ACKNOWLEDGEMENT

With profound gratitude and sense of indebtedness I place on record my sincerest thanks to MR

SOURAV AGARWAL, Research Assistant in Law, Indian Institute of Legal Studies, for his

guidance, sound advice and affectionate attitude during the course of the study work.

There is no hesitation in saying that she molded raw clay into whatever we are through his

incessant efforts and keen interest shown throughout the academic pursuit. It is due to his patient

guidance that I have been able to complete the task.

I would also thank the Indian Institute of Legal Studies Library for the wealth of information

therein. I express my regards to the Library staff for cooperating and making available the books

for this project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me throughout the

project work.

Date:

_____________________

ARKAPRAVA BHOWMIK

LL.B (1st Semester) Roll No: 44

 Page|2

TABLE OF CONTENTS

___________________________________________________________

Research Methodology...3 - 4

A. Aims and Objectives..3

B. Statement of Problem...3

C. Research Hypothesis..3

D. Research Questions....4

E. Methodology of Research...4

F. Scope and Limitations....4

G. Review of Literature....4

H. Mode of Citation..4

Table of Cases..5

Chapter 1- Introduction.6

Chapter 2- Restitution of Conjugal Right ..7-9

2.1- Historical Background 7

2.2- Meaning.8-9

Chapter 3 Constitutional Validity of Sec 9 of HMA 1955....10-15

Chapter 4 Judicial Separation 16

Chapter 5 Grounds available for Judicial Separation 17-18

Chapter 6 Conclusion 19

Bibliography 20
 Page|3

RESEARCH METHODOLOGY
___________________________________________________________

A. AIMS AND OBJECTIVES

The aim of this paper is to analyze the core issues related to restitution of conjugal
rights and judicial separation with regards to the Hindu Marriage Act 1955.
Therefore, in this paper the main argument shall be with regard to the
constitutionality of restitution of conjugal rights under the Hindu Marriage
Act(1955) and also regarding Art. 14 and 21 of the constitution. This paper also
deals with the aspect of judicial separation and its distinction from divorce.

B. STATEMENT OF PROBLEM

The current systems do not give an equal chance to access and flourish. Though we have various
Laws /Statutes/Case laws, yet essential things are missed out and very few literates know the
proper meaning and nature of the said project Topic. As such many of us are still in dark as to
what the basic terminologies mean and why was it enacted. Also what is the current status of the
said Topic with respect its implementation.

C. RESEARCH HYPOTHESIS

1. Shruti and Smriti serve as a major source of hindu law.

2. Hindu law has been reformed and modified with the passage of time.

D. RESEARCH QUESTIONS

What are the ancient sources of hindu law?

What are the modern sources of hindu law?

 Page|4

How has legislation and precedents shaped the development of hindu law?

E. METHODOLOGY OF RESEARCH

Methodology implies more than simply the methods the researcher used to collect data. It is
often necessary to include a consideration of the concepts and theories which underlie the
methods. The methodology opted for the study on the topic is Analytical and Doctrinal.
Doctrinal research in law field indicates arranging, ordering and analysis of the legal structure,
legal frame work and case laws by extensive surveying of legal literature but without any field
work.

F. SCOPE AND LIMITATIONS

The scope of the study refers to the parameters under which the study is operating. An extensive
attempt has been made in order to search for the quest with regard to the topic under this paper.
Though there is ample scope to highlight on the principle of good faith and duty of disclosure
according to different Statutes, but the scope of research work is limited to a particular area in
search of answer. Therefore, the researcher confines to the materials which are available and
widely accepted.

G. REVIEW OF LITERATURE
The researcher while writing this project has taken recourse to various primary and secondary
sources. Primary sources would include various laws. Secondary sources would include books
and articles, reports and websites.

H. MODE OF CITATION

A Blue Book system of citation has been adopted throughout the project.
Page|5
CHAPTER - I

Introduction-

Hindu law, as a historical term, refers to the code of laws applied

to Hindus, Buddhists, Jains and Sikhs in British India.[1][2][3] 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.[4] It is one of the oldest known
jurisprudence theories in the world.[4][5] Hindu system of law has the most ancient pedigree of
the known system of law; it is about

6000 years old and passed through various phases. Originally, the sources came to subserve
the needs of pastoral people and now it has come to sub-serve the needs of modern welfare
society. It would be convenient to classify the various sources under the following

two heads

CHAPTER II ANCIENT SOURCES

Ancient or original sources: According to Manu there are four sources of Hindu Law as per
following details, in addition to these four there was also that what is agreeable to ones
conscience such as Shruti, Smriti, Digest and Commentaries, Custom and Usages.

