CONCEPT OF FAMILY AND ITS EVOLUTION

UNDER HINDU LAW

SUBJECT: FAMILY MEDIATION AND DISPUTE RESOLUTION

SESSION: 2021-2023

SUBMITTED TO:

YAMINA RIZVI

ASSISTANT PROFESSOR

FACULTY OF LAW

SUBMITTED BY:

HANERI

LL.M (S/F)

21MLW1008

III SEMESTER
 CONCEPT OF FAMILY AND ITS EVOLUTION UNDER HINDU LAW

(BY HANERI)1

servants as well as the members connected

One of the longstanding social institutions
is family. The ancient Hindu law always by common descent or marriage.2

recognized and promoted it with full might.

Many thinkers like Locke, K.C. Davis,
This Hindu philosophy has always
Mudrock, etc. defined family in their own
considered establishing family is one of the
words.
principal duties of a man in this worldly
life. This concept of family cannot be Family is “a group of people united by the
traced back to one particular date. It exists ties of marriage, blood or adoption
in all the societies, be it tribals, rural and consisting a single household interacting
urban communities and under all religions and inter communicating with each other in
and cultures. The two most closely knitted their social roles of husband and wife;
concepts are ‘family’ and ‘marriage’. When mother and father, son and daughter;
one marries to the other, only then, they are brother and sister, creating a common
able to establish their family. Family (kula) culture.”3
is the smallest unit of any social
“Family is a group of persons whose
organisation in the country. It being the
relation to one another are based upon
most basic unit of society provides the
consanguinity and who are therefore kin to
immediate social environ to a child. A child
one another4”.
learns the social values, behavioural
patterns and norms in his childhood in the It can be said that a family is group of two

family. The etymology of family comes or more people either by birth, marriage or

from the Roman word “familus” meaning adoption living together. And all these

‘servant’. In Roman law, the word denoted people related to each other forms a

the group of producers and slaves and other

1
LL.M (3RD SEM.), Jamia Millia Islamia University, New Delhi.
2
Chapter 3 “Introducing Sociology”, NCERT available at:
[Link]
a/#:~:text=On%20the%20basis%20of%20residence,of%20his%20wife%20after%20marriage (last visited on
December 3, 2022).
3
Burgess and Locke.
4
K. C. Davis.
relationship among themselves and hence EXCERPTS FROM HINDU
are called family members.5 SCRIPTURES. The Manusmriti mentions
in it provisions related to women, family,
FUNCTIONS. The institution of family
daughter’s right, stridhan, property right,
provides for different functions which can
person’s duties towards family, etc.
be divided into two categories like,
Chapter IX lays down few duties of a man
essential and non-essential functions. The
with respect to family matters. They are
essential functions will include- sexual
reproduced as:
satisfaction; procreation of children;
residence. The non-essential functions will “1. I will now propound the eternal laws for
include- economic, social, religious, a husband and his wife who keep to the path
education, and psychological. Providing of duty, whether they be united or
residence, education, food, clothing to its
separated.
members comes under the economical
function. Social purposes would include 2. Day and night woman must be kept in
getting their children married and dependence by the males (of) their
procreating issues and in matters of death (families), and, if they attach themselves to
giving oblation to their ancestors. sensual enjoyments, they must be kept
Psychological functions would mean under one's control.
furnishing with cool and calm environment
3. Her father protects (her) in childhood,
to its members and inculcating moral values
her husband protects (her) in youth, and
like honesty, loyalty, compassion, feeling
her sons protect (her) in old age; a woman
of belongingness, humbleness etc.
is never fit for independence.
6
The functions of family can be divided into
the following categories: 1. Affectional 4. Reprehensible is the father who gives not
functions; 2. Economic functions; 3. (his daughter in marriage) at the proper
Recreational functions; 4. Protective time; reprehensible is the husband who
functions; 5. Religious functions; and 6. approaches not (his wife in due season),
Educational functions. and reprehensible is the son who does not

5
[Link] y%20is%20a,as%20members%20of%20one%20fa
care/affordable/hill- mily. (last visited on December 4, 2022).
6
burton/family#:~:text=Family%3A%20A%20famil Oghbum and Nimkoff. Supra 2.
protect his mother after her husband has The social life of the person gets its mention
died. in the Yajnavalkya smriti as well. The
following excerpts are reproduced below:
5. Women must particularly be guarded
against evil inclinations, however trifling “Society has been of special importance in
(they may appear); for, if they are not India since ancient times. The tradition of a
guarded, they will bring sorrow on two society structure had started from the Vedic
families. era itself. To build an ideal family and
society, beliefs have been laid down in the
6. Considering that the highest duty of all
Vedas.
castes, even weak husbands (must) strive to
guard their wives. संगच्छध्वं संवदध्वं संनो मनान्सस जान्नतां |

