Evolution of Anglo Hindu law throughout the British era

NATIONAL LAW UNIVERSITY OF ODISHA

TOPIC: EVOLUTION OF ANGLO HINDU LAWS THROUGHOUT

BRITISH ERA
SUBMITTED BY: Jai Raj Meena
B.A. L.L.B | Semester I

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 Evolution of Anglo Hindu law throughout the British era

TABLE OF CONTENTS

Table of Contents
Table of Statutes.........................................................................................................................

ACKNOWLEDGMENT............................................................................................................

RESEARCH METHODOLOGY...............................................................................................

OBJECTIVES............................................................................................................................

SCOPE OF RESEARCH...........................................................................................................

CITATION METHOD...............................................................................................................

Introduction................................................................................................................................

Anglo-Hindi Law Sources..........................................................................................................

The Hindu law and its development...........................................................................................

Development of codified law.....................................................................................................

Warren Hastings Judicial Plan of 1772..................................................................................

Colebrook’s Two Schools of Law..........................................................................................

William jones plan..................................................................................................................

Case laws....................................................................................................................................

The Hindu Widow's Remarriage Act of 1856......................................................................

The Native Convert's Marriage Dissolution Act 1866.........................................................

The Child Marriage Restraint Act of 1929...........................................................................

The Hindu Married Women's Right to Separate Residence and

Maintenance Act of 1944.....................................................................................................

Judicial Committee of the Privy Council.................................................................................

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 Evolution of Anglo Hindu law throughout the British era

Are laws from British India are still applicable.......................................................................

Quest for legitimacy.................................................................................................................

Summary..................................................................................................................................

Bibliography.............................................................................................................................

Table of Statutes

 Hindu Widow Remarriage Act, 1856, No. 15, Act of Parliament,

1856 (INDIA).
 Native Converts Marriage Dissolution Act,1866, Act of Parliament,
1866 (INDIA).
 The Child Marriage Restraint Act, 1929, Act of Parliament, 1929
(INDIA).
 The Hindu Married Women Right to Separate Residence and
Maintenance Act, 1946, No. 19, Act of Parliament, 1946 (INDIA).

RESEARCH METHODOLOGY

The project has been prepared through the doctrinal method of research.
The researchers have referred to various sources and have taken help of
both primary as well as secondary sources such as government reports,
books, journals and internet webpages. No empirical data through field
work has been used for this project. Some of the own views, findings, ideas

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 Evolution of Anglo Hindu law throughout the British era

and opinions of the researchers will be brought out. They are not generally
of authoritative importance and are correct.

OBJECTIVES

1. To discuss the development of Anglo Hindu laws.

2. To critically analyse and review Anglo Hindu laws.
3. To understand the provisions of the Act and research into its lasting
effects on the Indian population.
4. To analyse the impact and applicability of Anglo Hindu law on India

SCOPE OF RESEARCH

The project is going to analyse the evolution of Anglo Hindu law

throughout the British\ era which Is divided in to two phases
1st phase (1772-1864)
2nd phase (1865-1947)
and to understand its importance with respect to the British Raj,
reflect upon the issue, the reasons and the history Anglo Hindu law.

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 Evolution of Anglo Hindu law throughout the British era

CITATION METHOD

The literal meaning of citing is to acknowledge the author, article, journal,

book and another source from where references have been taken for the
research work. The citation format adopted in this research project work is
the 20th edition of the BLUEBOOK. The citation is uniform throughout.