Modern Sources: Following are the modern sources of Hindu Law such as Equity, justice and
good conscience, Precedent, Legislation

1. Sruti:

ADVERTISEMENTS:

Sruti (or Shruti) literally means that which was heard. The Srutis are believed to contain the
very words of God. They are supposed to be the divine utterances to be found in the four
Vedas, (namely the Rig Veda, the Yajur Veda, the Sama Veda and the Atharva Veda), the six
Vedangas (i.e., appendages to the Vedas) and the eighteen Upanishadas. Although the Srutis
are believed to be the ultimate sources of law, in the sense of rules of human conduct, they are
mostly religious in character and one finds very little secular law in the Srutis.

A departure from the vedic principles had brought about several evils in the fabric of Hindu
Law, some of which were removed by legislation. Thus, for instance, the Vedas did not allow
polygamy, but the same became popular in the Hindu community, and it was only in 1955 that
the Hindu Marriage Act put an end to this undesirable practice.

2. Smriti:

Smriti literally means that which was remembered. Both Sruti and Smriti refer to the utterances
and precepts of the Almighty, which have been heard and remembered respectively, and
handed down by the Rishis (sages) from generation to generation. The exact number of Smritis
(or Codes) is not definitely known, but the earliest one seems to be the Manu Smriti. The
principal Smritis are those of Manu, Yajnavalkya and Narada.

As understood by a devout Hindu, law is a branch of Dharma, and its ancient framework is the
law of the Smritis. Traditionally, Dharma is defined as that which is followed by those who are
learned in the Vedas, and what is approved by the conscience of the virtuous who are exempt
from hatred and inordinate affection.

The ancient law, as promulgated in the Smritis, was essentially traditional, and the injunction
was that time-honoured institutions and immemorial customs ought to be preserved intact.
The law was to be found, not only in the text of Smritis, but also in the practices and usages
prevailing there under.

The Smritikars declared and stressed the divine origin and sanction of the rules of Dharma.
Since the law is the king of kings, far more rigid than they, nothing can be mightier than the
law by whose aid, as by that of the highest monarch, even the weak may prevail over the
strong. (Shatapatha Brahmana, XIV)

Although Smritis deal with rules of morality and religion, one finds in them more of secular law,
than in the Srutis. For all practical purposes, the interpretation put on the Smritis by the
commentaries written on the Smritis forms the basis of Hindu Law. Of course, the
Commentaries and Digests, in their turn, are controlled by the decisions of the Courts, which
are ultimately the most fertile sources of Hindu Law.

It may be remembered that if the text of the Smritis conflicts with any of the Vedic texts, the
former is to be disregarded. Where there is a conflict between the Vedas and the Smriti, the
Vedas should prevail. (Vyasa)

The Supreme Court has observed that if there is divergence of opinion among the Smritis, the
court should consult the prevailing practice among the people, while deciding a case. If there is
a clear usage to the contrary, the Smriti must yield to such usage. (Shyam Sunder Prasad Singh
v. State of Bihar, (1980) Supp. S.C.C. 720)
3. Commentaries on the Smritis (Nibandhas):

All the Smritis did not agree with one another in all respects, and this conflict led to several
interpretations put upon them. This, in turn, gave rise to commentaries called Nibandhas.
Nibandhas are thus nothing but the interpretations put on the Smritis by various
commentators. However, it is interesting to note that these commentators did not merely
interpret the Smriti, but they also recited the customs and usages which the commentators
found prevailing around them. In other words, while professing to interpret the law as laid
down in the Smriti, these commentators introduced modifications in order to bring it into
harmony with the current usages.

Despite the fact such commentators have modified the original texts in order to bring them in
line with the local customs and conditions, the commentaries are now considered to be more
authoritative than the original texts themselves.

