PROJECT ON

EVOLUTION AND SOURCES OF FAMILY AND FAMILY LAW

SUBMITTED TO
DR. ASHISH SINGHAL SIR

SUBMITTED BY
NIKHIL RAJA
ENROLLMENT NO. 20FLICDDN02140

ICFAI LAW SCHOOL,

THE ICFAI UNIVERSITY, DEHRADUN
 INDEX

1. FAMILY
2. TYPES OF FAMILY
3. FEATUSRES OF FAMILY
4. EVOLUTION AND SOURCES OF FAMILY
5. FAMILY LAW
6. SOURCES OF FAMILY LAW
 ACKNOWLEDGEMENT

At the very outset, I would like to thank all those who were the ‘guiding lights’
behind this project. First of all I would like to take this opportunity with esteem
privilege to express my heartfelt thanks and gratitude to my course teacher Dr
Ashish Singhal Sir, Subject Family Law, for having faith in me in awarding me this
very significant project topic of such importance. His consistent supervision,
constant inspiration and invaluable guidance have been of immense help in
carrying out the project work with success. Next, I would like to thank my
colleague’s for lending me a helping hand during the shaping up of the project;
subsequently I would like to thank my university for allowing me to avail the
computer lab and internet facilities without which this project would have been in
a distant realm. I extend my heartfelt thanks to my family and friends for their
moral support and encouragement. I also take this opportunity to thank all those
people who contribute in their own small ways but fail to get a mention.

Name of Student Enrollment no.

NIKHIL RAJA 20FLICDDN02140
 Family

Family is the foundation of society. The progress and development of the society depends
on sound family development. Family is the basic unit of social organization in all-human
societies. Since prehistoric times, families have served as the primary institution
responsible for raising children, providing people with food and shelter, and satisfying
people‘s need for love and support.

The term family generally refers to a group of people related to one another by birth,
marriage, or adoption, in contemporary society, people often apply the word family to any
group that feels a sense of kinship (family connection).

EVOLUTION OF FAMILY

The evolutionary approach to the family is concerned with the interests and
preferences of individuals seeking to form families and of family members—
fathers versus mothers, grandmothers versus granddaughters, close versus
distant kin. It complements the economic approach by asking how preferences
came to be rather than taking them as given. Economists opt for parsimony by
inferring preferences from choices influenced by prices and incomes. In
contrast, the evolutionary agenda is concerned with predicting, say, the
altruism of mothers versus fathers or parents versus children.

There are several trends in family behavior that can arguably be ascribed to
gender or age differences in preferences, and evolutionary thinking can help
explain and predict these differences. Most studies of allocation of
consumption in households, for instance, show that children do better when
mothers are given more control over household expenditures (e.g., Lundberg,
Pollak, & Wales, 1997). Accounts of private transfers over the life cycle show
that more money usually flows from older to younger family members rather
than vice versa (Lee & Mason, 2011). Studies of family formation show that
men and women place different weights on traits like looks and earning
potential in evaluating a marriage partner (e.g., Fisman, Iyengar, Kamenica, &
Simonson, 2006). Bequest data indicate that closer relatives receive larger
inheritances (Hartung et al., 1976).
Incomes and prices are capable of explaining only a portion of these findings.
Family behavior differs by characteristics like gender, age, and relatedness,
even controlling for pecuniary influences. The goal of the evolutionary
approach is to understand how and why the preferences of family members
came to be the way they are.

Family Law and its Sources

Family law is the area of law that addresses family relationships. It includes creating family
relationships and breaking them through divorce and termination of parental rights. This law
addresses adoption, contested custody of children, etc. There are five broad sets of family laws
in India, namely Hindu law, which governs all Hindus, Buddhists, Jains, and Sikhs, Muslim law
for the Muslims; Christian law for the Christian; Parsi law for the Parsis and secular law, i.e. the
Special Marriage Act. The religion-based laws are derived from religious texts. These laws have
also been amended from time-to-time by Parliamentary legislation.

Sources and Schools

There are many sources and schools for the explanation of the concept of laws in different
religions. Some of them are given below:

Sources of Hindu law can be classified into two heads

Ancient Sources

According to Manu, there are four sources of Hindu law i.e.