7. He who carefully guards his wife, दे वा भागं यथा पवूेेसंजानानां उपासते || “8

preserves (the purity of) his offspring,
virtuous conduct, his family, himself, and The above mentioned sholak lays portrays
his (means of acquiring) merit. the image of ideal society. Another verse of
the same says if any family member takes
8. The husband, after conception by his
up the loan for the sake of family, then the
wife, becomes an embryo and is born again
head of the family or the successor has to
of her; for that is the wifehood of a wife
pay back the debt.9 The society was
(gaya), that he is born (gayate) again by
structured in a way that at times the husband
her.
were to give loans to women of nurturers,
washermen and fowlers.10
9. As the male is to whom a wife cleaves,
even so is the son whom she brings forth;
The concept of pious obligation was very
let him therefore carefully guard his wife,
much prevalent in ancient society. The loan
7
in order to keep his offspring pure.”
would be paid back by the son or grandson

7
Manusmriti: The Laws of Manu; See also available at
[Link] [Link]
ected/[Link] (last visited on December 4, 7issue1/PartC/[Link], (last visited on
2022). December 4, 2022).
8
Pt. Baldev Upadhayaya, “Vaidik Sahitya aur 9
Yajnavalkya Smriti-Vyahavaradhyaya-45; See
Sanskriti” 40; See also, Shiva Bajpai (Tripathi) and also ibid.
Dr. Shivbalak Dwivedi, “Social life described in 10
Yajnavalkya Smriti-Vyahavaradhyaya-48; See
Yajnavalkya smriti”, 7(1) IJSR 26-128 (2021), also ibid.
if the father dies or become ill or unable to matrilocal residence, neo-local residence
pay off his debt.11 and avunculocal.

FAMILY FORMATION12. The family of The patrilocal residences are commonly

orientation differs from the family of found in the agricultural societies. Those
procreation. The former refers to the who works on farming fields. In such
family in which one is born and raised. residence the wife comes and lives with the
Whereas the latter is the family which a husband’s father’s family. Here the males
person himself creates through procreating dominate the land being the father, son,
or adopting children. The family of husband as the male is the head of the
orientation gives you values, beliefs, ethics, household and decision maker.
behaviour and morals of children, security
The matrilocal residences are mostly
and socialization. The family of orientation
found in matrilineal kinships. In this type of
is formed involuntarily as the children does
residences, the couple moves to live where
not choose their family of orientation but
the wife was raised. In such household the
the family of procreation is created by
female takes up the leads and all the work
choice. The family of orientation includes
are done under her name and authority.
the father, mother and sibling. On the other
hand, the husband, wife and children The neo-local residence is the new

constitute the family of procreation. emerging concept which majorly finds its
traces in the western part of the world
especially North American region. In such
FAMILY RESIDENCE PATTERN13. In type of residence, the couple establishes its
Hindu culture a person is deemed to belong own residence independent of his/her
to the place of his fathers’ birth. This brings family members. Both the spouses leave
us to the concept of residence of the family. heir habitual residences and establishes a
It can be categorized under following new one. This came into being because of
heads, namely, patrilocal residence, the evolving world and the need for

11 13
Yajnavalkya Smriti-Vyahavaradhyaya-50; See
also id at 6. [Link]
12
[Link] ology/Cultural_Anthropology/Book%3A_Cultural_
orientation-overview-example-what-is-family-of- Anthropology_(Evans)/09%3A_Marriage_and_Fa
[Link]#:~:text=Family%20of%20orientati mily/9.07%3A_Residence_Patterns#:~:text=There
on%20is%20the,family%20they%20grow%20up% %20are%20four%20major%20residence,Patrilocal
20in. (last visited on December 4, 2022). %2C%20Matrilocal%2C%20and%20Avunculocal.
(last visited on December 3, 2022).
supporting the finance of the husband. Both consisting of father, mother, unmarried
the gender steps out of the home in need of children, grandparents, father’s brother, his
work and raising their family status. wife, their children etc. usually there lived
more than 2 generations together under
The term avunculocal is defined as
same roof. Hence it can be said that joint
“located at or centred around the residence
family is living of many units of families
of the husband's maternal uncle”14. Here
under same roof. For the purposes of law, a
the couple lives with the man’s mothers’
family is deemed to be the joint family if it
eldest brother. This is also found in the
shares three things, namely- kitchen,
matrilineal kinships.
property and worship. Even though a family
There are two other kinds of residence does not share meals or worship, i.e., if they
patterns which exists but are not seen very live apart, they might still be considered a
commonly. They are: Ambilocal and Joint Hindu family if they share an estate16.
Duolocal. Ambilocal residence is when the The agrarian society and the rural
spouses live with one family for a while and community and religion has played pivotal
then with another spouses’ family. And role in preserving the values of joint family.
then they decide with whom they want to In such type of family, the head is the elder
live permanently. Duolocal male of the family who acts as a karta and
residence where lineage membership is so takes all the decisions on behalf of its
important to both the husband and wife that members. He is responsible for all the
even though the couple is married, they still finances of the family and keeping the joint
live apart from one another and reside with property safe and maintains its value by
15
their families . making sure not to get it affected by any