Introduction

Hindu law is one of the oldest and longest legal system. It was mostly based
on ancient sources like dharmasastras ¸ yajnavalkya, and etc. They were
most followed and applied law of because it deals with proper conduct and
legal procedure. it provides list of various documents, witnesses in respect
with legal procedures. dharmasastras was enforced by most of the
authorities and followed by large portion. It was all before coming of
Britishers, after their entry new legal system came into existence followed
by old one which is modern law followed and developed in British era
known as Anglo Hindu law. First introduced on august 21, 1772 in Calcutta
(Kolkata). It was the part of judicial plan framed by later governor general
Hasting warren. It was introduced to end the “dual system” which was
followed earlier. Through this hasting got succeed in laying down judicial
plan and principles of British courts. So, it will be easy for both government
and citizens also so, they can be treated with law which was familiar to
them. It was applicable to whole territory of British India. Anglo Hindu
legal system development was divided into two phases

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 Evolution of Anglo Hindu law throughout the British era

In first phase (1772-1864), where ancient Hindu source of law and its
textual interpretation was decoding by British court with the help of Hindu
Pandits appointed by the Britishers for better understanding and on basis of
Anglo Hindu law, as Hindu pandits were experts in ancient Hindu
law sources. No one other than them were as much capable of
understanding it as much they were. Then in its second phase (1864-1947)
during which whole focus is laid on scripting interpreted work which was
very important task. They started writing it down after interpreting it and
with modification which suits to conditions and accordance with Britishers
at that time and the Hindu gurus/ pandits along with other spiritual leaders
were removed and were excluded in this process because of different
ideologies and interpretation of texts which were conflicting in nature and
were suspicions of corruption.it proved to be beneficial for both as both
government and citizens can rely one single thing there would be uniformity
between them which will make procedures and process smooth and hassle
free., it also provided speedy justice to accused and punishment to wrong
doer, they can be treated with law which was familiar to them so, there were
very less chances of mistake and doing wrong justice . In implementing it
properly and for uniformity in law the Indian Parliament has overturned
most traditional Hindu laws with modern laws such as marriage laws,
inheritance laws, minority laws, and retention laws. Anglo Hindu law was
mostly based on outcomes rather than religious texts. which was written and
interpreted so it could be understand by majority.
In it starting the East India Company was merely a trading company which
have not at all interest in governing and ruling India but due to
circumstances and carelessness they Immediately took over India as
political and administrative power. They haven’t confronted much
resistance at the initial stage because they were relied upon local kings and
governors and have orders of the crown which made it very easy for them to

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 Evolution of Anglo Hindu law throughout the British era

establish them and start making laws. The Britishers in starting exercised
power in accordance with rulers to avoid interference and any other
problems and also so they can adapt local law practices for the local
intermediaries. Hindus and other non-Muslims, the code of Anglo Hindu
law was not available as Muslim law which was readily available to
Muslims. This information was unavailable because it was not extracted by
others in the earlier phase.
The early days of Anglo-Hindu law (1772-1828) were based on Islamic
legal practices. It also contained some extracted portions of a legal section
from Dharmasastras.
At the end of the first phase, the arrival of William Bentinck to Colonial
India as The Gov. general of India marked a dramatic change toward a
universal civil code and administration, stressing the importance of a similar
law for all living beings fair with equal treatment.
In 1848, Gov. Dalhousie continued his tendency, having declared that now
the legislation must "treat all Indian people in exactly the same way. A
string of British acts was adopted around 1828 to 1855 to revise the Anglo-
Hindu law, as well as those dealing with widow remarriage, religious
conversion, and also the right to draught wills for inheritance, among other
things. Britishers began developing a universal criminal code to put it in the
place of previous criminal code, which was a composite mix of rules from
both the Quran (Islamic source of law) and the Shastras (Hindu source of
law).

Anglo-Hindi Law Sources

As gradually more source emerged, and interpreted, we will get to find more
about it. I have noticed while looking at sources for this assignment that

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there are so many sources and mostly Talk about same thing but all are
different in nature and tells them in different way which creates conflict
between them. every author has added extra text or different description of
situation but most of them has used smriti as a source to extract elements of
Anglo Hindu law.
As new source was discovered like Nardasmriti and Mitakshara, conflicts
started arising between as they were from smritis which was difficult to
resolve. Geographical differences in the scripts made it more complex. Even
now also we will find that most of the sources like smritis and other
scriptures is still codified which makes it very difficult to interpret it.
Mostly all religious scriptures were taken as source of law and from all of
them small part modern law is extracted. And then it was finalized which
was best among all and suits in present situation. But it has to be mentioned
that Dharma sastras is considered most scared source of law from Vedas
which is considered as eternal and unchangeable.