Shruti

Shruti is believed to contain the precious words of God. The shruti mainly consists of four Vedas
(namely the Rig Veda, the Yajur Veda, the Sama Veda and the Atharva Veda), six Vedangas and
the eighteen Upanishads.

Smritis

It contains those portions of the shrutis which the saints forgot in their original form and then
they wrote in their own way with the help of their memory. Thus, it is based on shrutis. The
smritis are divided into two kind’s viz. Dharamasutras and Dharamshastras

Commentaries and Digests

Commentaries (Tika or Bhashya) and Digests (Nibandhs) covered a period from 600 AD to 1200
AD. The commentaries professing and purporting to rest on the smritis explained, modified and
enlarged the traditions recorded therein to bring them into harmony and accord with prevalent
practice which is suitable with the time.

Customs

It is regarded as the highest ‘dharma’. It is explained by the judicial committee and signifies a
rule in a particular family or in a class or district. Custom is a principle source and its position is
next to the shrutis and smritis but usage of custoCustoms are divided into several parts:

1. Local customs

2. Class customs

3. Family customs

Characteristics of customs needed to declare them valid are:

1. It must be ancient.

2. It must be certain and free from ambiguity.

3. It must be reasonable.

4. It must be continuous.

5. It must not be opposed to public policy.

6. It must not be opposed to any law.

Modern Sources

The modern sources of Hindu law are given below:

Justice, Equity and Good Conscience

When any dispute comes before a court and which cannot be settled by the application of any
rule from any available sources, then the principles of justice, equity and good conscience
would be applied. For example, case of Gurunath V. Kamlabai (A.I.R. 1955 S.C. 206).m prevails
over the smritis. Precedent

The doctrine of precedent was based on the principle of treating like cases alike.

It is called to be a source of Hindu law in two senses, which are as follows:

1. All the important principles and rules of Hindu law have now been embodied in case
law.

2. It is a source of law in the sense that by the process of judicial interpretation doctrines,
principles and rules of law stand modified and altogether have been introduced in the body of
Hindu law.

The decisions of Privy Council are binding on all the lower courts in India except where they
have been modified or altered by Supreme Court, whose decisions are binding on all courts,
except for itself.
Judicial Decisions

Judicial decisions on Hindu law are sometimes taken as a source of law. In the law reports, all important
points of Hindu law are to be found. Sometimes, the decisions on Hindu law have superseded the
commentaries.

For example: case of Shri Krishna Singh V. Mathura Ahir, (1981) 3 S.C.C. 689. Legislation

Legislative acts of Parliament play an important role in formation of Hindu Law. After independence,
Hindu laws important aspects have been codified. For example, the Hindu Marriage Act, 1955,

he Hindu Adoptions and Maintenance Act, 1956, The Hindu Succession Act, 1956, The Hindu Minority
and Guardianship Act, 1956, etc.

Schools of Hindu Law

The Vedas and Smritis are the most reliable source of laws in India, but they are not easy to understand.
So many scholars in India wrote commentaries, which led to the development of these schools.

There are two main schools of Hindu Law:

Mitakshara School

It is named after the commentary called Mitakshara written by Vijnaneshwara on Yajnavalkya Smriti. It is
applicable to whole India excluding the State of Assam. In case of Rohan V. Lakshman 1976, it was held
that the effect of Mitakshara School is so strong that it also applies to even undescribed subjects in
Bengal and Assam.

It is the orthodox school which is divided into four sub-schools:

1. Banaras sub-school

2. Mithila sub-school
3. Maharashtra sub-school

4. Dravida or Madras sub-school

Dayabhaga School

The Dayabhaga School is mainly found in Bengal and Assam. It is not a commentary on any
particular code but is a digest of all the codes. It was written by Jimutavahana in 12th century. It
is the reformist school of Hindu law. The succession of property in this school is based on
spiritual principles. The person who earns maximum peace and religious profit for the soul of
deceased by performing 'Pindadaan' is the successor of the property in this school. On the basis
of succession, his property shall devolve among his heirs, in case of death of a Hindu person.
The coparcenary evolves after the death of the father.