The family can be divided into two damage. He has to make sure that all the

categories on the basis of its size, namely, members are getting all their needs

joint family and nuclear family. A family is fulfilled. It is the duty of the karta to get the

considered to be joint family when the unmarried daughters married and give them

household is shared by people of many presents in their marriage. The karta have

generations. For instance, a family following powers and rights: power of

14
Marriam Webster Dictionary available at: %2C%20neolocal (last visited on December 3,
[Link] 2022).
15
[Link]/dictionary/avunculocal#:~:text=%3A Supra 4.
16
%20located%20at%20or%20centered%20around,u Rukhmabai v. Lala Laxmi Narayan and
ncle%20compare%20matrilocal%2C%20patrilocal Rajagopal v Padmini, 1960 AIR 335, available at:
[Link]
management; right to income; right to living together the lack of adjustment and
representation; power of compromise; feeling of bitterness developed among them
power to refer a dispute to arbitration; which led to the contradictions in
power of acknowledgment; karta’s power ideologies. The sexual autonomy was not
to contract debts; power of alienation. The granted to fuller extent. The newly married
joint family system acts as an agency of couples are always engaged with the family
social control. It is for the karta to look after members and not able to come close hence
all the members the joint family and ensure leading to sexual tension between them.17
that they amalgamate with the society As during the daytime, they have to attend
easily and develop the community feelings to the family matters and needs of the
and are well behaved in their conduct and members. There is constant tussle between
upholds the dignity of the family in the the elder members and young ones of the
society. The joint family is termed as family because of the generation gap. The
matriarchal in the northern part of India and elders are seeming to be resistant to the
is dominated by men. The main feature of changes brought up by the modern world in
the joint family is that the eldest male day-to-day lifestyle and they tend to stick to
member is the head of the household and is the old traditional views of the Hindu
the decision maker. the women are not system.
allowed to go out for work and are restricted
When families started to grow in number
within the four bounds of the family. their
with people stepping out of the home for
work is to provide food and nurture the
work, they tend to establish their own
children and take care of the members in the
matrimonial homes or new residences.
most possible affectionate way. They are
Those who left their homes in villages for
neither allowed to take part in financial
work were not willing to go back to their
matters nor were consulted in the same.
ancestral home. And hence formed their
With this there were few drawbacks of the
own house in their place of work and get
joint family system. For instance, there is
married there. This gave birth to the new
no individual autonomy in terms of growth
structure of family called nuclear family
and likes and dislikes. The karta takes the
which consists only of husband, wife and
decision on behalf of its young members.
their children. The nuclear families existed
Because of the large number of people

