Some of the most prominent Smriti are Dharmashastras which includes Manusmriti (200BC-200CE); Yajnavalkya Smriti (200-500CE); Naradasmriti (100BC- 400CE); Visnusmriti (700-1000CE); Brhaspatismriti (200-400CE); and Katyayanasmriti (300-600CE). The phrase “source of law” has several connotations. The term Hindu is derived from the name of River Indus, which flows through northern India.In ancient times the river was called the Sindhu, but the pre-Islamic Persians who migrated to India called the river Hindu knew the land as Hindustan and called its inhabitants Hindus. The concept of coparcenary originated from ancient Hindu jurisprudence and became an essential feature of Hindu law. It is the supreme power of the state over all its people and territories. This book seeks to delineate the historical development of Dharmaśāstra, even though the tradition presented dharma as timeless and ahistorical. As mentioned by Brihaspati, there were four kinds of tribunals, namely, stationary, movable courts held under the royal signet in the absence of the King, and commissions under the King's presidency. If the Indus valley civilization (3rd–2nd millennium BCE) was the earliest source of Hindu traditions, then Hinduism is … Manu says that “The Vedas, Smriti, the approved usage, and what is agreeable to one’s soul or good conscience, when there is no other guide the wise have declared to be the quandruple, direct evidence of Dharma or law. Macaulay’s definition of sedition was not as broad as the pre-1832 English law of seditious libels. Within the Hindu laws, all the laws and provisions regarding the property and its rights have always been male orientated. In the King's Court the King was advised by learned people like Learned Brahmins, the ministers, the Chief Justice etc. Google Classroom Facebook Twitter. It has been agreed by JD Mayne that Hindu law has the oldest pedigree of any known system of jurisprudence in the world. Sources of Hindu Law: A critique “ Hindu law has the oldest pedigree of any known system of jurisprudence, and even now it shows no sign of decrepitude.”- Henry Mayne. III, Chap. The history of Hinduism . Sources of Hindu Law-The importance of understanding the source of a law is based on the fact that a rule, which is not traced to any source, is alien to the legal system. They include the'rajadharma' or the duties and obligations of a king to organize court, listen and examine witnesses, decide and enforce punishment and pursue justice. Hinduism is a collective term applied to the many philosophical and religious traditions native to India. In villages, the village councils (Kulani) dealt with simple civil and criminal cases. As the Hindu Codes do not profess to embody the commands of any king on Earth, it might seem that the Hindus had never such a thing as could be called their law. Also, they provide the rites and duties of kings and court proceedings. This was same for the whole of India, notwithstanding the existence of larger and smaller kingdoms and the supremacy of Dharma (law) over the kings as declared in the authoritative texts was respected in letter and spirits/[4] Thus there were no absolute monarchies. Manusmriti, Yajnavalkya Smiriti and the Smritis of Vishnu, Narad, Parashar, Apastamba, Vashisht, Gautam, etc. [4] The doctrine of "king can do no wrong" was not accepted and the king himself was subjected to law. This article discusses the ancient and modern sources of Hindu Law through a concise overview and depiction of the various origins of such laws. Hindu law has a very old origin. A mere intermeddler is not a de facto guardian. The business of Joint Hindu Family is controlled under the Hindu Law instead of Partnership Act. The British adopted the modern law or the English legal system and replaced the existing Indian laws except for family or personal lawsin matters such as … Ans. The long history of Supreme Court decisions in Indian law has cemented several guiding principles. How…. Common Law: World and Indian Legal System Origin of Common law Before the Norman Conquest in 1066, justice was administered primarily by county courts presided by the bishop and the sheriff, exercising both criminal and civil jurisdiction. The profession of lawyers or advocates were unknown during this period. According to Hindus, Hindu law is of divine origin, having been derived from Vedas, which are revelations from the Almighty and which Austin calls the laws of God. Jurisprudence – 1 1st Semester 1st Year CCSU Important Question. Moreover, these cases established the place of Indian nations in the American