The Hindu law and its development

Hindu legal code and its development is done within a wide time of two
hundred years, starting from 1772 till 1947. It is divided into two important
phases.
 The first phase, starting from 1772 and last till 1864is known for its
main proponents what consists of
1. the codification of the dharma sastras by the scholars
appointed by the Britishers
2. taking help from pandits to define laws and rules, they
guided Britishers so they can interpret it correctly and

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3. Tremendous increase of cases.

 The second phase, from 1864 and till 1947, is characterized by
1 the removal of court pandits, so there would be minimal
conflicts between Britishers and Pandits
2 Sudden increase in the legislative powers and process of
codification of law system

Development of codified law

In this section we will discuss about different methods of codification and

development of law.

Warren Hastings Judicial Plan of 1772

Warren Hasting was fixed as the governor by the new Parliamentary Act in
1772 and was appointed by the Board to stabilize the government of Bengal
territory. Before that also he had visited colonial India many times in
different roles. So, he had very good understating of colonial India and of its
functioning. He introduced the judicial plan of 1772. His plan is for better
control on Bengal by using British officers known as "collectors."
Collectors are assigned to defined areas with state borders, which are a mix
of administrative and judicial branches. He was a man who knew the locals
over there and represented the power of law and order. He was considered
the face of the British government. Hasting build two courts. One court
dealt with civil proceedings and income and was called the Mufsil Dewani
Adalat. The other court dealt with criminal law expounded Muslim law
where collector was supervisory body only and was called the Mufsil
Faujdari Nizamat Adalat. Collector proved facts based on testimony,

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primarily testimony, and acted as a judge when the documentation was

submitted to Adalat. His assistant (Dewan) and his experts have founded a
law which best fits and applies to that case. Legal experts and professors of
law interpreted the code in legal documents and made definitive decisions
about the applicable code. This was the base of Anglo-Hindu law
development.

Colebrook’s Two Schools of Law

According to Colebrook, each school had a fixed "doctrine", so British

judges needed to access for the reasons and arguments, each school
supported its own doctrine. When Indian scholars were unable to provide
supporting literature, European methods were implied. The code came into
force after William Jones announcement on providing unique laws to
Hindus through the arbitration of British judges with the help of court-
appointed experts. Over time, the British sought consistency, creating case
law (the doctrine of precedent).

William jones plan

In 1787, Jones formulated India's judicial administration plan, which shows

the principles of Indian jurisprudence. He envisioned a complete
compendium of Hindu and Islamic laws on the topics of contract and
property. His idea was to find and to create the “Hindu civil code” and
subjects related to property and the transfer of property. In 1788, He took
government help, Jones devoted the rest of his life to what would become
the "Standard of Hindu Contracts and Inheritance Law". Before his last
breath, he compiled his work “Digest” in Arabic and Sanskrit and began
translating it into English which is most common and widely used language

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in the world. These are just a few of the many efforts that have attempted to
translate and extract meaning from the scriptures (which are considered
ancient sources of law) to better understand and implement Hindu law.

Case laws

Hindu law has systematized by the EAST INDIAN COMPANY officials in

many ways: the enactment of various laws based on argument rather than
text, translation and case laws. what becomes the most powerful legal
source in India as the country has the ultimate jurisdiction in case of sources
of conflict. Among these case law plays crucial and important role in the
process of development of Anglo Hindu law because they help to decide
new laws or we can say most suitable laws according to present situation.
for Examples when we go through to the ancient source of law, we will find
most of laws are not suitable in present day situation and they were written
couple of hundreds year ago which is not relevant and we will also notice
that we will also see that many new situations have arrived over last couple
of decades which requires new law, which is not present in ancient source of
law.
Here are some cases which played significant role in the development of the
Anglo Hindu laws through British era: -

• Hindu Widow Remarriage Act 18561: A widow may remarry

under certain circumstances.
• Native Converts Marriage Dissolution Act 1866 2: Allows Hindu
converts to convert to Christianity in order to dissolve their
marriage.

