Module 1 sources of hindu law muslim law and christian law.pdf

WELCOME
TO
FAMILY LAW-I
CLASS OF 2025
Dr. Rajdeep Ghosh
Ph.D. (Law), UGC-NET, LL.M. (2 Year- Gold Medalist)
Assistant Professor Senior Grade-I (Law)
VIT School of Law (VITSOL), Chennai
(Former Asst. Professor & Asst. Director at Rashtriya Raksha University, Gandhinagar, Gujarat,
INI, MHA, GoI)
Email: advrajdeeplaw@gmail.com/rajdeep.ghosh@vit.ac.in

By:
Dr. Rajdeep Ghosh
(Former Asst. Professor & Asst. Director at Rashtriya Raksha University, Gandhinagar, Gujarat, INI, MHA, GoI)
Family Law : I (M-1)
Introduction to Family, Family Law
and its Sources

Dr. Rajdeep Ghosh, advrajdeeplaw@gmail.com

What is a 'Family'?
o A family is a group of people related by blood, marriage, or adoption.
o Mack and Young say, “The family is the basic primary group and the natural
matrix of personality.”
o “Family is a group of persons united by ties marriages, blood or adoption
constituting a single household interacting and intercommunicating with each
other in their respective social roles of husband and wife father and mother, son
and daughter, brother and sister, creating a common culture”. “Family is a
biological social unit composed of husband, wife and children”- Burgess and Locke

CHARACTERISTICS OF INDIAN FAMILIES
are as follows-
1. Universality
2. Emotional Basis
3. Limited size
4. Nuclear Position
5. Formative Influence
6. Responsibility of the Members
7. Social Regulation
8. Persistence and Change
9. Influence of caste/community/
religion etc.
https://www.sociologylens.in/2022/01/family.html Dr. Rajdeep Ghosh, advrajdeeplaw@gmail.com

History and Evolution of Families
o Hunter/Gatherer societies kept small families because they were
always moving and it was difficult to feed a lot of mouths.
o Once agriculture developed, families became larger to help work on
farms.
o Industrialization has led to smaller families once again.
o Family members compete and cooperate
o Throughout history, families have been generally male dominated

Joint Family
A family where multiple
generations live together,
including grandparents,
parents, children, and often
uncles, aunts, and cousins.
A family unit
consisting of
two parents
and their
children living
together.
A family
headed by
one
parent
raising
one or
more
children
alone A family where the
parents are of the
same gender,
raising children
together
A family formed when one or
both partners bring children
from previous relationships into
a new marriage or partnership.
A family that includes
relatives beyond the
immediate nuclear unit, such
as grandparents, aunts,
uncles, and cousins, often
living nearby or together.

Patterns of Family Structure (Authority Wise)
GENDER AUTHORITY
(-ARCHY)
LOCATION
(-LOCAL)
INHERITANCE (-LINEAL)
MALE
(PATRI-)
PATRIARCHY PATRILOCAL PATRILINEAL
FEMALE
(MATRI-)
MATRIARCHY MATRILOCAL MATRILINEAL
BOTH or
NEITHER
EQUALITARIAN NEOLOCAL BILATERAL

Family law means the body of law regulating family relationships i.e., a set of laws which are
trained in relation to matters such as marriage, divorce, inheritance, succession, adoption,
minority and guardianship. The laws relating to such matters in India or governed through
different set of personal laws namely Hindu law [regulating all Hindus including Jains, Buddhist
and Sikhs], Muslim law, Christian law, Parsi law and special law comprising of special Marriage
Act.
What is Family Law ?

The Muslims are governed by the
following Acts:
• The Shariat Application Act, 1937
• The Mussalman Wakf Validating
Act, 1913
• The Dissolution of Muslim
Marriage Act, 1939
• The Wakf Act
• The Muslim Women (Protection of
Rights on Divorce) Act, 1986
The Hindus are governed by the
following four major Acts:
• The Hindu Marriage Act, 1955
• The Hindu Adoptions and
Maintenance Act, 1956
• The Hindu Minority and
Guardianship Act, 1956
• The Hindu Succession Act,
1956
The applicable
Christian Laws are
the following:
• The Christian
Marriage Act,
1872
• The Indian
Divorce Act,
1869
Major Family Laws (Legislations) in India
Secular Family Laws (Legislations) in India
1. Special Marriage Act, 1954 2. Juvenile Justice (Care and Protection of Children) Act, 2015 3. Guardian and
Wards Act, 1890, 4. Protection of Women from Domestic Violence Act, 2005, 5. Prohibition of Child
Marriage Act, 2006, 6. Medical Termination of Pregnancy Act, 1971 (amended in 2021), 7. Family Courts Act,
1984, 8. Dowry Prohibition Act, 1961 Dr. Rajdeep Ghosh, advrajdeeplaw@gmail.com