dual sovereign structure … “Since law is the king of kings, far more powerful and rigid than they, nothing can be mighter than the law by whose aid, as by that of the highest monarch, the weak may prevail over the strong”. The article will look into the meaning, types, and grounds of divorce in India. These Vedas chiefly dealt with religious duties, practices and customs. No doubt, Hindu law cannot strictly be said to have been promulgated by any Sovereign. Macaulay. Origins of the Word Hindu. that ancient India had some sort of legal system in place even during the Bronze Age and the Indus Valley civilization. History of the law of inheritance. Hindu law is considered Apauruseya. The State exercises its sovereign power through its laws. The first is the âchâra, which provides rules on daily rituals, life-cycle rites, as well as specific duties and proper conduct that each of the four castes or varnas have to follow. It has to do this because in spite of itspretence to secularism, the Indian Constitution allows Muslims, Christiansand Parsis a separate Personal Law. Dharmasutra (the first four texts of the Dharmashastra) discuss the rules for duties for all the ashrama: the student-hood, the house holdership, the retirement or forest dwelling, and renunciation. It extends to the whole of India except the State of Jammu and Kashmir. Explain the origin and nature of Hindu Law. India’s Constitution does notgive a definition of the term Hindu, but it does define to whomthe “Hindu Law” applies. But in as much as Hindu law is a body of principles or rules recognised and allowed by the Sovereign to govern the subjects and inasmuch as what a Sovereign can alter can be taken to have been impliedly commanded by him, even Hindu law can be said, in a qualified sense, to have been promulgated by the Sovereign within the definition of Austin. The King's Court was the highest court of appeal as well as an original court in cases of vital importance to the state. It not only includes laws and court procedures, but also a wide range of human activities like ritual purification, personal hygiene regimes, and modes of dress. Gupta Dynasty. Sources of Hindu Law: A critique ... can believe in the 'divine origin’ of Hindu law, unless he has a motive behind such profession of belief or has not read the Smritis or is ready to believe anything and everything with slavish infidelity.” According to Justice Markandey Katju, Hindu law does not originate from the Vedas (also called Shruti). Background Divorce under Prehistoric Hindu laws is considered as… Read More » Hindu Law. The first view believes it to be of ‘divine origin’ whereas according to the other view it is based upon immemorial customs and usages. It is the storehouse of ancient wisdom, inherited from holy, sages, saints, philosophers and thinkers whose ideas were derived from imperishable Vedas and who can literally be described as the torch-bearers of learning and knowledge to the rest of the world as it then existed. …traditional Chinese marriage, in the Hindu marriage based on the joint family, in rabbinical law, in Islamic law, and in Germanic and Celtic customary law. This book seeks to delineate the historical development of Dharmaśāstra, even though the tradition presented dharma as timeless and ahistorical. However Wills were well known to the Mohammedans and contact with them during the Mohammedan rule, and later on with the European countries, was probably responsible for the practice of substituting informal written or oral testamentary instruments with formal testamentary instruments. Hinduism's early history is the subject of much debate for a number of reasons. XI, 288-289, A. Schimmel, Islam in the Indian Subcontinent, Leiden, 1980, Courts of judicial magistrate of first class, Courts of judicial magistrate of second class, National Judicial Appointments Commission, http://www.cbseacademic.in/web_material/doc/Legal_Studies/XI_U3_Legal_Studies.pdf. The Smruti consist of moral and ethical rules. Mayne defines Hindu Law “as the law of the Smritis’ as expounded in the Sanskrit Commentaries and Digests which, as modified and supplemented by custom, is administered by courts”. It not only includes laws and court procedure… It is one of the most ancient system of law known to the world. It was prudent statesmanship to uphold the system of castes and orders of Hindu society, with their rights and duties so as to prevent any subversion of civil authority. The third category is called the 'prâyaschitta', which lays down rules for punishments and penances for violating the laws of