NIOS Class 12 Introduction to Law Chapter 3 Personal Law–I: Hindu and Muslim Law

By Parimol Roy / NIOS Class 12 Introduction to Law

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NIOS Class 12 Introduction to Law Chapter 3 Personal Law–I: Hindu and Muslim Law

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Personal Law–I: Hindu and Muslim Law

Chapter: 3

Module – 1 Concept of Law

INTEXT QUESTIONS 3.1

1. What do you understand by the term ‘Hindu’?

Ans: According to Hindu Law, the definition of a ‘Hindu’ is as under:

(i) Any person who is Hindu, Jain, Sikh or Buddhist by religion, i.e. Hindu by Religion.

(ii) Any person who is born of Hindu Parents (viz. when both the parents or one of the parents is Hindu, Jain, Sikh or Buddhist by religion) i.e. Hindus by birth.

(iii) Any person who is not a Muslim, Christian, Parsi or Jew and who is not governed by any of other law.

2. What do you mean by the term ‘Muslim’?

Ans: A Muslim is person whose religion is Islam. As per judicial opinion, a person may be Muslim either by birth or through conversion.

(i) Muslim by birth- a person whose both the parents were Muslim at the time of his birth is regarded as Muslim by birth.

(ii) Muslim through conversion- any person of any religion, who is of sound mind and has attained the age of majority, can become follower of Islam after renouncing his original religion.

3. Write down the names of sources of Muslim law.

Ans: Following are the sources of Muslim law, namely – Quran, Sunna, Ijmaa, Qiyas, Custom, Legislation, Judicial decision and Justice, Equity and good conscience.

INTEXT QUESTIONS 3.2

1. What are the essentials of a valid Hindu Marriage?

Ans: The essentials for valid Hindu marriage are as follows:

(i) Neither party has a spouse living at the time of marriage.

(ii) At the time of marriage neither party.

(a) Is incapable of giving a valid consent due to unsoundness of mind.

(b) Though capable of giving a valid consent has been suffering from mental disorder of such a kind as to be unfit for marriage and procreation of children.

(iii) The bridegroom has completed the age of twenty one years and bride is aged eighteen years.

(iv) The parties are not within the degrees of prohibited relationships, unless the custom and/or usage permits such marriage.

(v) The parties are not Sapindas of each others, unless the custom and / or usage permit such marriage.

2. Whether a Muslim woman has right to divorce her husband?

Ans: Initially Muslim wife cannot divorce her husband of her own accord. She can divorce her husband only where husband has delegated such rights to her or under an agreement. But after enactment of the Dissolution of Muslim Marriage Act, 1939 Muslim wives also got right to dissolve their marriage by an order of the court

3. What do you understand by Child marriage?

Ans: Child Marriage is a form of marriage where bride and bridegroom has not attained the age of 18 years and 21 years respectively.

INTEXT QUESTIONS 3.3

1. What are the kinds of succession in Hindu law?

Ans: The Hindu Law of succession can be classified under two heads:

(i) Testamentary Succession: The property (separate, divided, undivided) devolves according to the will of a person who has the ownership over the property or interest in the same. It deals with the rules related to the devolution of the property on relations as well as others.

(ii) Intestate Succession: it is based on the rules which determine the mode of devolution of the property of the deceased on heirs solely on the basis of their relationship with the deceased, when the person dies without making his will or testament.

2. What is the difference between succession and inheritance?

Ans: Testamentary Succession takes place according to the will and testament of the deceased whereas intestate succession is called inheritance under which the legal heirs of the deceased succeed to his property.

3. What do you mean by doctrine of representation? Whether it is applicable in Muslim law?

Ans: Muslim Law does not recognize the doctrine of representation. The estate of the deceased person devolves upon his heirs at the moment of his death. The estate vests immediately in each heir in proportion to the share provided by the Muslim Law. As the interest of each heir is separate and distinct, one of a number of heirs cannot be treated as representing the others. Thus, if P’s son R dies in the lifetime of P, the son of R i.e. grandson of P cannot claim his father’s share as representing him but in Hindu law the doctrine of representation is recognized.

TERMINAL EXERCISES

1. Explain the significance of Personal Laws in our day to day life.

Ans: Personal law is that branch of law which deals with matters pertaining to a person and his or her family, such as marriage, divorce, maintenance, adoption, inheritance, guardianship, and succession.