SOURCES
OF FAMILY
LAWS

Sources of
Hindu Law
SOURCES
OF
HINDU
LAWS

• Once the Constitution recognized personal laws u/Article 25 the
rights and obligations of Hindu are determined by Hindu law.
• It is a traditional law also called religious law.
• It is a positive law based on most ancient pedigree of known
system of jurisprudence.
• It is developed on various sources which can be classified as
ancient and modern sources.
• Sources of Hindu Law refer to the origins from which Hindu legal
principles derive. These guide legal practices in personal matters
like marriage, inheritance, and property.
Introduction

The Hindu Law is credited to be the most
ancient law system
which is approximately 6000 years old.

According to ‘Manu’ there are four
sources of Hindu Law, which are
considered as ancient sources:
1. Shruti
2. Smriti
3. Digest & Commentaries
4. Custom

Dr. P.V. Kanne, in his book, “History of Dharamshashtra” said
that,
“If we want to see
religion(Law) in a proper
way, then we should
analysis Shruti and Smritis.”
History of Dharamshashtra

Shruti
◉ ‘Shru’ means hear
◉ ‘Shruti’ means ‘what was heard’ by sages
◉ Originated from ‘Vedas’
◉ Most ancient religious scripture
◉ Estimated to be 4000-1000 B.C.
◉ The ‘vedas’ are four in number. Are as follows:
1. Rigveda (It is of oldest origin and consists of hymns
of praise of the natural forces)
2. Yajurveda (It contains rituals and sacrifice mantras)
3. Samveda (Contains verses to be chanted by seers)
4. Atharvaveda (It is devoted to magic, spells and
incantations)
the sage Vyasa is considered the compiler of
the Vedas. The word Vyasa means “compiler"
or "arranger” in Sanskrit.

Shruti
◉ ‘Shruti’ also includes six ‘vedangas’
1. Sikhas or orthography (rules of language).
2. Kalpas (rituals).
3. Vyakarana or grammer.
4. Chandas or prosody (meter, how long).
5. Jyotish or astronomy.
6. Niruksa or lexican (etymology).
◉ The fundamental essence of all ‘vedas’ are
considered as ‘Vedanta’ or ‘Upanishads’
◉ The ‘vedantas’ are commentaries on the
‘vedas’ their presumed end and essence

Smriti
Gautam Buddhyan
Apastamb
Harit
Vishnu and Vasith
◉ means that ‘which was remembered’ and
is believed to contain the precepts of God
◉ Smritis are divided into two :
Primary Smrities Dharma Shashtra
Manu Smriti
Yagyavalkya Smriti
Narad Smriti
Parashara Smriti

Smriti
◉ All these smirities deal with the civil and criminal law,
the laws of marriage and the procedural law.
◉ The sruti contains the very words of god whereas in
smriti the language is of human origin but the rules
are devine.
◉ Manu smritis made of 12 chapters and 2694 shlokas.
Yagyavalkya smriti is divided into 3 parts and is
extremely clear, brief and organised. Narad Smriti
being the last smiriti is such first legal code which
mentions subjects related to Judicial process, courts
and Judiciary.

Digest & Commentaries
◉ The period of the commentaries and
digest is between 700 AD -1700AD
◉ The principle commentaries are:
i) Dayabhaga by Jimutwahana,
ii)Mitakshara, a commentary on Yajnawalkya Smiriti by
Vijneshwara,
iii) Vivada Ratnakara by Chandeshwara,
iv) Smiriti Chandrika by Devan Bhatta,
v) Vyavahara Mayukha, by Nilkantha.
◉ In Case : Atmarao v/s Bajirao, It was held
that Digest writers and commenter’s has given
the statements of Smritis which can fulfil the
present requirements & ahead from smrities.

Custom
◉ Set of rules and norms, practice by particular
society for a long period of time
◉ Where there is a conflict between a custom and
the text of the smritis such custom will override
the text
◉ Custom may be divided into three classes;
1. Local customs;
2. Class customs;
3. Family customs;
◉ Case: Harparsad v/s Shiv Daya –(1816): It was said
that, “the custom is family or particular class or area
owing a long tradition.”

