PERSONAL lAW

 Hindu personal laws refer to the laws of the Hindus as it applied during the colonial period (British Raj) 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.[1] 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.

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. While modern Indian Law claims to make strides towards secularism, it is undeniable that its foundations rise from the Hindu legal tradition and continues to maintain religious legal acceptance by recognizing the personal and family laws of the Islamic, Christian, Jewish, and Hindu religions.

Before discussing the modern application and sources of Hindu law it is important to outline whom thse 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.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 Personal law

Legislation

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.[3] While it is not a traditional source of law for the Hindu legal system, it is the latest and most legitimate form.

During colonialism, the British codified several aspects of the Hindu legal tradition into the Indian legal system, with the assumption that all Indians were Hindus. Thus upon gaining independence, many of the same laws that governed the country during colonialism were maintained as such, making the Indian Constitution and legal system heavily laden with Hindu legal traditions at its foundation.

Case Law

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. 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.

Notable Legal Precedents and Legislation

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.

Another Act that most came to be was Early in December 2008, the 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. 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’ 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.

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