The reason for this is that although the interpretations of the age-old texts may be inaccurate,
they nevertheless have the sanction to recognise the rules contained in such Nibandhas, the
reason being that under the Hindu system of Law, clear proof of usage will outweigh the
written text of the law. (Collector of Madras v. Moottoo Ramalinga, 12 M.I.A. 397)

In this context, the Allahabad High Court has pointed out that there is a distinction between a
law giver and a commentator. A Code enunciated by the former has the force of law, but the
opinion of a commentator, howsoever valuable for elucidation of the Code, cannot override the
law itself. (Kastoori Devi v. Chiranjit Lai, A.I.R. 1960 All. 446)

The authority of the several commentators varied in different parts of India, giving rise to what
are known as the different schools of Hindu Law. Broadly speaking, there are two Schools, the
Mitakshara School and the Dayabhaga School. The former prevails throughout India, except in
Bengal, where the latter finds a large following. (The Schools of Hindu Law have been discussed
in greater detail later in this Chapter.)

4. Puranas:

The Puranas are also a source of Hindu Law. The Puranas are Codes which illustrate the law by
instances of its application. As observed by the Allahabad High Court in Ganga Sahai v. Lekhraj
(9 All. 253):
Somewhere in the order of precedence, either between the Srutis and the Smritis, or more
probably after them, come the Puranas, which the celebrated author Colebrooke states, are
reckoned as a supplement to the scripture, and as such, constitute a fifth Veda.

CHAPTER III

MODERN SOURCES

5. Judicial Decisions:

After India came under British rule, another element was added to the effective sources of
Hindu Law. The courts had to ascertain and administer the personal law of the Hindus in various
matters such as marriage, adoption, inheritance, and so on. The decisions of the courts, based
on the judicial interpretation of the ancient Hindu texts, began to stake their claim as the most
practical source of Hindu Law.

Strictly speaking, it cannot be said that judicial decisions are a source of law. This is so, because
the Judge is supposed to interpret and explain the existing law, and not to create new law.

Nevertheless, since all the important aspects of Hindu Law have now found their way into Law
Reports, these may now be considered as a source of Hindu Law. Such decisions have played an
important part in ascertaining, and sometimes in developing and crystallizing, Hindu Law.

The commentaries are often silent on several points and the Judges have filled in these blanks
whilst deciding cases coming before them. As a result of the British rule in India, judicial
precedents became necessary and useful guides in the application of Hindu Law. Thus today, no
lawyer will be seen referring to the original texts of Hindu Law, as he would find all his
requirements in the Law Reports.
Commenting on the sources of Hindu law, the Supreme Court has (in Shri Krishna Singh v.
Mathura Ahir, (1981) 3 S.C.C. 689), observed that in applying Hindu law, the Judge should not
introduce his own concepts of modern times, but should enforce the law as derived from
recognised and authoritative sources of Hindu law, i.e., Smritis and commentaries, as
interpreted in the judgments of the various High Courts, except where such law is altered by
any usage or custom, or is modified or abrogated by statute.

Case-law has never formed part of the judicial system of the Hindus, but since the
administration of Hindu Law was taken up by the Courts, judicial decisions have not only
become a source of Hindu Law, but have been the chief agency by which changes have been
effected in that law. The progress that Hindu law has made in the 19th and 20th centuries is
entirely due to the rulings of the Courts. The decisions of these Courts have often superseded
the Commentaries. As precedents, these decisions have a binding force.

As observed by the Mysore High Court, the duty of a Judge administering Hindu Law is not so
much to inquire as to whether a disputed doctrine is fairly deducible from the earliest
authorities, but to ascertain the law as laid down by the superior Courts in India, as well as by
the Privy Council. (Madanvali v. Babu Padmanna Tamadaddi, A.I.R. 1960 Mys. 299)

A full Bench of the Allahabad High Court has, however, warned that it is still not well-settled
that Hindu Law, as administered in India, is not the shastric law, but the law as declared by the
Courts. (Dudh Nath v. Sat Narain, A.I.R. 1966 All. 315)

6. Legislation:

The next source of Hindu Law is legislation. Several enactments had come into force with the
advent of British rule in India, and kept coming with greater gusto after the British departure.
These legislative enactments which declare abrogate or modify the ancient rules of Hindu Law,
thus form an additional modern source of Hindu Law.

The Hindu Law Committee, appointed in 1941, recommended that this branch of the law
should be codified in gradual stages. However, the most important enactments were those
which came in 1955 and 1956, namely the Hindu Marriage Act, the Hindu Minority and
Guardianship Act, the Hindu Succession Act and the Hindu Adoptions and Maintenance Act. (All
these statutes are discussed at length later in this book.)

