What do you understand by a fiction of law?
Ans. Fiction of law—Sir Henry Maine, the great exponent of Historical school (of England) says that the law is brought into harmony with social needs by three instrumentalities—legal fiction, equity and legislation which appear in the historical order in which they are enumerated.
To hold a thing to exist which does not exist in fact is a fiction. A thing is assumed to exist only to meet certain needs in the social development which necessitates certain changes in the law; but when the change in law is not desirable and expedient, certain assumptions are made on the basis of which the law assumes certain things to exist which do not exist in reality and thus adopts itself to circumstances. Such legal assumptions are fictions.
Fiction is a device to extend new rules to old situation, to new circumstances with a minimum of intellectual effect. A legal fiction is very useful agency of development of law to suit intricate and knotty situations.
The illustration.of legal fiction in the law of adoption in India is the “Theory of relation back”. Under the old Hindu law, a female had no right to adopt. Exception was, however, given to widow who could adopt if she was authorized by her late husband or other person incharge of the family. Where a widow adopted a son, he became the son of her deceased husband. By a fiction of law the son was related back to the date of the death of the adoptive father. Thus the adopted son was deemed to be adopted by his late adopted father before his death, and he must divest every other inferior heir in whom the property had vested after the death of athiptive father. In Krishnamurthy v. Dhruvaraj, AIR 1962 SC. 59, the widow adopted a son after 63 years of the death of her husband, and property had descended to three generation. The Supreme Court held that as the son was deemed to be in existence by a legal fiction, hence he was a preferential heir and would alone inherit.
Section 6 of the Hindu Succession Act also provides a legal fiction under the Explanation I attached to this section. There is a fictitious partition between the members of Mitakshara coparcenary whenever a member dies leaving a female heir or his daughter’s son.
Two kinds of fiction—lhering divides fictions into two classes-
(1) Historical and
(2) Dogmatic.
(1) Historical fictions—They are the devices for adding new law to old without changing the form of the old law; such fictions have had their field of operation largely in the domain of procedure and have consisted in pretending that a person or a thing was other than that which he or it was in truth for the purpose, thereby given an action at law to or against a person who did not really come within the class to or against which the old action was confined.
(2) Dogmatic fictions—Fictions of this type do not add new law under the cover of old, as the historic fictions do. They only arrange recognised and established doctrines in the most convenient way. Idols and corporations have their personalities due to dogmatic fictions.
