the husband, or by a brother: and that which was presented by the maternal uncles and the rest at the time of wedding before the nuptial fire; and a gift on a second marriage or gratuity on account of supersession and, as indicated by the word 'adya' (and the rest), property obtained by:-

(1) inheritance;

(2) purchase;

(3) partition:

(4) seizure, e.g., adverse possession;

(5) finding;

and this is stridhana, according to Manu and the rest."

It is significant that, whereas the first part of the definition given by Vijnaneswara reproduces the definition of 'stridhana' which is given by Yajnavalkya, the second part is the expansion made by Vijnaneswara basing himself on the word 'adya' which occurs in Yajnavalkya's definition of stridhana. By this juristic effort to widen the scope of "stridhana", Vijnaneswara included in the concept of stridhana not only the properties which were so treated by Yajnavalkya, but also five additional distinct kinds of property which were not regarded as "stridhana" by the early sages.

1.9. In this connection, it is interesting to refer to the observations made by the High Court of Madras in Salemma v. Lutchmana, 1898 ILR 21 Mad 100 (103, 104).

"It is scarcely necessary to say that Vijnaneswara's statement that 'stridhana' is not to be understood in a technical sense (Mitakshara, Chapter 2, section 11, para. 3) was not mere philological observation. By laying down that proposition, Vijnaneswara and other great commentators, who followed him, succeeded in effecting a beneficial change in the archaic Smriti law and placed women almost on a footing of equality with men as regards the capacity to hold property."

Unfortunately, the explanation made by Vijnaneswara in regard to the scope of the word "stridhana" went by the board as a result of the decision of the Privy Council in Debi Mangal Prasad v. Mahadeo Prasad, 39 IA 21 (PC).

1.10. The second example relates to a part of the law of adoption. The power of the woman to give or take a boy in adoption is based on the text of Vasistha.1 Says Vasistha:

"Let not a woman give or take a boy in adoption without the consent of her husband."

This text appears to be simple in its terms and clear in its meaning; and yet, different commentators, who lived in different regions, interpreted it in different ways. One view was that a widow cannot take or give a boy in adoption, because the consent of the husband in her case is impossible. Another view was that this prohibition is inapplicable to a widow, unless it is shown that her husband had expressly prohibited her from taking or giving a boy in adoption before his death. The third view was that a widow can give or take a boy in adoption if she secures the consent of the manager of the family. There were other finer shades of interpretation which it is unnecessary to set out.

1.11. These two illustrations emphasise the point that Hindu Law developed and changed to meet the requirements of changing times or of usages prevailing in different regions of the country by virtue of the very wise contribution of Hindu jurists in that process. Therefore, the conclusion is irresistible that Parliament was right in assuming that Hindu Law was never static; it was dynamic and was changing from time to time. The object of law, whether personal or public, must be to sustain the stability of the society and help its progress:-

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The structure of any society, which wants to be strong, homogeneous and progressive, must, no doubt, be steady but not static; stable but not stationary; and that is exactly the picture we get if we study the development of Hindu Law carefully before the British rule began in India.

1.12. When the British came on the scene, two constraints were imposed on this healthy course of development of Hindu Law. The first was imposed by the decision of the Privy Council in the case of Collector of Madura v. Mootto Ramalinga, (1868) 12 MIA 397 (436) (PC). In that case, the Privy Council laid down a clear and unambiguous direction to the Judge administering Hindu Law in India. The Privy Council held:

"The duty therefore of an European Judge who is under the obligation to administer Hindu Law, is not so much to inquire, whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal and there has been sanctioned by usage. For, under the Hindu system of law, clear proof of usage outweigh the written test of the law."

1.13. It is necessary to remember that judicial decisions made it very difficult, if not impossible, to prove the existence of any new custom because courts do not recognise the validity of any custom unless it was proved to be "ancient, certain and reasonable."1 A spirit of inquiry and an attempt to interpret the texts to adjust law to changing requirements were thus completely stalled; and that justified the observation made by Mayne in the first edition of his book on Hindu Law and Usage2 published in the seventies of the last century that under "the British rule, Hindu Law "was in a state of arrested progress in which no voices were heard unless they came from the tomb."

1. Hurpurshad v. Sheo Dyal, (1876) 3 IA 29 (285).

2. Mayne Hindu Law, 1st Edn.

1.14. The other constraint, which stalled the progress of Hindu Law during the British regime, flowed from purely political considerations. As a foreign power ruling over a very large country, it was the declared policy of the British not to interfere with the customs, faiths and beliefs of the population over which it ruled and, naturally, the British Government frowned upon any effort to make radical changes in the provisions of the Hindu Law, though Hindu reformers were agitating for such changes from time to time. No doubt, some laws were passed to meet the demand of social reform; but the efforts for charges in personal law were never positively encouraged and the steps taken in that direction were slow, halting and reluctant. That is how the growth of Hindu Law was arrested during the whole of the British period in the history of India.

When we became free and the Indian Parliament which was sovereign, began to function, the age of commentators came to a close and that of legislators commenced. Naturally, one of the first tasks to which Parliament addressed itself was to change Hindu Law with a view to modernising its provisions and, wherever necessary, to effecting changes on the basis of social justice. The task of rationalising and modernising Hindu Law was a challenging task and, as we have already pointed out, it led to a national debate and, in consequence of the heat generated by the debate, the attempt to introduce one comprehensive Code at one stretch had to be given up, and the task was accomplished by introducing four different Bills.

1.15. The significance of the Hindu Code at its revolutionary character lies in the fact that, by passing the four Acts pertaining to the personal law governing the Hindus, Parliament has emphasised that personal law is a social and secular matter and not a part of religion properly so-called. These four Acts thus constitute the first decisive step in implementing the important Directive Principle enshrined in Article 44 of the Constitution. That, in our view, is the real significance of the four Acts of which Hindu Marriage Act was the first to be enacted.