1
Hindu Widow Remarriage Act, 1856, No. 15, Act of Parliament, 1856 (INDIA).
2
Native Converts Marriage Dissolution Act,1866, Act of Parliament, 1866 (INDIA).

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• The Child Marriage Restraint Act 19293: Restrictions on Marriage

of Children under a Specific Age.
• The Hindu Married Women Right to Separate Residence and
Maintenance act 19464: Grants rights to married Hindu women.
•
We will try to examine each case in short and simple language.

The Hindu Widow's Remarriage Act of 1856

It was enacted on July 26, 1856, it has Legalized the remarriage of Hindu
Widows across India under the regime of the BRITISHERS EAST India
COMPANY. It was written by Lord Dalhousie and approved by Lord
Canning before the uprising of 1857. It was the first major reform after sati.
Before this act widow remarriage in Hindus were not allowed because
Hindu upper caste society thinks it as a part of their family honour and
property of family and considered it against their family honours. They even
don’t allow adolescent to remarriage and they letting their whole life get
wasted.
Ishwar Candra Vidyasagar was one of the prominent campaigners for this
issue.
It is promulgated as follows:
1. No marriage entered into between Hindus shall be null and void, and
such concluding such marriage shall not be invalid, as a matter of fact is
a woman who is married or engaged to another deceased person in the
country. such a time of marriage, in spite of all customs and
interpretations contrary to Hindu law.

3
The Child Marriage Restraint Act, 1929, Act of Parliament, 1929 (INDIA).
4
The Hindu Married Women Right to Separate Residence and Maintenance Act, 1946, No.
19, Act of Parliament, 1946 (INDIA).

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2. To maintain or inherit all rights and interests in the property of her

deceased husband, by inheritance to her husband or his heirs through
lineage without special permission for remarriage, or any orders or
wills given to her, with only limited interest in these assets, with no
right to shun them, shall terminate. terminated upon her remarriage and
shall then determine as if she were dead; and subsequent heirs of her
deceased husband or of others who shall inherit the property upon his
death, shall then succeed him.
3. Except as set forth in the preceding three sections, a widow cannot, by
reason of remarriage, lose any property or any right to which she would
otherwise be entitled, and any widow who remarries has the same right
of inheritance as 'she had, if such a marriage was her first.

The Native Convert's Marriage Dissolution Act 1866

This law deals with matter relating to the divorce and among Christians in
India Laws regulating the effects of conversion from one religion to another
on a previously contracted marriage. This act provides the dissolution of
such marriages under certain conditions such as –
A native husband/wife converts their religion for Christianity, and if in
consequence of such change his native wife/husband, for the continuous
time of six months, desert or repudiate themselves, then they can file
litigation for divorce.

The Child Marriage Restraint Act of 1929

It was passed by the Imperial National Law Council of India on September

28, 1929, setting the marriage age for boys to 18 and the marriage age for
girls to 14. After India's independence in 1949, the number of girls was

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changed to 18 and the number of boys was changed to 21 in 1978. Widely

known as the Shada Act, the law came into force on April 1, 1930, six
months later, and was the result of India's social reform movement for the
entire British India. Despite strong opposition from the British authorities,
the law was passed by the British Government of India, which is the
majority of the Government of India.

The Hindu Married Women's Right to Separate Residence and Maintenance

Act of 1944

A bill giving married Hindu women the right to separate residence and
maintenance under certain circumstances. Where appropriate, it provides
the right to them for separate residence and maintenance.
Why separation and maintenance are necessary. Notwithstanding
customs or laws to the contrary, married Hindu women are entitled to
separation of residence and livelihood from their husbands for one or
more of the following reasons:
• If husband suffers from a disgusting disease not transmitted from
her.
• If her husband is so cruel to her that it is unsafe or undesirable
for her to live with him.
• If husband commits a breakout, leaving her without her consent
or against her will.
• if husband marries again.
• Abandoning Hinduism as a result of his conversion to another
religion.
• He leaves his concubine at home or lives with him permanently.
• or for any other cause.