These laws are significant because they regulate important aspects of personal and family life — the validity of marriage, the effects of marriage on property rights, legitimacy of children, adoption, and transfer of property after death.

In India, different religious communities such as Hindus, Muslims, Christians, Parsis, and Jews are governed by their own personal laws, making them an integral part of social and legal life.

2. Write a comprehensive note on the various sources of Hindu Law.

Ans: The sources of Hindu Law are divided into Ancient and Modern sources.

(i) Ancient Sources:

(a) Vedas or Sruti: The primary texts of Hindu religion revealed by God.

(b) Smritis: Supplementary texts explaining the Vedic rules.

(c) Commentaries and Digests: Analytical interpretations of Smritis that systematized the law.

(d) Customs: Long-established social practices recognized as binding law.

(i) Modern Sources:

(a) Equity, Justice, and Good Conscience: Introduced under British rule to ensure fairness where no specific law applied.

(b) Judicial Decisions: Practical interpretations of Smritis and Commentaries by courts.

(c) Legislation: Codified laws such as:

Hindu Marriage Act, 1955

Hindu Succession Act, 1956

Hindu Minority and Guardianship Act, 1956

Hindu Adoption and Maintenance Act, 1956

3. What are the important sources of Muslim Law?

Ans: The following are the important sources of Muslim Law:

(i) The Quran: Muslims consider the ‘Quran’ as the basis of their law. They believe that the ‘Quran’ is the one, that shows the truth as distinguished from falsehood, and the right from the wrong. It is the most fundamental and sacrosanct source of muslim law. It is the Holy book for the Muslims. It contains express revelations of the Prophet which came to him through angel Gabriel.

(ii) Sunna or Hadis: Prophet made some implied revelations, which contained some holy and pious ideas. Such implied or internal revelations are believed to be made on the inspiration of God. These revelations formed part of the Sunna. In other words, Sunna means traditions of the Prophet, whatever Prophet said or did, are treated as his traditions. These traditions are the second source of Muslim Law. Sunna is the precept of the Prophet i.e rule of law while Hadis (Hadith) is tradition of Prophet i.e. saying or occurrences.

(iii) Ijmaa: When ‘Quran’ and ‘Sunna’ could not supply any rule of law for a new problem then the persons having knowledge of Muslim Law used to agree unanimously and gave their common opinion over that point. Therefore consensus of the founders of law or of the community as expressed by the most learned members is another important source of Islamic law.

(iv) Qiyas: It is collection of rules or principles deducible by the methods of analogy and interpretation from the first three sources.

(v) Custom: In the absence of a rule of law the text of any of the four sources mentioned above the customary practices has been regarded as law. Custom is not an independent source of Muslim Law. However a customary law exists in Islam either because it has got the approval of the Prophet or, has been incorporated in Ijma.

(vi) Legislation: Although Muslim law in India is not codified, yet some aspects of it have been regulated by the legislations like the Shariat Act, 1937, the Dissolution of Muslim Marriage Act, 1939 and Muslim Women (Protection of Rights on Divorce) Act, 1986 etc.

(vii) Judicial Decisions: There is not much scope for the judicial decisions as source of Muslim Law but in absence of any clear text of Muslim Law, the court may interpret rule of law according to their own concept of justice. However, judicial decision played an important role in laying down Muslim law in accordance with the socio-economic condition of the Indian Muslims. The courts has given some important verdicts in this regard.

(viii) Justice, Equity and good conscience: Like in Hindu law, here also in the absence of any specific law or in the event of conflict, the principle of equity, justice and good conscience would be applied.

4. What do you mean by Sapinda relationship? Also explain the prohibited degrees of relationship.

Ans: Sapinda relationship: Two persons are said to be Sapindas if one is a lineal ascendant of the other within the limits prescribed by the Hindu Marriage Act, 1955 — five degrees through the father and three degrees through the mother.

Prohibited Degree of Relationship: A person may be called in the degree of prohibited relationship:

(i) If one is a lineal ascendant of the other.

(ii) If one was the wife or husband of the lineal ascendant or descendant of the other.

(iii) If one was the wife of the brother or the father’s brother’s wife.

(iv) If the two are brother and sister, uncle and niece, aunt and nephew or children of a brother and sister or of two brothers or two sisters.

5. Discuss the essentials of a valid marriage under Muslim Law.

Ans: In Muslim Law marriage is defined to be a civil contract unlike Hindu Marriage where it is regarded as sacrosanct. The object of Muslim marriage is procreation and legitimization of children.