Custom
◉ Requirements of a valid Custom:
✓ Antiquity
✓ Continuous Observance
✓ Certainty
✓ Reasonableness
✓ Not against morality
✓ Not against public policy
✓ Conformity with statutory Law
◉ Case: Collector of Madurai v/s Mottaramlingam: Privy
Council held that, “in Hindu Law the clear proof of
customs shall be more relevant then the basic epics of
law.”

“
In ancient period Hindu law
had only its divine nature i.e.,
law of the God, but in now
days its nature has totally
changed due to modern
legislative measures.

In the Ramnad case (i.e., Collector of Madurai V. Muttu Ramalingam) it was held that
'Under the Hindu system, clear proof of usage would outweigh the written texts of law. In
this case M was a Zamindar. In 1795, his property was taken over by British, as he had
waged war against the Govt. But the property was returned to his sister Rani Mangaleswari
in 1803. She had no issues. She took Annaswami in adoption. He too had no issues, he took
Ramaswamy in adoption. He too had no issues. When he died, his wife Rani Parvati took
Muthu Ramalingam in adoption. This was rejected by Revenue Dept. as void. Rani Parvati
filed a suit for declaration that the adoption was valid and the court decreed in her favour.
The collector, appealed to the Privy Council. Held, taking adoption after the death of the
husband, with the consent of the relatives was a custom in vogue in Madurai and this
custom had been established. Hence, it upheld the adoption as valid.

MODERN SOURCES
1. JUSTICE, EQUITY & GOOD CONSCIENCE
2. LEGISLATIONS
3. PRECEDENTS
Justice, Equity & Good Conscience:
• They are natural law principles.
• Also called as secondary source of law.
• Equity means fairness in dealings. True justice can only be delivered through equity
and good conscience.
• In absence of any written or specific law these principles are to be applied in any
legal dispute.
• The Indian courts and legal system has broadly incorporated these principles.
• These principles have made their way in our legal system form 18th century and are
considered as modern source of law. The courts did applied them under the express
charters of British Parliament
• Constitution embodies them under the preamble
• The supreme court has also applied this in the case of Gurunath v. Kamlabai(1951)
etc. Dr. Rajdeep Ghosh, advrajdeeplaw@gmail.com

• Legislations are playing profound role in the development
as source of law.
• Legislation is a concrete, easily accessible, ascertainable
and authoritative source of law.
• During British period as different parts of India were
subject to diverse rules and practices, the British
Government was initially hesitant to legislate on the
personal matters of Indians.
• But gradually they stared making legislations with a cautious
approach.
• Few examples are ‘The Caste Disabilities Removal Act,
1850’, The Hindu Widows’ Remarriage Act, 1856, The Indian
Succession Act, 1865, Special Marriage Act, 1872.etc.
• With the need of clarity and codification Hindu law became
necessary and to a large extent has now been codified
through specific legislations.
LEGISLATIONS

• Also Known as judicial precedents.
• After the establishment of British rule, the hierarchy of Courts was established.
• The doctrine of precedent is based on the principle of treating like cases alike
was established
• Even today, the decisions of Privy Council are taken into consideration Courts in
India except where they have been modified or altered by the Supreme Court,
whose decisions are binding on all the Courts except for itself. (Art. 141)
PRECEDENTS
A FEW EXAMPLES OF PRECEDENTS DEVELOPING HINDU LAW:
•Lily Thomas v. Union of India
•The Supreme Court ruled that a second marriage by a Hindu man without divorcing his first wife is void.
•Sarla Mudgal v. Union of India
•The Supreme Court ruled that a second marriage by a Hindu who converted to another religion violates the Hindu
Marriage Act.
•Ng Dastane v. S. Dastane
•In this case, a husband filed a suit against his wife alleging cruelty. The wife argued that the claims were fabricated and that
the marriage deteriorated due to her husband's actions. Cruelty can also happen against husband.
Ref. https://www.defactojudiciary.in/notes/hindu-laws-landmark-judgement

Sources of Muslim
Law
(Usool-e-Fiqh)

Origin and development of Muslim law
• Muslim Law or the Islamic Law is believed to have been
originated from the divine.
• The Divine communicated it to Prophet Muhammad
who prescribed them in Quran. In the later days, the
disciples of Prophet Muhammad (or Muslim jurists)
have refined and polished these principles. The
provisions of Quran are vast and dealt with almost all
aspects of human life.
• Fiqh or Islamic jurisprudence is the source of a range of
laws in different topics that govern the lives of the
Muslims in all facets of everyday life. The word “Fiqh” is
an Arabic term meaning “deep understanding” or “ full
comprehension”. Dr. Rajdeep Ghosh, advrajdeeplaw@gmail.com