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However, a married Hindu woman does not have the right to separate
residence and maintenance from her husband if he or she converts to
another religion and does not become a Hindu or does not comply with
an order of a competent court without sufficient reason for Restoring
marital rights. The court decides how much a husband owes his wife.

Judicial Committee of the Privy Council

It served as the Supreme Court of Appeal for British India. Located in

London, the Privy Council is dedicated to the allure of India and covers
most of the British Empire. As far as India is concerned, the Council has
succeeded in introducing and integrating their concepts and principles into
the Anglo Hindu legal system. After the freedom of India from Britishers.
The supreme court of India emerged and took place of federal court of
India replacing It.

Are laws from British India are still applicable

Yes, we can see that there are so many laws still applicable in India which
owe their origin from British India. We will find that not only personal laws
but many other laws are also still applicable in India for example
 Criminalisation of homosexuality
 Sedition law
 Personal laws

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and etc.
they still play significant role in modern Hindu law and keep on
developing According the requirements. They are still being in use and
very large number of cases are related to personal laws. This Hindu
Private Law, or Modern Hindu Law, is a continuation of the Anglo-
Hindu Law developed in British colonial India. Modern Hindu law is
based on multiple sources like legislation, case laws, notable legal
precedents and Hindu code bill.

Quest for legitimacy

It was completely impossible for the Indians to believe their opinion on

this matter. This opinion is based on an authority that can only be
accessed through translation, and the doctrine itself is the reason for its
support. In the 19th and 20th centuries, Hindu law was complex. The
British made a lot of changes and created a structure in which all Hindu
laws should be considered highly orthodox.
The most common manifestation of Indians accepting the principles of
Anglo Hindu law: -
 The first justification of is that the Hindu law does not attempt to
deny their foreign origin. But indorse them, principles of equity,
justice and good conscience for instance is accepted by some
because they incorporated basic law anywhere in the world, and
therefore also applicable in India.
 The application of the doctrine by the courts of justice in British
India does not depend for its authority.
 The basis of all law in India is British law, which consists of British
common law and court law and the decisions of its courts. However,

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the principles learned from these sources have in many cases been
modified to apply to the conditions most suitable for India.
Therefore, the main source from which Indian jurisprudence is
derived can still be called India. As it is changed according to needs
of Indian which is best suitable for them.
In last I want to say it depends on Indian’s attitude toward Anglo
Hindu law and their angle from which they view it. which was
totally different from person who are in legal practice.

Summary

Anglo-Hindu law was born in Calcutta on August 21, 1772, when the
Bengal government adopted “A Plan for the Administration of Justice in
Bengal” (usually referred to as the Judicial Plan) framed by Orientalist
Governor (later Governor-General) Warren Hastings. Seven years after the
Mughal emperor had granted the East India Company the diwani (revenue
collection) of the provinces of Bengal, Bihar, and Orissa, Hastings was
bringing to an end an initial “dual system” of government, and assuming
full British control. Hastings was particularly concerned at the chaotic state
of the court system and of the administration of law. In addition to setting
up a pyramid of British courts, the Judicial Plan laid out principles on which
judgments were to be rendered. These were the foundation of Anglo-Hindu
law, which was to evolve to meet further concerns of the colonial
administration.

Bibliography

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 ROSAN ROCHER, HINDUSIM AND LAW 78-88 (Timothy Lubin

et al., Cambridge University Press 2012).
 Hindu Widow Remarriage Act, 1856, No. 15, Act of Parliament,
1856 (INDIA).
 Native Converts Marriage Dissolution Act,1866, Act of Parliament,
1866 (INDIA).
 The Child Marriage Restraint Act, 1929, Act of Parliament, 1929
(INDIA).
 The Hindu Married Women Right to Separate Residence and
Maintenance Act, 1946, No. 19, Act of Parliament, 1946 (INDIA).

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