dharma. This refers to the laws of physics regulating the forces of nature. Their belief is decided by the sets of laws. Kluwer Law Online (UniMelb staff & student access) includes full text e-books on Indian law in the following subject areas: Ashrama are the four stages of life that include: Brahmacharya (the student life), Grihastha (the householder), Vanaprastha (the forest dweller), and Sanyasa (the renouncer). Halsbury's Laws of India on LexisNexis Advance (UniMelb staff & student access) is a comprehensive online encyclopaedia of the Law in India, arranged alphabetically by topic.It contains commentary, and cites relevant legislation and significant cases. India’s Constitution does not give a definition of the term Hindu, but it does define to whom the “Hindu Law” applies. origins of Hindu law in priestly codes, Dharmaas religious law and the controversy over religion and secularism in the courts today. Ancient India represented a distinct tradition of law, and had a historically independent school of legal theory and practice. Hindu Law is a personal law within the Indian region. This section begins with the idea of Hindu law and traces its origin through the ancient legal literature. Dharmashastra contains three categories or topics. State is sovereign. They accepted these usages with or without modifications rejecting only those which were incapable of being assimilated, such as, polyandry, incestuous marriages and the like. One significant feature of the ancient Indian legal system was the absence of lawyers. [8][9], In the 17th century, the Mughal Empire's sixth ruler, Aurangzeb, compiled the Fatawa-e-Alamgiri with several Arab and Iraqi Islamic scholars, which served as the main governing body in most parts of South Asia. The concept of coparcenary originated from ancient Hindu jurisprudence and became an essential feature of Hindu law. Hindu law is supposed to be of divine origin, being derived from the Vedas, which are the revelations of the Almighty Himself. According to Edward Roer and W.A. The ultimate aim of life, according to Hindu law is to achieve salvation or Moksha from the physical world. They did not purport to be exhaustive and, therefore, provided for the recognition of the usages which they had not incorporated in later Commentaries and Digests. Sovereignty is its exclusive and most important element. Hindus Who have Changed Their Religion-It is a general principle of law that a person who has accepted a religion cannot rely on a custom opposed to that religion. The Hindu Law of Inheritance (Amendment) Act, 1929 The Hindu Marriage Disabilities Removal Act, 1946 The Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 The Hindu Widow's Re-marriage Act, 1856 The Hindu Women's Rights to Property (Extension to Agricultural Land) Act, 1943 As per this theory, law was independent of the State and it was binding on the Sovereign as well as on his subjects. Hindu law. When person is in mother’s womb under Hindu Law for many purposes equivalent to born child. Family courts were also established. The word Hindu is a secular word and literally translated it means Indian and the word Hinduism denotes any religion or religions that are practiced by the multitude of people living in the land beyond the river Indus. [1][2] Dharma consists of both legal duties and religious duties. Hinduism has neither a specific moment of origin nor a specific founder. The Hindu law found a solution to this problem by according legal status to de facto guardians. Hinduism is a collective term applied to the many philosophical and religious traditions native to India. P.V. The daily rituals include practices about daily sacrifices, the kind of food to eat and how to obtain them, and who can give and who can accept religious gifts. In this video,we have discussed the Introduction of Hindu law. Dharma provided the principal guidance by which one endeavored to lead his life. The second source is called Smriti, which literally means 'as remembered' and refers to tradition. What is the difference between will and gifts? B. Hindu law, in modern scholarship, also refers to the legal theory, jurisprudence and philosophical reflections on the nature of law discovered in ancient and medieval era Indian texts. Another notable feature was that a bench of two or more judges was always preferred to administer justice rather than a single individual being the sole administrator of justice. During the Vedic period the legal procedures including that of filing case were called vyavahara. [4][5], In ancient India, Naman was regarded as the fountain of justice has to act as the lord of Dharma and was entrusted with the supreme authority of the administration of justice and his foremost duty was to protect the rights of his subject. Discuss the partition according to Mitakshara law ? The Anglo-Hindu Lawwas evolved from the classical Hindu law during the British rule in India from 1772 to 1947. The Germanic traditions were imported into England, where they combined with Norman concepts to become … Requisites of a Valid Adoption: Who may Adopt, Who may give in Adoption and Who can be Adopted. The history of Buddhism. Nature of Hindu Law.