Sources Of Hindu Law Ancient And Modern Pdf
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- Sources of Hindu Law
- Sources of Hindu Law
- Ancient and Modern Sources of Hindu Law: A Concise Overview
- Hindu law notes
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Sources of Hindu Law
India is a country that has abundant personal laws, each community has its own personal law. The Hindu, the majority community have separate family law, so have Muslims, Christians, Jains, Sikhs. Hindus and Muslims have since time immemorial maintained that their laws are of divine origin. However, no such claim is made by other communities. The modern Hindu law, by judicial interpretation and legislative modification, has undergone a dramatic change, so much that any claim of divinity can hardly prevail.
In some cases, the custom is still allowed to prevail. So the first question arising in our mind is that who is a Hindu?. Whether it includes a person who claims to be called Hindus or who is a resident of India?
The term Hindu was used by Persians to denote people beyond river Indus. India at that time was populated by followers of Vedas and hence the term referred to a certain set of people who live in India and followed Vedas and Hinduism. But eventually, as time passed, various new religions started to emerge on the land of India and which resulted in the presence of people of various religions and ethnicities in India.
Presently, there are at least nine recognized religions that make it difficult to define Who is Hindu. One of the reasons for this difficulty is that the Hindu religion is so diverse and multifaceted that the definition of the term Hindu in terms of Hindu religion is almost an impossible task. So, to tackle this problem, our legislature has provided a straight jacket kind of formulae that defines and categorizes the Hindus.
This scheme of the legislature can be seen in various legislations. It includes in its ambit:. So, after pursual of this definition, it becomes evident that the legislature has crafted a very wide definition that technically includes people of other religions also. Also, it may be noted that if a person is Hindu by birth or conversion, this would suffice, even though in actual persuasion he may be atheist, non-religious, non-conformist, anti-religious or even decry his faith. So long he does not give up his faith and embrace a new religion, he continues to be a member of that religion.
Sources of Hindu law, in any case, can not be circumscribed to a particular book or person. Hindu law is vast, so is its sources. Sources of Hindu law can be classified into various subheads. Sources of Hindu Law. Traditional sources refer to those ancient Hindu legal system which governed the conduct of Hindus in that particular time.
The traditional source of Hindu law is the guiding principle in the present system also along with some modifications. So according to the traditional source of Hindu law, there are 4 sources of Hindu law, which are as follows:.
Shruti means something which has been heard. In theory, it is considered as a supreme and paramount source of Hindu law and is believed the language of gods through the sages. It is believed that sages have reached such a height of spirituality that they were informed about Vedas by some divine order.
Brahmins are considered as a guide to Vedas. Some people believe that Vedas contain laws and code of conduct while others believe that laws have to be inferred from Vedas.
Vedas provides rights and duties, Forms of marriage, the requirement of a son, partition, and exclusion of women from inheritance but these can not be regarded as clear cut laws. Also, society was divided into varnas Brahmin, Kshatriya, Vaishya, Shudra and life was divided into various ashrams Brahamchayra, Grihastha, Vanaprastha, sannyasa.
The concept of karma was also evolved during this time. It was believed that a person will be rewarded as per his karma. It is assumed that the Vedic period existed between to BC. During this time various pre smrities and Gathas were composed. Technically smrities mean those works which are created by the virtue of memory of sages. The basis of smrities is shruties. Smrities can be referred to as a step ahead of smrities. There are two types of smrities viz Dharamsutras and Dharamshastras.
There is a very thin line of difference between the two. The basic difference lies in the fact that dharamsutras are written in the form of prose, in short maxims while dharamshastras are written in the form of shlokas poetry.
There are many Smriti writers and it is impossible to determine how many authors are there of smrities. This Smriti is the earliest and most important of all. It does not define a code of conduct in India but also in various other countries such as Jawa, Sumatra, Bali, etc. The name of the author of manusmriti is unknown as the author has formulated it under a hypothetical name of Manu, who was considered to be the first human.
Maybe it was done to gain divine and authoritative status. Manusmriti is a compilation of all presmrities and gathas. Manu was a brahmin protagonist and was harsh on women and Shudras.
He holds customs to be of utmost importance and asks the king to follow customs and he cloaked the king with divinity. During earlier stages commentaries were based on smrities but in the later period, the works were like digests containing various smrities and explaining and reconciling various contradictions.
The evolution of different schools of Hindu law is a result of these digests and commentaries as these digests and commentaries are interpretations of the Smriti and hence the difference of opinion is bound to occur. Owing to this reason, different schools of Hindu law emerged. It was only after AD, most of the work was done only on the existing material given in Smrtis.
The work done to explain a particular Smriti is called a commentary. Commentaries were composed in the period immediately after AD. Digests were mainly written after that and incorporated and explained material from all the smritis. Some of the prominent commentaries include Manubhashya, Manutika, and Mitakshra. Mitakshara is one of well known and supreme source of law in India. Dayabhaga and Mitaksara are two main sources of Hindu law in India.
The main objective of these texts is to gather the scattered material available in the form of smrities and shruties and to compile it in a more comprehensive form for the betterment of society. Thus, these were much logical and to the point in their approach. Custom can be defined as those crystallized practices which are followed by a community or group of people for a considerable period, which now has become a governing norm in that particular society or community.
It means those established practices are being followed for a considerable period. Custom is also a principal source of law and its position is next to shruties and smritis.
