Personal Law (Hindu Law) Legal Rules-Thelegalbank

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INTRODUCTION

Personal laws are the laws that apply to a special religion in common and those laws which govern the religion. These can be the custom or the legislation that has been happened for a long period and these are the laws from where these religions have also received their grounds (Basis) and the law on these has grown and evolved. The people have been following these laws for a long time and these are prevalent to the people of their religion. These laws have been built keeping in mind the various opinions and sentiments of the people.

Hindu law is one of the most ancient and primitive laws that are still prevalent in today’s era and also known to the world at big. It is governed by the Hindu Succession Act of 1956, it is a codified law passed by the Parliament of India correlated to the Intestate (unwilled property), to amend and direct the Intestate and Testamentary Succession under the Hindu law but in some cases, the Indian succession act plays a major part. Section 5-29 talks about the intestate succession linked to the concept of women as a coparcener (a person who shares the inherited land evenly) (Sections 6 & 7), male intestate and their rule of succession.

(Section 8-13), female intestate and their rule of succession (Section 14-16), other relationships and rights (half-blood, full-blood, Child in a womb, etc) have been obtained under (Section 17-29) of the Hindu succession act. Part VI of the Indian Succession Act, 1925, starting from Section 57, expressly identifies the right of a Hindu to dispose of his property according to the will made by him (Testamentary Succession). Schedule III grants for sections that apply to wills and codicils under Hindu law subject to limitations.

The Hindu law has various acts and provisions that govern it in things like Divorce, Marriage, Adoption, Succession, Property, Minority, Rights of the son, Pious obligation, etc. which are control by The Hindu Marriage Act, 1955, The Indian Succession Act, 1925, Guardianship and Adoption Act, 1956. These subsequent laws are following the Hindu personal law. The main causes of Hindu law are the customs and legislation, from where the law has been obtained.

GUARDIANSHIP:

The Hindu law of guardianship of minor children has been revised, codified, and determined by the Hindu Minority and Guardianship Act,1956. Thus, Section 4(b) of the act, states that a minor means a person who has not achieved the age of 18 years. He is deemed to be a person, who is physically and intellectually imperfect and immature, and hence needs someone’s security. Section 6-9 deals with the idea of various guardians under Hindu law and what are the rights and restrictions. There are several ways in which the guardianship of the child is assigned to either of the parents:

 

1) If the couple has either a boy or an unmarried girl (legitimate), then the first guardian would be the father and after the father, the mother will be held for guardianship; but in case of a child who is smaller than 5 years of age, the custody of the child would ever be with the mother unless the father after his death has designated someone else as the guardian of the minor child.

 

 

2) If the couple has an illegitimate boy or girl, then the primary guardian of the child is the mother and after mother, the custodian is the father unless the mother after her death has designated a person to be the natural guardian of the minor child.

3) If the couple has a daughter and she is wedded then the guardian of the married daughter will be his husband.

GROUNDS FOR Dismissal OF A GUARDIAN:

The court has the power to eliminate any guardian in accordance with Section 13 of the Hindu Minority and Guardianship Act, 1956, which are as regards:

  1. If he terminates to be a Hindu,
  2.  If he shifts a hermit or ascetic,
  3. The court can dismiss him if his interest is against the interest of the minor.

The benefit of the minor is of utmost importance while deciding such things.

 

ADOPTION UNDER THE HINDU LAW:

Adoption under Hindu law can be done in two ways:

1. Within-country adoption,

2. Inter-country adoption,

· The Intercountry adoption is directed by the Juvenile Justice Act. Under which there is an agency which is also recognized as the Central Adoption Regulating Authority.

· The benchmark case of, Laxmikant Pandey vs Union of India in the year 1984, gave inter-country adoption rules and regulation got a new dimension which changed the whole scenario of rules and plans that were earlier followed.

Under Hindu law, the idea of adoption is followed due to some religious beliefs. There are certain duties in the Hindu law that are required to be done by the son, for that plan adoption is necessary. Thus, the Hindu law permits the adoption of a child under the Hindu Adoption and Maintenance act, 1956 and every adoption has to take place within the confines of this act and any violations of the provisions of this act will be invalid. Earlier, this act was of the idea that only a male can adopt a child but later an amendment was made and now a female can also adopt. The act is applicable in the whole of India excluding the state of Jammu and Kashmir and refers to any person who is a Hindu. Also, Section 6-17 of the Hindu Adoption and Maintenance Act, 1956 talk about who can adopt, what are the essentials for a legitimate adoption, situations for a male and female to adopt, who can be adopted, what are the rights and connection in the eyes of the law between the parents and the adopted child, etc. 

 

DIVORCE UNDER THE HINDU LAW:

Divorce under the Hindu Law is prepared under the Hindu Marriage Act. Section 10 of the Indian Divorce Act of 1869, states the right of women to apply for the divorce from her husband on several grounds as specified in the section such as adultery, bigamy, desertion, etc.(See More). Also, after the amendment in the act, a new section was also included in it, like Section 10A, which has given the freedom to the couples to Divorce by Mutual Consent. So there are many chapters in the act that talks about the different ways of divorce while under the Hindu Marriage Act section (11-18) talk about the nullity of marriage. This act lays down the rights and ideas, for judicial separation and even for remarriage if the couple wishes to and also for maintenance and settlement of cases. While section (19-30) talks about the jurisdiction and the idea to lay down, in the manner of the divorce. Divorce is a theory that has been placed after the year 1956 as earlier there was no provision about divorce and the practice of the Sati system was common in the country but since the rights and duties of the women were assigned the lawmakers identified the need and made this act.

 

Hindu Law has 2 principal schools:

1. Mitakshara

2. Dayabagha

Dayabagha School prevails in Bengal and North-east states while Mitakshara School is common in the rest of India.

Various modifications have been brought in the Hindu Law by the codification and soon there are four major codified enactments of Hindu law specifically:

1. Hindu Marriage Act, 1955

2. Hindu Succession Act, 1956

3. Hindu Adoption and Maintenance Act, 1956

4. Hindu Minority and Guardianship Act, 1956

Before explaining in detail the Hindu Law it is of great importance to determine who are Hindus?

In India, it is witnessed that the Hindu population is in the majority. However, to date, no precise definition of the term Hindu is granted under any law or judicial declaration.

 

 

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