—According to jurists of modern Europe, “Law is the command which, the sovereign power, in a political society, imposes on subject or members of the society. Though the recorded history of law starts only in the Vedic period, it is widely believed[by whom?] But the secular nature of the acts have been modified to suit the religious preferences of a Brahmin community. [citation needed]. PRACTITIONERS OF HINDU LAW: ANCIENT AND MODERN. The origin and growth of Will amongst the Hindus is unknown. Legitimate Expectation Cannot Prevail Over Policy, Which Does Not Suffer From... What are the role of Delegated Legislation in India ? In course of time, the term Hindu has been associated with religion. The Government of the State is basically machinery for making and enforcing laws. Legal definition of “Hindu” 3.1. So long at least as Hindu Kings occupied the throne of the Hindu community, the Brahmins enjoyed supreme legislative power, and the commands imposed by them were generally obeyed”. Empires in India. [3] It postulated that everybody from the king to the lowest of society is bound to fulfil his/her duty towards the society. The Statutes codifying the Hindu law enacted post independence era include (a) The Hindu Marriage Act 1955 (b) The Hindu Succession Act 1956 (c) The Hindu Minority and Guardianship Act 1956 and (d) The Hindu Adoptions and Maintenance Act 1956. In order to deal with problems among members of artisanal class, traders etc. Etymologically, the term 'Hindu' was applicable to all the inhabitants of India irrespective of caste and creed. The origin and growth of Will amongst the Hindus is unknown. The Dharmasastras asked the kings to look upon the people as God (Praja Vishnu) and serve them with love and reverence. The life-cycle rites are the rituals that are conducted on important events in one's life like birth, marriage, and tying of the sacred thread. Manusmriti, Yajnavalkya Smiriti and the Smritis of Vishnu, Narad, Parashar, Apastamba, … In a way, this separate treatmentof different communities merely continues the communal autonomy of castesand sects accepted in pre … The Hindu Law is believed to have a divine origin from God-Almighty and not from the Legislature, statute or Bill. There are two extreme views as regards the origin of Hindu Law. The Maurya and Gupta Empires. I. Acharas also provide rules for duties for all the ashrama. The concept of Hindu law is deeply rooted in the Hindu philosophy and Hindu religion. The foundation of Hindu law is the voluminous textual tradition called Dharmaśāstra, the expert tradition on dharma. Family law Law notes Law Preview text Class Notes on Family Law 1 UNIT I (1st Sem 3 year LL.B) Family Law Hindu Law UNIT I Revision Study Notes for LL.B Introduction of the Hindu Law Concept of Dharma Hindu Law is a body of principles or rules called Dharma according to Hindu texts embraces everything in … The Dharmshastris and the rulers were therefore in close alliance and, if the laws were not substantially in accordance with popular usages and sentiments it seems inconceivable that those most interested in disclosing the facts should unite in a conspiracy to conceal it. It does not have any separate and distinct legal entity from that of its members. It is believed that Hindu law is a divine law. It is the supreme power of the state over all its people and territories. This project endeavors to analyze briefly all the important aspects of testamentary succession under Hindu law. Thus, where a Hindu converts to Mohammedanism he will be, as general rule, governed by the Mohammedan Law. Other issues that are Dharmasutras cover include rules about one's diet, crimes and punishments, daily sacrifices, and funeral practices. The appeal system was practised and the King was the highest body of appeal. Hindu law, though believed to be of divine origin, is based essentially on immemorial custom and many of the acts of the people which were purely of a secular nature. Mayne in his “Hindu Law and