Sources of Muslim Law
SUNNI :
Primary Sources / Formal
Sources:
1. Quran
2. Sunna
3. Ijma
4. Qiyas
(They are recognised by
Prophet during his lifetime,
directly/indirectly. It is followed
in the order of priority.)
Secondary Sources /
Extraneous Sources:
1. Custom
2. Precedent
3. Legislation
4. Justice, Equity and Good
conscience
SHIA :
1. Quran
2. Sunna
It is broadly divided into two groups -
https://blog.ipleaders.in/preliminary-sources-muslim-law/

Quran
• Derived from Arabic word “Qurra” – means reading that
which ought to be read.
• 609 AD – Prophet used to meditate at Mount Hira –
received divine messages – Wahi – until his death in 632 AD.
• These messages were compiled by Zaid in Abu Bakr’s period
– first written version of Quran was made.
• It was revised by Zaid in Osman’s period.
Features of Quran –
a) Divine Source – Wahi : divine messages.
b) First and Fundamental source – only if Quran doesn’t
provide a solution, one goes to the next source. But,
solutions provided by other sources shouldn’t be
contradictory to the Quran. Dr. Rajdeep Ghosh, advrajdeeplaw@gmail.com

Quran
c) Structure :– It is in the form of verses – divided into 6237 verses called Ayat – there are
114 chapters – chapters are called Sura. Eg – Surat-un-nisa : rules relating to women;
Surat-ul-Bakr : rules relating to religion and morality; Surat-ul-Talaq : rules relating to
divorce.
d) A mixture of law, religion and morality. Out of 6237 Ayat (verses) only 200 deals with
legal rules. Out of this 200, only 80 deals with personal matters.
e) Different forms of legal rules are present – Quran abolished civil customs such as
unlimited polygamy, infanticide, gambling.
f) Quran is unchangeable – cannot be amended because it is the collection of divine
messages.
g) It is incomplete text/code as far a law is concerned
h) Silent on many issues. Hence Prophet came up with new source of law - Ahadis
Drawbacks

Sunna / Ahadis / Hadis / Tradition (Trodden
path of Mohammad)
• Whatever was told or done by the Prophet
became this source of law.
What constitutes Sunna?
➢Sunnat-ul-Qaul - told by the Prophet
➢Sunnat-ul-Fail - deeds of the Prophet
➢Sunnat-ul-Taqrir - silence of the Prophet.
Eg. : Talaq, dower etc. Silence was taken as
acceptance.
• Qualified Narrators in the society
narrated the traditions of the Prophet
which also became a source of law. Abdul
Rahim (a muslim scholar) laid down
certain qualifications to be a Narrator :
➢ Muslim
➢ Adult and sane
➢ Should have power of retention
➢ Good conduct.
• First systematic collection of traditions was done by Malik
(founder of Maliki School) in his book “Muvatta”.
• A better version of traditions was made by Hanbal (founder
of Hanbali school) in his book “Masnad” – he had collected
over 80,000 traditions.

Ijma (Consensus of Opinion)
• When the Quran and Sunna could not cover/provide rule of law
to the new problems of society, jurists collectively agreed and
this collective opinion of jurists is called Ijma.
• Collective opinion can be given by Mujtahid (scholar) and the
process of giving Ijma is called Ijtihad (i.e., independent
reasoning).
• According to Fyzee “Quran and Sunna look to the past while
Ijma deals with the future of Islamic Jurisprudence.”
• Ijma should not be contradictory to Quran and Sunna, otherwise
it has no value.
• Kinds of Ijma –
• 1. Ijma of Companion – given by companions of Prophet – most
valuable and authoritative Ijma – cannot be modified by the
jurists.

Ijma
2. Ijma of Jurists – given by Mujtahids – but can be modified by the next generation of
jurists.
3. Ijma of the people – given by the people when they agree to a particular opinion on an
issue – it can be modified.
Drawbacks of Ijma –
1. Difference in approach by people
2. Doubtful regarding the origin and consensus
3. Practically impossible to get the opinion of jurists all over the world
4. Except the Ijma of Companion, other two can be easily modified. When anything can
be easily modified, it cannot be considered as a source of law by the next generation.
5. Ijma came to a decline after the 10th century.

