Introductory
Under the Indian Constitution, all aspects of family law are in the Concurrent list. This means that both Parliament and the State Legislatures have power to legislate in respect of these matters. But, apart from some legislations relating to the Muslim wakfs and Hindu endowments, the State Legislatures have not exercised this power to any appreciable extent. The entire condified Hindu law has been enacted by Parliament. Some minor modifications have been made here and there by the State Laws. The Tamil Nadu Legislature passed the Hindu Marriage (Amendment) Act, 1968, which validated certain marriages performed among the members of the Self-Respectors' Cult.
All the statutes relating to family law of other Indian communities, too, have been passed by the Central Legislature such as the Christian Marriage Act, 1872, (Indian Divorce Act, 2001) Divorce Act, 2001 (Parsi Marriage and Divorce Act, 1936), Parsi Marriage and Divorce Act, 1988, Dissolution of Muslim Marriage Act, 1939 and Special Marriage Act, 1954.
In India, family law does not differ from State to State. Each community is governed by one single system of law wherever its members may be settled, domiciled or residing. However, within the system of law of each community there are some variaions; in a community people belonging to different castes, sects, sub-sects or schools may be governed by separate rules . Sometimes custom also modifies the personal law in respect of some castes or tribes. Sometimes law may be different on account of some reliious peculiarities.
SCHOOLS OF LAW
With the exceptions of the Hindu and the Muslims, the other communities have no school. In the case of Hindus, schools have some regional connotation, while it is not in case of muslims, it is as pers sects.
HINDU LAW
Hindu law has two main schools: The Mitakashara school and Dayabhaga. The former has four sub-schools : the Mithila, the Benares, The Bomvay and the South India or the Dravida. These sub-schools prevail in their respective jurisdictions and in some matters modify the Mitakshara law; otherwise it is the Mitakshara law which prevails. The Dayabhage school of Hindu law prevails in Bengal, Assam, Tripura, Manipur, Mizoram, Arunachal and Meghalaya. In rest of India, it is the Mitakshara school which has its sway. The Mitakshara school prevails even in the Dayabhage jurisdiction on all those matters on which the Dayabhage is silent.
The peculiarity of schools of Hindu law is that if a Hindu governed by a school migrates to another region (where different school has jurisdiction), he will continue to be governed by his own school, unless he gives up his school and adopts the law of the place where he has settled. In the modern Hindu law, schools have relenvance only in respect of the uncodified Hindu law; they have lost all their relevance in regard to the codified Hindu law.
Another important aspect of Hindu law is that a person will be governed by custom if he is able to establish a custom applicable to him, even though such a custom is in derogation to Hindu law. Although the codified Hindu law overrides all rules and customs of Hindu law, yet such has been the impact of custom that in certain areas custom has been expressly saved.
MUSLIM LAW
In respect of Muslims, schools have no territorial or regional significance in the sense in which they have in relation to the Hindus. The Hanafi school one of the four schools of Sunni sect, covers a vast majority of Muslims all over India. Muslims belonging to the Shafii school, another school of Sunnis, are mostly found in southern India. The other two schools of the Sunnis, the Maliki and Hanabali, have hardly any adherents in India.
After the Sunnis, the Shias consist of the next largest group of Muslims in India. The Ismailis, who constitute the smallest minority group among the Muslims and who are mostly found in western and central India, are governed by the Ismaili school of the Shias. Most of the Shias are governed by the Ithana Ashari school. The Zahdis, followers of Zayd school, another school of the Shias in India, either. The Shias, like Sunnis, live all over India.
Mention may also be made of the three commercial communities of Muslims, Khojas, the Bohras and the Cutchi and Halai Memons, who before the Shariat Act, 1937 were governed by their own customs and in some matters by Hindu law. After the year 1937 it is not so. The former two belong to the Shiite Ismaili school and the latter two belong to the Sunnite Hanafi school. The Mopilias and the Meos are also Hindu converts to Islam and to some matters they are still governed by customary law.
In respect of matrimonial law, the Hanafi school of Sunnis and the Ithana Ansari school of the Shias are important.
In the case of other communities of India, there are no schools, though local variations still exist, such as those living in urban areas and those living in the Mofussil. These variations exist either on account of historical introduced by custom. India has all the sects of the Christians, the Protestants and the Catholics and others, too, though the Protestants are the dominant christians.
Among the parsis, there are no sects or schools.
It has been often said that in India there is no lex loci, and every person is governed by his personal law. Prima facie, a Hindu residing in a particular part of India is deemed to be governed by the school of Hindu law that operates there. Thus, a person living in Bengal is governed by the Bengal school. A Muslim is governed by the sect to which he belongs and the Muslim sects and their schools have no territorial connotation.
The Christians, Particularly in respect of ceremonies of marriage, are governed by their own sects.
Next Topic - Migration and Domicile: Click here
.jpeg)
0 Comments