Usage” recognised this fact when he says, “Hindu Law has the oldest pedigree of any known system of jurispudence and even now it shows no sign of decrepitude. They are understood to remove the sin of committing something that is forbidden. Sources of Mohammedan Law – (a) The Koran (voice of God; paramount authority) (b) The Hadis (actions and sayings of the Prophet) (c ) ijma … It may be the authority which issues rules of conduct which are recognized by Courts as binding. These texts were often used for legal judgments and opinion. The main aim of the law in the Vedic period was to preserve "dharma" which means righteousness and duty. With a desire to promote the specia… It has to do this because in spite of its pretence to secularism, the Indian Constitution allows Muslims, Christians and Parsis a separate Personal Law. The First Law Commission prepared the draft of the Indian Penal Code which was chaired by Thomas Babington Macaulay in the year 1834. The first orthodox view on the origin of law was gradually modified to certain extent, and the conception of ‘positive’ as distinguished from `divine law’, presented to us by the commentators have now generally been accepted as the origin of Hindu law. Practice: Empires in India. trade guilds were authorised to exercise an effective jurisdiction over their members. Dharma consists of both legal duties and religious duties. Hinduism, major world religion originating on the Indian subcontinent and comprising several and varied systems of philosophy, belief, and ritual. The sources of law during this period were Sruti, Smriti and acharas (customs). Classical Hindu law is a category of Hindu law in traditional Hinduism, taken to ... Because of their divine origin, the texts were passed orally through the generations by a select group of people who were granted the power to interpret the texts into more tangible laws. Before the advent of the Hindu succession act 1956, people were governed by customary laws which varied from region to region and also differentiat… But it must be conceded by everyone who knows anything of the mechanism of our soceity that the Brahmins were the real rulers of the country. It is said that all Hindu Law originated from the Vedas (also called Shruti). This is the currently selected item. It is as old as humanity itself. They were exclusively framed for the benefit of the men of the family while women were always considered submissive. Hindu law is considered Apauruseya. The King's Court was the highest court, next to which came the court of the Chief Justice (Pradvivaka). Within the Hindu laws, all the laws and provisions regarding the property and its rights have always been male orientated. They were mostly composed under the authority of the rulers themselves or by learned and influential persons who were either their ministers or spiritual advisers. Sruti consist of the 4 Vedas namely Rigveda, Yajurveda, Samaveda and Atharvaveda. Some believe that the rule of law has purely formal characteristics, meaning that the law must be publicly declared, with prospective application, and possess the characteristics of generality, equality, and certainty, but there are no requirements with regard to the content of the law. The guardian occupies a fiduciary position and is bound, for instance, to manage the property of the minor with the same here and prudence with which he would manage own property. Ancient India represented a distinct tradition of law, and had a historically independent school of legal theory and practice. Part one provides a concise overview of the literary genres in which Dharmasastra was written with attention to chronology and historical developments. Second, the United States owes a duty of protection to Indian nations and tribal members akin to a common law trust. [1] The various stages of evolution of Indian law is classified as that during the Vedic period, the Islamic period, the British period and post independence. The originating sources of Hindu Law are the ‘Shruti’ and ‘Smruti’. his traditional law, sometimes called the law of his religion, subject to the exception that any part of that law may be modified or abrogated by statute”. Montriou, "Of the above list, twenty are in Yájnavalkya's list: seventeen of these are named by Paráśara, viz. The most basic natural law is to remain in harmony with its fellow creatures and the universal. However, in fact this a fiction, and in fact the Hindu law really emanated from books called the Smritis e.g. The Oxford Dictionary of World Religions, https://en.wikipedia.org/w/index.php?title=History_of_Indian_law&oldid=989168484, All