It is superior to written law. Most Hindu law is based on the customs and it is recognized as a legit means of a source of law even in smritis also. Customs can be classified into 4 types:. The words customs and usages are often used interchangeably but there is some sort of distinction between the two. Usage is the repetition of acts while custom is a law or general rule that arises from such repetition. A usage may exist without custom but custom can never exist without usage.
Usage derives its authority from the parties to the transaction but custom where existing is binding on the parties. Modern sources of Hindu Law. Modern sources of Hindu law refers to those sources which are comparatively new sources that emerged over time and evolved in the present form. Following are the main source of Hindu law:. Equity means being fair and implies fairness in dealing.
Impartiality is the main attribute of modern judicial systems. True justice can be delivered through equity and good conscience. Where no rule is given, unreasonableness would prevail. Sometimes it happens when a problem comes before the court for resolution, it cannot be settled by prevailing laws.
Such a situation may be rare but might occur. In such a situation, courts can not refuse to provide a remedy, and also they are under obligation to decide such a case. In such cases, the courts are guided by the principle of reasonableness, basic values, and fair play.
So this principle is known as equity, justice, and a good conscience and it is also known as Natural law. This principle of natural law was prevalent in India since the British era. So wherever conflict arises in the interpretation of Hindu law this principle is used by the courts either to formulate a new law or to carry forward existing laws. The legislation is an act of parliament that plays an important role in the formation of Hindu law.
The legislation is often regarded as a tool for social change. The legislation provides a base and authenticity to the laws.
After the independence of India, there has been a steep increase in legislation regarding the codification of personal laws. After codification, any point dealt with by the codified law is final. The enactment overrides all prior law, whether based on custom or otherwise unless an express saving is provided for in the enactment itself.
In matters not specifically covered by the codified law, the old textual law contains to have application. In modern society, this is the only way to bring in new laws. The parliament, in accordance with the needs society, constitutes new laws. For example, a new way of performing Hindu marriages in Tamil Nadu that got rid of rituals and priests was rejected by the SC on the basis that new customs cannot be invented. However, TN later passed an act that recognized these marriages.
Examples of legislations include the Hindu marriage act,, Hindu succession Act, Hindu minority and guardianship act, Hindu adoption and maintenance act, etc.
Sources of Hindu Law
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Ancient and Modern Sources of Hindu Law: A Concise Overview
A Hindu is an adherent of Hinduism. It is believed that Hindu law is a divine law. It was revealed to the people by God through Vedas. Various sages and ascetics have elaborated and refined the abstract concepts of life explained in the Vedas. The sources of Hindu law are ancient as well as modern.
Hindu Law is believed to be divine law. It had been revealed by God through Vedas to the people. The abstract principles of life outlined in the Vedas had been expanded and refined by various sages and ascetics. People living on the Indian subcontinent have led their lives by following the guidelines and concepts provided in the Vedas for thousands of years.
This article discusses the ancient and modern sources of Hindu Law through a concise overview and depiction of the various origins of such laws. It also talks about the pattern of lineage in carrying these laws and the continuous time frame, culture and customs that have been essential factors in promoting and abolishing the inherent causes of it. A Hindu is an adherent of Hinduism. The personal laws which governed and are even now governing the social life of Hindus such as marriage and divorce, adoption, inheritance, minority and guardianship, family matters, etc. It is believed that Hindu law is a divine law.
India is a country that has abundant personal laws, each community has its own personal law. The Hindu, the majority community have separate family law, so have Muslims, Christians, Jains, Sikhs.
Hindu law notes
Hindu law is a very old law which is about years old, Hindu are the people who follow the religion of Hindu according to section 2 of the Hindu marriage act Hindu includes Buddhism, Jain, Sikhs or does not include Muslims, Jews, Parsis etch are called Hindus. According to Manu Hindu has two types of sources: an ancient sources of Hindu law and modern source of Hindu law. Let us understand one by one;. It actually implies what has been heard. In principle, it is the essential and foremost wellspring of Hindu law and is accepted to be the language of the perfect disclosure through the sages. The equivalent of shruti is Veda.
These sources can be divided into Four categories-. It is believed that the rishis and munis had reached the height of spirituality where they were revealed the knowledge of the Vedas. The brahamanas are like appendices to the Vedas. Vedas primarily contain theories about sacrifices, rituals and customs. Some people believe that Vedas contain no specific laws, while some believe that the laws have to be inferred from the complete text of the Vedas. Vedas do refer to certain rights and duties, forms of marriage, requirement of a Son, exclusion of women from inheritance and partition, but these are not very clear cut laws. Many sages from time to time, have written down the concepts given in Vedas.
It may be the authority which issues rules of conduct which are recognized by Courts as binding. It may mean the social conditions which inspires the making of law for the governance of the conditions Sources of Hindu Law: A critique. It may mean the social conditions which inspires the making of law for the governance of the conditions. It may also mean in its literal sense the material from which the rules and laws are known. It is important to study the sources of law because in every personal legal system only that rule is law which has place in its sources. A rule not laid down or not recognized in the sources is not a rule in that legal system.
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Hindu law is considered to be the most ancient and prolific law in the world. It has been around every phase. It is about years old. Hindu law has been established by the people, not for the purpose of removing any crime or transgression from society but it was established so that the people will follow it in order to attain salvation. Originally Hindu law was established so that the need of the people gets fulfilled. The concept was initiated for the welfare of the people. It is a foreign origin.