Table of Contents
Concept of Family
The word family is derived from the Latin word “familia/familae” which refers to a group commonly found among plants and animals. In a general sense, it refers to persons living together and related by blood or adoption.
In 1872, the term “family or household” was defined to include those who live together, including servants and visitors. In 1881, it was further explained as people sleeping in the same house or compound. Different Acts define the term differently. For example:
According to the Code of Civil Procedure, 1908:
- A man and his wife living together.
- Any child/children of the said couple or either of them.
- Any child/children maintained by the said couple.
- A man without a wife or not living with his wife along with his child/children.
- A woman without a husband or not living with her husband along with her child/children.
- A man or woman and his/her brother, sister, ancestor, or lineal descendant living with them.
Family Patterns
In a narrower sense, family patterns in India are:
- Patriarchal: In patriarchal family pattern, male is the head. Women move to the husband’s home post-marriage. Property passes to males. Males ensure livelihood and women manage home and children.
- Matrilineal: It is the kind of family pattern where female is the head. Found in Assam, Meghalaya (Khasi tribe). In this type of family pattern husband moves to wife’s house and property passes through maternal line.
In broader terms, family patterns include:
- Nuclear Family
- Joint Family or Extended Family
- Hindu Joint Family
- Composite Family (e.g., in Andhra Pradesh)
- Single Parent Family
- Relationships in the nature of family (e.g., Live-in relationships)
- Pretending Family (e.g., gay couples not legally recognized yet)
Sources of Hindu Law
- Shrutis: The term shruti means”What is heard”. Shruti is the oral knowledge, especially of the Vedas and Brahmanas. The origin of shruti dates back to 4000–1000 BC.
- Smritis: Smritis are basically the texts attributed to authors. The smritis were transmitted and supplemented solely through generations. Following are the kinds of smritis:
- Manusmriti- This smriti is also known as manav dharam shashtra. It is the oldest and smriti which is compiled around 200 BC. It contains 12 chapters and 2694 verses. Manu is considered as writer of this smriti. This smriti emphasizes on caste, family, guilds and districts. Brahmins have an eminent position in this smriti and no rights were available for women/shudras.
- Yajnavalkya Smriti: This smriti was complied around 1st Century AD by sage yajnavalkya. It is more liberal and organized, especially for women/shudras.
- Narada Smriti: This smriti is written by sage coming from nepal, but authorship is attributed to Devarishi Narad. It was compiled around 200 AD. This smriti recognized widow remarriage, women’s rights to property, rules of evidence and pleadings.
- Commentaries and Digests:
- Mitakshara: It was written by sage Vijnaneshwara and is based on Yajnavalkya Smriti. Mitakshra is the chief source across India except Bengal, Bihar, Orissa.
- Dayabhaga: This commentary was written by Jimutvahana. It is prevalent in Bengal, Bihar, Orissa. It is not a commentary on a specific smriti aur shruti but it is a digest of all the codes.
Schools of Hindu Law
Two major schools:
- Mitakshara School It is an Orthodox school of law, based on Yajnavalkya Smriti. It contains following sub-schools:
- Mithila (North Bihar)
- Banaras (North India, Punjab)
- Maharashtra or Mumbai (Maharashtra, Gujarat)
- South India or Madras School
- Dayabhaga School It is not a commentary on any particular code or smriti and declares to be a digest of all the codes. It is prevalent in Bihar, Bengal and Assam
Difference between Mitakshara and Dayabhaga
| Mitakshara | Dayabhaga |
|---|---|
| Vijnaneshwara is the author | Jimutvahana is the author |
| Applies to all India except Bihar, Bengal and Assam | Applies only in Bihar, Bengal and Assam |
| Son, grandson, great-grandson have right to property from birth | No such right until father’s death |
| Right to partition during father’s lifetime | No right to partition during father’s lifetime |
| Surviving coparceners inherit property | Widow can claim share and enforce partition |
| No restriction on alienation | Restricted alienation |
| Share not predefined | Share is fixed |
| Female not a coparcener | Female is a coparcener |
| Follows nearness of blood | Follows religious/spiritual benefit |
References:
- Family Law-I by Poonam Pradhan Saxena
- Code of Civil Procedure, 1908