Wikipedia articles written in Indian English, Articles with specifically marked weasel-worded phrases from April 2018, Articles with unsourced statements from August 2019, Creative Commons Attribution-ShareAlike License, This page was last edited on 17 November 2020, at 13:05. An isolated or fugitive act of a person in regard to child's property does not make him a de facto guardian. Section 113 of this draft made it an offence to “excite feelings of disaffection against the government”. The Laws of Manu (also called the Manava Dharma Shastra) is traditionally accepted as one of the supplementary arms of the Vedas.It is one of the standard books in the Hindu canon and a basic text upon which teachers base their teachings. The history of Indian law in the Supreme Court opens with the Marshall Trilogy—Johnson v. M’Intosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1831); and Worcester v. Georgia, 31 U.S. 515 (1832). Meaning of Joint Hindu Family Business: The Joint Hindu Family Business is a distinct form of organisation peculiar to India. Since the Indian "legal" tradition is so integral a part of the religious and philosophical ideas of the Hindu tradition, it was inevitable that it would be exported to Southeast Asia when that region became "Indianized" (a process lasting for centuries, but beginning in the early centuries of the common era). INTRODUCTION. Its ancient frame-work is the law of the Smritis, which declare the rules of Dharma. Brahmanism modified the current customs by introducing the religious element into legal conceptions firstly, by attributing pious purposes to purely secular acts; secondly, by adding restrictions to those acts suitable to those pious purposes; and thirdly, by altering the customs themselves so as to further the special objects of religion or policy favoured by Brahmanism. According to the learned author, “Wherever the laws of India admit operation of a personal law, the rights and obligations of a Hindu are determined by Hindu law, i.e. Law in India primarily evolved from customary practices and religious prescription to the modern well codified acts and laws based on a constitution. Magne says, “Hindu law has the oldest pedigree of any known system of Jurisprudence and even now it shows no signs of decrepitude“. The original draft of the IPC was drawn up in 1837 by the Indian Law Commission headed by T.B. [6] The ancient Hindu social structure and its continuance in modern times is, to a great extent, outcome of the Hindu philosophy and religion. Through pointed studies of important aspects and topics of dharma in Dharmasastra, this comprehensive collection shows that the history of Hinduism cannot be written without the history of Hindu law. Trial by the jury began in these courts. The law of India refers to the system of law across the Indian nation. Joint Hindu Family Firm is created by the operation of law. [12], Administration of Justice During Vedic Period. The main aim of the law in the Vedic period was to preserve "dharma" which means righteousness and duty. Law: Meaning, Features, Sources and Types of Law! In comparison with modern law, the classical Hindu law was a peculiar legal system as it followed a unique arrangement of law and polity with a unique scheme of values. What are the powers of a Hindu executor or administrator of the estate of a deceased Hindu ? It is said that all Hindu Law originated from the Vedas (also called Shruti). Each law is a formulated will of the state. Vasista Dharma Sfitras, X 30. To make a person a de facto guardian some continuous course of conduct is necessary on his part. It is the result of the long penance and meditation of archaic peers and sages. In what way has the Hindu Law of Gifts been abrogated…, 30 Spot the Error With Detailed Explanation, Spot the Grammatical Mistake/Error in Sentence – 2, Sentence Rearrangement to Form a Meaningful Paragraph – 7, Sentence Rearrangement to Form a Meaningful Paragraph – 6, Geography General Studies 1 Mains 2019 Previous Year Questions, General Studies Paper 4 Syllabus for UPSC CSE, General Studies Paper 3 Syllabus for UPSC CSE, General Studies Paper 2 Syllabus for UPSC CSE, Sasural mein Jamaai – Pehle aur Ab – Joke. First, Congress has plenary power in the exercise of its Indian affairs duties. NATURE AND ORIGIN OR HINDU LAW : Historically the term 'Hindu' is of foreign origin. The second topic enumerated in the Dharmashastra is the 'vyavâhara'. Define ” Indeminty” and explain its essential element.
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