This process of legislation is a continuous one. Thus, several amendments have been made in
the four principal Acts referred to above. Notable amongst such amendments was the
Amendment passed in 1976, which has radically modified the Hindu Marriage Act, as for
instance, by introducing the concept of divorce by mutual consent in Hindu matrimonial law.
Yet another recent landmark is the amendment of the Hindu Succession Act in 2005, which has
conferred equal rights on a daughter in coparcenary property. Gender inequality in this respect
has now become a thing of the past. The 2005 Amendment has also abolished the doctrine of
pious obligation which was deeply rooted in uncodified Hindu law. (Both these important
amendments have been discussed at length in the relevant Chapters.)

7. Justice, Equity and Good Conscience:

The principles of justice, equity and good conscience may also be regarded as a modern source
of Hindu Law. In the absence of any specific law in the Smriti, or in the event of a conflict
between the Smritis, the principles of justice, equity and good conscience would be applied. In
other words, what would be most fair and equitable in the opinion of the Judge would be done
in a particular case.

As the Supreme Court has observed in Gurunath v. Kamalabai (A.I.R. 1955 S.C. 206), in the
absence of any clear Shastric text, the Courts have the authority to decide cases on principles of
justice, equity and good conscience.

In a case decided before the passing of the Hindu Succession Act, 1956, (Kenchava v.
Girimalappa, (1924) 51 I. A. 368), the Privy Council held that a murderer was disqualified from
succeeding to the property of the victim. Thus, a rule of English law founded on public policy,
was applied to a Hindu on grounds of justice, equity and good conscience. Now, this
disqualification is statutorily recognised in the Hindu Succession Act, 1956.

8. Customs and Usages:

Custom is one of the most important sources of Hindu Law. Where there is a conflict between a
custom and the text of the Smritis, such custom will override the text. As observed earlier,
Under the Hindu system of law, clear proof of usage will outweigh the written text of law.
(Collector of Madura v. Mootoo Ramalinga, 12 M.L.A. 397)

Custom may be defined as a habitual course of conduct generally observed in a community. The
Sanskrit equivalent of custom is sadachara, which means the approved usage or the usage of
the virtuous man. Custom is thus a rule which, as a result of a very long usage, has obtained
the force of law in a particular community or in a particular district. Custom thus plays a very
important part in Hindu Law. It modifies and supplements the written law. Immemorial
custom is transcendent law. (Manu)

It must, however, also be noted that a custom cannot be enlarged by parity of reasoning, since
it is the usage, and not the reason underlying the custom, that makes the law. (Venkata
Challamma v. Cheekati, A.I.R. 1953 Mad. 571)
CHAPTER IV