17
Lecture notes on Family in India; available at: womens-studies/the-family-in-india-lecture-notes-
[Link] 3/21718119 (last visited on December 4, 2022).
muslim-university/theoretical-perspectives-in-
in the ancient India as well but that was not grandparents and other senior relatives in
the norm back then. They grew in number children's development. In nuclear
over time and now is the integral party of families, both parents may work outside
the modern Indian society. The main reason on occasion. As a result, children
for booming of such nuclear families was experience a great deal of isolation and
the industrial revolution as it fastened the anxiety. They must rely on servants,
growth. The western culture impacted the housekeepers, playschools, and other
Indian society to great extent. Lack of formal child-care institutions. In many
entertainment and recreational activities cases, this results in emotional strain and
pushed people outside the joint family. emotionally vulnerable personalities,
though most children learn to cope
“Among the nuclear households the
and develop an attitude of independence
following features are reported: (1) Small
and individualism as a result of this.”
size of the household facilitates greater
freedom and independence to the members. The family can also be classified on the
(2) Sense of individual responsibility is basis of the power or authority. The one
greater in such households in comparison who dominates the family decides the type
to the joint household. (3) In the urban of construct of the family. It can be called
context, nuclear households have become as patriarchal or matriarchal. If the father
economically more viable for the holds the authority and is the source of all
prosperous middle classes. Nuclear power, then it is called a patriarchal
households are supposed to promote more family. He exercises absolute power over
adaptability to cope with crisis the family members. In this family, descent
situation in the contemporary context. is known through father’s side. When the
Modern facilities like insurance, son is married, his wife comes to the family
banking and medical clinics have of husband’s father. Hindu Joint family is
made the traditional security and care
the classic example of patriarchal family.
offered by joint households less
attractive to the prosperous professional When all the power vests in the female i.e.,
classes. 5) However, nuclear families have the mother and she is the head of the family,
both negative and positive aspects from it is called matriarchal family. she owns
the perspective of children. the family property and is the decision
Psychologists and social scientists have maker. She holds absolute power over all
long recognised the importance of the members of the family. the descent is
traced through mother. The husband time. With the increase of divorce cases in
remains subordinate to his wife. Some the country, the percentage of single
examples of matriarchal system are family mothers have notably increased. Earlier,
are Nayars of Kerala; among the Garo and there was no decision-making powers to
Khasi tribes of Assam. women in the traditional family setup but in
the contemporary times, females have a
The Indian family system saw major
huge participation from educating their
transition in its structure and values. One of
children and their basic upbringing to
the most classic and unique features of the
setting budget for expenditure. Both
families in ancient India was the Hindu
husband and wife take active participation
Joint family system.
in work to curb the problem of poverty.
The financial freedom gave young adults Women being legally, economically and
the sense of independence from their educationally more empowered are walking
families. The females of the family started shoulder to shoulder with men in every
working in the corporate sector with the aspect of life. Gradually the authoritative
males. This sense of financial independence power has shifted from the karta of the
weakened the authority of the elder family to family in general in aspects of
members in the family18. decision making. With time children have
also started to discuss their problem with
The western culture influenced the structure
parents rather than fearing the punishment
of the family from joint to nuclear. The fast-
they might get if they open up in front of
moving society of the western world
them. The role of women has now become
attracted the Indians in matters of
more expressive whereas husband plays an
entertainment and recreational activities.
instrumental role. It will not be justiciable
The urban living weakens the joint family
to say that the husband/male dominant
pattern and gave strength to nuclear family.
families turning into women centric or
Nuclear family system has now replaced
equalitarian family.
the traditional Indian joint family system.
This has led to individualism. The concept Industrialization19 and a longingness for
of ‘couple only’ families has increased over better standard of living led to migration to

18
Puja Mondal, “Recent changes in the Family 19
Discuss the changing nature of families in India.
system in India”, available at: What are the main reasons behind it? available at:
[Link] [Link]
changes-in-the-family-system-in-india/30751 (last changing-nature-of-families-in-india-what-are-the-
visited on December 3, 2022). main-reasons-behind-
urban areas from rural areas. This has not might affect their marriage. The most
only engraved a gap among the families but noticeable change has been brought in the
has also affected the traditional joint family Hindu Succession Act, 1956 by conferring
system. Along with industrialization, equal rights on women in inheritance by
urbanization has also played a leading role virtue of Amendment 2005. Special
in uprooting the joint family system in Marriage Act, 1954 has also permitted to
India. Urbanization has prioritized privacy the freedom of mate selection and marriage
and individuality to an extent where the in any caste and religion without the
urban population now refrains from the parent’s consent.
kinship ties.
The system of family and marriage has its
Education is considered to bring a positive very special meaning and functions.
change in the society but it has adversely Although basic features of families are
affected the joint family system. If we same. However, it does differ from
rationalize it in terms of attitudes, beliefs, community to community, religion to
values and ideologies, we can see a religion, society to society. Nowadays
considerate change among both males and families have become more couple centric.
females. As in usually phenomenon of nuclear
family more common. Joint families on the
Western culture has influenced our society
other hand are diminishing at an increasing
in many ways. Some of which may be seem
rate. To this date family it’s basic feature of
by spread of individualism, ideas of liberty
protection, care and love and shelter. It is
and equality and materialistic behaviour.
important to note under Hindu law marriage
This has collectively changed thinking of
has been made a scared concept. Hence
individuals leading to a tremendous change
family deriving from That is obviously
in the nature of joint living.
sacred too. Family is basic building unit of
The age of marriage has changed and society. With the changing dynamics of
people have freedom to select their society, the meaning of family is also
respective partners, has weakened the changing. Family is nowadays is more
patriarchal control over the family. People centred to husband and wife and child. Or
are no more concerned with the social more western style of husband and wife/
pressure and other external forces that wife and wife/ husband and wife.

it/#:~:text=The%20Hindu%20succession%20Act% 's%20consent (last modified on December 21,

2C%201956,religion%20without%20the%20parent 2020).
Indian society and law are becoming more
accepting of western concept as well. Also,
procreation which was necessity for a
family has started to become a mere
formality. It is not so prevalent is India yet
or under Hinduism. But with the
increasingly globalisation and self-centred
behaviour of human beings this is our future
too.