Following are the essentials of a valid marriage:

(i) Every Muslim of a sound mind, who has attained the age of puberty i.e. age of 15 years, may enter into a contract of marriage.

(ii) There should be a proposal made by or on behalf of one of the parties and acceptance of that proposal by or on behalf of the other party.

(iii) Proposal and acceptance of marriage must be in presence and hearing of two male witnesses who must be Muslims and are of sound mind and major. In Shia law witnesses are not required.

(iv) The words used in proposal and acceptance must be clear and unequivocal which can convey the intention of marriage.

(v) Neither writing nor any religious ceremony is required.

(vi) Proposal and acceptance must be reciprocal to each other i.e. to say, the acceptance must be exactly for the proposal and nothing else.

(vii) There must be consideration in terms of dower.

6. What are the grounds for divorce under the Hindu law?

Ans: Grounds for Divorce under Hindu Law:

Under the Hindu Marriage Act, 1955, divorce was introduced as a legal remedy when it becomes impossible for a couple to live together peacefully as husband and wife.

Although divorce is neither encouraged nor favored in Hindu law, it is permitted on certain specific grounds as mentioned below:

(i) Adultery: Sexual intercourse between a married person and someone other than his spouse after solemnization of marriage.

(ii) Cruelty: Conduct of such a character as to have caused danger to life, limb or health, bodily or mental pain as to give rise to a reasonable apprehension of such danger.

(iii) Desertion: Permanent abandonment of one spouse by the other without any reasonable cause and without the consent of the other or against the wish of such party. Desertion is a total repudiation of all obligations of marriage.

(iv) Conversion: if one of the spouses seizes to be Hindu by conversion to another religion, divorce may be obtained.

(v) Insanity: Where one of the spouses has been suffering from incurable unsoundness of mind or suffering from mental disorder of such a kind and to such an extent that the other spouse cannot reasonably be expected to live, divorce may be obtained.

(vi) Leprosy: Where one of the spouses has been suffering from virulent and incurable form of leprosy, divorce may be obtained.

(vii) Venereal Disease: where one of the spouses has been suffering from venereal disease in a communicable form divorce may be obtained.

(viii) Renunciation: where one of the spouses has renounced the world by entering into any religious order, divorce may be obtained.

(ix) Presumption of Death: Where a person who is not heard alive by his relations and near ones for a period of seven years or more is deemed to be legally dead. In such a case the other spouse can obtain a decree for dissolution of marriage.

(x) Divorce by mutual consent: The Hindu Marriage Act provides for divorce by mutual consent.

It has following essentials:

(a) A joint petition for divorce by both the spouses is presented to the court.

(b) The petition should state that they have been living separately for a period of one year and have not been able to live together, and that they have mutually agreed to live separately.

(xi) Irretrievable Breakdown of Marriage – When either party to a marriage presents a petition for divorce on following grounds:

(a) There has been no resumption of co-habitation for a period of one year or more after passing of a decree for judicial separation.

(b) That there has been no restitution of conjugal rights for a period of one year or more after the passing of a decree of restitution.

7. Write a short note on the Hindu Law of Succession.

Ans: Succession is a method of the transfer of property from one person to other after the death of the former. After independence we have uniform secular laws of succession for all Hindus. The old Hindu Law and customary law of succession stand abrogated. The preferential treatment of male over females has been considerably removed with the codification of the Hindu Succession Act, 1956.

The law of succession can be classified under two heads:

(i) Testamentary Succession: The property (separate, divided, undivided) devolves according to the “will” of a person who has the ownership over the property or interest in the same. It deals with the rules relating to the devolution of the property on relations as well as others.

(ii) Intestate Succession: It is based on the rules which determine the mode of devolution of the property of the deceased on heirs solely on the basis of their relationship with the deceased, when the person dies without making his will or testament.