Qiyas
• It is an Arabic word which means comparison or measurement.
• Qiyas is the process of legal deduction according which
the jurists , confronted with an unprecedented case, bases his or
her argument on logic used in Quran and Sunnah. Qiyas must not
be based on arbitrary judgment, but rather rooted in primary
sources.
• According to a Hadith, “Where there is no revealed
injunction, I will judge amongst you according to reason.”
• Mujtahids compare a present problem/issue to a similar issue for
which the solution is provided in the Quran or Sunnas or Ijma, and
the same solution is applied.
• They give an implied meaning to the Quran/Sunnas because they
find the solution directly or indirectly.
• Qiyas is accepted or admitted by Shafei and Malikis. It is their
main source of law.

Urf / Taamul / Customs
• Secondary sources explain or modify the Primary sources
according to the changing needs of the society.
• Customs are any tradition/practice/usage recognised by law.
• The Prophet through his silence allowed certain customs to
be followed.
• Commercial customs of Mecca, customary agricultural laws
of Medina, marriage, dower, divorce (nikah and talaq) etc are
some of the customs which are followed.
Essentials of Customs –
✓ Custom must be of regular occurrence – continuous.
✓ Custom must be certain
✓ Custom must be universal
✓ Custom should not be against the text (Quran, tradition, Ijma)
• Shafei and Hanbali do not consider customs as a major
source.
• Punjabi Muslims – Kutchi Memoms, Khoja, Bohra who are
converted Muslims (Hindu by origin) are governed by Hindu
law regarding succession and inheritance.

Legislation
Some of the enactments
for the Muslims -
➢Shariat Act, 1937
➢Dissolution of
Muslim Marriages
Act, 1939
➢Muslim Women
(Protection of
Rights on Divorce)
Act, 1986
➢Wakf Act, 1954
➢Mussalman Waqf
Validating Act, 1913
General Laws are –
➢Caste Disability
Removal Act, 1850
➢Bharatiya Sakshya
Adhiniyam, 2023
➢Child Marriage
Restraint Act, 1929 -
amended in 1978
➢Indian Majority Act,
1875
➢Criminal Procedure
Code, 1773
➢Family Court Act,
1984 Dr. Rajdeep Ghosh, advrajdeeplaw@gmail.com

Precedent
Judicial decisions of higher courts which are binding on lower courts.
Hameera Bibi v. Zubaida Bibi
- According to Islam one should not impose interest on any loan given – Court
decided : unpaid Mahr/dower is a debt (dower – husband promises to pay
something to the wife as a token of respect) – Privy Council held that wife can
claim interest on unpaid dower though it is against Islam.
Begum Subanu v. Abdul Gafor
- Husband had one wife – he married again – 1st wife got separated from her
husband on the ground that husband married again – she claimed for
maintenance – husband claimed that Islam permits 2nd marriage and she
separated from him, hence he does not have to pay maintenance – Court held
that the husband has to pay maintenance for her.
Maina Bibi v. Choudhary Vakhil Ahmad
Held : In unpaid dower, wife has the right to retain property of the husband.
Bai Tahira v. Ali Hussain
Held : Although Muslim woman has received maintenance under personal law,
she is entitled to maintenance under Cr.P.C (because under Muslim law,
maintenance provided is not sufficient). Dr. Rajdeep Ghosh, advrajdeeplaw@gmail.com

Scriptural Foundations
- The Holy Bible is the primary source: Old & New Testaments.
- Provides moral and ethical principles for family life.
- Interpretations vary among denominations:
• Literal: Every word considered divine law.
• Contextual: Moral lessons emphasized.
- Teachings of Jesus and the Apostles shape family norms.
- Importance of Canon Law in some denominations.
- Rituals and sacraments (like marriage) rooted in liturgical
practices.
- Denominational differences: Catholic, Protestant, Orthodox.
- Indian courts have clarified and shaped Christian family law.
- Annulments, cruelty, desertion, and fraud in marriage
tackled by courts.
- Example: Cases interpreting ‘reasonable grounds for
divorce’. Dr. Rajdeep Ghosh, advrajdeeplaw@gmail.com

Key Legislations Governing Christians
- Indian Christian Marriage Act, 1872 – governs marriage.
- Indian Divorce Act, 1869 – governs divorce.
- Indian Succession Act, 1925 – deals with inheritance.
- Others:
• Marriage Validation Act, 1892
• Matrimonial Causes (War Marriages) Act, 1948
Individual Reasoning & Experience
- Christians may use conscience and reason to apply scriptural
values.
- Personal spiritual insights influence understanding of family
law.
- Especially relevant in evolving social contexts.

By:
Dr. Rajdeep Ghosh
(Former Asst. Professor & Asst. Director at Rashtriya Raksha University, Gandhinagar, Gujarat, INI,
MHA, GoI)

Module 1 sources of hindu law muslim law and christian law.pdf

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