CONCLUSION

It is significant to note that the term Hindu is not defined anywhere in terms of religion or in
any statute or judicial decisions. For the purpose of determining to whom Hindu Law applies, it
is necessary to know who is a Hindu and none of the sources expressly state so. At most from
statutes, we can get a negative definition of a Hindu which states that Hindu law shall apply to
those who are not Muslim, Christian, Parsi, Jew, etc. and who are not governed by any other law.
Justice A.M.Bhattacharjee strongly states that according to him he cannot think that even a
staunch believer in any divine existence, transcendent or immanent, can believe in the divine
origin of Hindu law, unless he has a motive behind such profession of belief or has not read the
Smritis or is ready to believe anything and everything with slavish infidelity.
According to Justice Markandey Katju, Hindu law does not originate from the Vedas (also called
Shruti). He vehemently asserts that there are many who propound that Hindu law originated from
the Shrutis but this is a fiction and in fact Hindu law originated from the Smriti books which
contained writings from Sanskrit scholars in ancient time that had specialized in law.
The Shrutis hardly consist of any law and the writings ordained in the Smriti do not make any
clear-cut distinction between rules of law and rules of morality or religion. In most of the
manuscripts, the ethical, moral and legal principles are woven into one. It is perhaps for this
reason that according to Hindu tradition, law did not mean only in the Austinian sense of
jurisprudence and is objectionable to it; and the word used in place of law was the Sanskrit
word dharma which connotes religion as well as duty.
Although Dharmasutras dealt with law, they did not provide an anthology of law dealing with all
the branches of law. The Manusmriti supplied a much needed legal exposition which could be a
compendium of law. But according to Kane, It is almost impossible to say who composed the
Manusmriti. The very existence of Manu is regarded to be a myth by many and he is termed as
a mythological character.
Many critics assert that the word Smriti itself means that what is remembered and therefore the
validity or proof of the existing Smritis could be challenged. It cannot be said for certainty that
what the sages remembered was actually what was propounded.
The Smritis are admitted to possess independent authority but while their authority is beyond
dispute, their meanings are open to various interpretations and has been and is the subject of
much dispute. Till date, no one can say for sure the exact amount of Smritis which exist under
Hindu law. It is due to the abovementioned problems that the digest and commentaries were
established and various schools of Hindu law started to give birth. The modern sources of Hindu
law such as Justice, equity and good conscience have been critiqued on the grounds that it paves
the way for personal opinions and beliefs of judges to be made into law. We have seen catena of
cases where the decisions of the Court have been criticised for want of proper reasoning. This
also signifies the incompleteness of the laws which exist. The Supreme Court in most matters has
ascertained the rules of Hindu law successfully but there are couples of cases where they have
interpreted the rules in their own light. One of the gravest cases of the Supreme Court which
deserves much criticism is the case of Krishna Singh v. Mathura Ahir. The Allahabad High
Court had rightly held that the discriminatory ban imposed on the Sudras by the Smritis stands
abrogated as it contravenes the Fundamental Rights guaranteed by the Constitution. However,
the Supreme Court contradicted the above view and held that Part III of the Constitution does
not touch upon the personal laws of the parties. In applying the personal laws of the parties one
cannot introduce his own concepts of modern times but should enforce the law as derived from
recognised and authoritative sources of Hindu law.except where such law is altered by any
usage or custom or is modified or abrogated by statute.
It can be submitted with ease that the above view is contrary to all Constitutional theories and is
expressly in contradiction with Article 13. It is shocking to note that this judgment is yet to be
over-ruled in express terms.
Since the aegis of time, Hindu law has been reformed and modified to some extent through
legislations but these reforms have been half-hearted and fragmentary. The problem with
fragmentary reforms is that though reforms were made to change some aspects, their
implications on other aspects were over-looked. For example, the Hindu Womens Right to
Property Act, 1937, was passed with a view to granting property rights to women but its
repercussions on the law of joint family was over-looked. The result was that fragmentary
reforms through legislations solved some problems but resulted in others.

It has been seen that Hindu law has been critiqued for its orthodoxy, patriarchal character and
does not bear a very modern outlook of society. There are many areas where the Hindu law
needs to upgrade itself, for example, the irretrievable breakdown theory as a valid ground for
divorce is still not recognized under the Hindu Marriage Act, 1955, and even the of Supreme
Court have expressed their concern on this. The most valid concern is that the very definition of
a Hindu is still not given in any of the sources. Statutes give only a negative definition which
does not suffice the test of time. The very proponent that Hindu law is divine law has been
challenged by scholars and atheists. There are many Smritis which are yet to be found according
to Historians and many conflicts of opinions and interpretations have arisen for the existing ones,
thus creating a window of ambiguity under Hindu law. There are also several areas where Hindu
law is silent Most of the ancient sources of Hindu law are written in Sanskrit and it is well
known that in the present times there is a dearth of Sanskrit scholars. There is hardly any
importance left of the ancient sources since the time the modern sources have emerged and been
followed. It can be said that proper codification of Hindu law without room for ambiguity is the
need of the hour. It can be said that where the present sources of Hindu law are uninviting the
Legislature could look into sources and customs of other religions and incorporate them into
Hindu law if it caters to the need of the society and meets the test of time.
SECONDARY SOURCES

I. BOOKS

Dr Paras Diwan , Modern Hindu Law, Allhabad Law Agency 22nd edition (Reprint 2015)

Maynes Treatise on Hindu Law and usage, ed. Ragannath, J. 15th Ed., Bharat Law House, 2003.

Mitra on Hindu Law, 2nd Ed., Orient Publishing Company, 2006.

II. WEBSITES

http://www.legalservicesindia.com/article/article/sources-of-hindu-law-329-1.html

http://kamkus.org/coursematerial/Unt-I.pdf

https://indianlawnews.wordpress.com/2016/03/21/sources-of-hindu-law-ancient-and-
modern/