8. Explain the distinction between the principles of inheritance under Hindu and Muslim law.

Ans:

Basis of Difference	Hindu Law	Muslim Law
1. Nature of Law	Inheritance under Hindu Law is based on both religious and secular principles — it recognizes spiritual benefit (like offering pind daan to ancestors).	Inheritance under Muslim Law is purely secular and based on Quranic injunctions; the object is just and equitable distribution among heirs.
2. Source of Law	Derived from ancient texts like Mitakshara and Dayabhaga, and codified under the Hindu Succession Act, 1956.	Based on the Holy Quran, Hadith, Ijma (consensus), and Qiyas (analogy).
3. Devolution of Property	Property devolves by survivorship (in joint family property) and by succession (in separate property).	Property devolves only by succession — there is no concept of survivorship.
4. Rights of Heirs	Under Mitakshara Law, the son acquires a right in ancestral property by birth.	Heirs get rights only after the death of the owner; no right by birth.
5. Classes of Heirs	There are mainly three classes — Class I, Class II, Agnates and Cognates (as per the Hindu Succession Act).	Heirs are divided into Sharers (fixed share) and Residuaries (get what remains after sharers).
6. Female Heirs	Earlier restricted, but after the Hindu Succession (Amendment) Act, 2005, daughters have equal rights as sons in ancestral property.	Female heirs always had rights under Islamic Law, but the

9. What are the differences on rules of inheritance between the Hindu & Muslim Law?

Ans:

Basis of Difference	Hindu Law	Muslim Law
1. Nature of Law	Hindu Law of inheritance has both religious and secular elements. It aims to secure spiritual benefit for the deceased (e.g., offering pind daan).	Muslim Law of inheritance is purely secular, based on justice and equality as prescribed in the Quran.
2. Source of Law	Derived from ancient texts — Mitakshara and Dayabhaga — and now codified under the Hindu Succession Act, 1956.	Based on Quran, Hadith, Ijma, and Qiyas.
3. Basis of Succession	Devolution takes place by survivorship (in joint family property) and succession (in separate property).	Devolution takes place only by succession; there is no concept of survivorship.
4. Right by Birth	In Mitakshara School, the son gets a right in ancestral property by birth.	In Muslim Law, heirs acquire rights only after the death of the ancestor.
5. Classification of Heirs	Heirs are divided into Class I, Class II, Agnates, and Cognates as per the Hindu Succession Act.	Heirs are divided into Sharers (fixed share) and Residuaries (who take the remainder).
6. Position of Women	After the Hindu Succession (Amendment) Act, 2005, daughters have equal rights as sons in ancestral property.	Women have always been recognized as heirs but usually receive half the share of male heirs (as per Quranic injunctions).
7. Testamentary Power (Will)	A Hindu can dispose of entire property by will.	A Muslim can will away only up to one-third of the property, and only if heirs consent.
8. Coparcenary System	Recognized under Mitakshara Law — a joint family ownership where sons acquire rights by birth.	No concept of coparcenary or joint family property. Each heir gets an individual share.
9. Principle of Distribution	Based on proximity of relationship and religious obligations.	Based on nearness of blood and Quranic justice.
10. Illegitimate Children	Traditionally, illegitimate children were excluded (though modern law gives limited rights).	Illegitimate children do not inherit, but may receive property by gift (hiba).
11. Degree of Relationship	Hindu law allows inheritance through both male and female lines, after amendments.	Muslim law also allows inheritance through both lines but follows fixed shares as per Quranic prescription.

10. Match the following according to their correct option:

A	B
(a) Sapinda	(i) Hindu Law
(b) Doctrine of representation	(ii) consensus of the founders of law
(c) Testamentary Succession	(iii) ground of divorce
(d) Desertion	(iv) devolution of property by will
(e) Ijmaa	(v) Particle of same body

Ans:

A	B
(a) Sapinda	(v) Particle of same body
(b) Doctrine of representation	(i) Hindu Law
(c) Testamentary Succession	(iv) devolution of property by will
(d) Desertion	(iii) ground of divorce
(e) Ijmaa	(ii) consensus of the founders of law

Project:

Survey your ten neighborhood families and try to gather the information about the applicability of the personal law in their daily life.

Serial No.	Various aspects of personal law	Remarks
1.	Marriage
2.	Divorce
3.	Succession
4.	Inheritance
5.	Customs

Ans:

Serial No.	Various Aspects of Personal Law	Remarks
1.	Marriage	All families follow their respective personal laws and legal procedures for marriage.
2.	Divorce	Divorce is allowed under personal laws and is granted through the legal process when required.
3.	Succession	Property is transferred to legal heirs according to the personal law applicable to the family.
4.	Inheritance	Family members inherit ancestral or personal property as per their personal law.
5.	Customs	Families follow their own religious and cultural customs in matters of family life.