Hindu Law Introductory Part
Hindu Law Introductory Part
Origin of Hindu law: There are two views as regards the origin of Hindu
law.
According to the first view it is of “divine origin” while the other states
that Hindu law is based upon “immemorial customs & usages”.
According to the first view since High Court is derived from revelation
from one god it binds the sovereign as well as his subjects law is the
king of the kings nothing can be mightier man the law by whose did the
weak may prevail over the strong.
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The second view of Hindu law is based upon immemorial customs and
usages but this is not correct publications of the criminal textbook
along with the commentaries and digest and Research there in have
shown the above views as incorrect. Jurist of the modern times says
that since the theory of 'law as the command of sovereign' does not fit
in with Hindu law it is not a law but one should remember that so long
as the Hindu King occupied the Throne of Hindu community the upper
class enjoyed the legislative power and commands issue by the
member were generally oveyed.
Application of Hindu Law: The term ‘Hindus’ denotes all those persons
who profess Hindu religion either by birth from Hindu parents or by
conversion to Hindu faith.
In the Yaganpurus Dasji v/s Muldas AIR 1966 SC
The supreme court accepted the working formula evolved by Tilak
regarding Hindu religion that 'acceptance of Vedas' with reverence
recognitions of the fact that the number of Gods to be worship at large
that indeed is the distinguished feature of Hindu religion.
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Sources of Hindu Law:
The phrase sources of law has several cannotations.
It may be the authority which issues rules of conduct which are
recognized by Courts as binding.
In this context ‘source of law’ means the ‘maker of law’
It may mean the social conditions which inspires the making of
law for the governance of the conditions in this context it means
cause of law.
It may also mean in its literal sense the material from which the
rules & laws are known.
In this sense the expression means the evidence of law & it is in
this sense that the expressions sources of law accepted in
jurisprudence.
2. Smrities :
The word ‘Smriti’ is derived from the root ‘Smri’ meaning
‘to remember’ traditionally Smrities contain those the sages forgot in
their original form & the idea whereby they wrote in own language with
the help of their memory.
Thus, the basis of the Smrities is Shruties but they are human burns.
There are two kinds of Smrities i.e.
i. Dharm Sutaras (mini magazines)
ii. Dharm Shastra (long Verses/ श्लोक)
There subject matter is almost same. the difference is that the Dharm
Sutaras are written in prose in short magazines (Sutaras) and the
Dharam Shastra are composed the poetry (Shlokas).
However, occasionally be find Shlokas in Dharam Sutaras and Sutaras in
the Dharam Shastras. In a narrow sense the word 'Smriti' is used to
denote the poetrically Dharm Shastras.
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The number of Smriti writers is almost impossible to determine but
some of the noted Smriti writers innumerated by Yajnavalkya (says
from mithla & the major figure in the Upanishads) are Manu, Atri,
Vishnu, Harita, Katyayana, Brihaspati, Parashar, Viyas, Shank, Daksh,
Gautam, Shatapapa, Vasishtha etc.
The rules laid down in Smrities can be divided into three categories:
i. Achar (relating to majority)
ii. Vyavhar (signifying procedural & substantive rules which the king
or the state apply for settling dispute of adjudication for
commission of a wrong)
iii. Prayaschit (signifying the Penal provisional for the commission of
a wrong)
Notes
i. Manu Smriti: It is an important and foremost Smriti of the world.
It has 12 chapters, 8 chapters describe 18 titles of law which
includes both Civil and Criminal law promenant among which are
law of Inheritance, Contract, Property, Master-Servant
relationship and defamation.
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3. Custom:
Custom is regarded as the 3rd source of Hindu Law
from the earliest period custom (Achara) is regarded as the highest
Dharma as defined by the judicial commity custom significe a rule
which is in a particular family or in a particular class or in district has
from long usages obtained the force of law.
In literal word when certain course of conduct is followed
continuously for long time in a particular family or particular class or
in a particular locality it obtain one force of law.
Essentials of Custom:
Ancient
Invaiability & Continuous
Reasonableness
Clarity & Unambiguity
Not opposed to morality or public policy
Not opposed to express provision of law
Onus
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Judicial notice of a custom
The Dayabhagya and mitakshara are the two major source of Hindu
law.
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1. Justice, Equity & Good Conscience:
Occasionally it might happen that a dispute comes before a court
which can’t be settled by the application of any existing rule in
any of the sources available such a situation may be rare but it is
possible because not every kind of fact, situation which arises can
have a corresponding law governing it.
The Courts can’t refuse to the settle the dispute in the absence of
law and they are under an obligation to decide such a case cases
the courts relay upon the basic values norms & standards of fair
play & propriety.
In terminology this is known as principles of justice, equity and
good science they may also be term as natural law this principle
in our country has enjoyed the states of a sources of law since
the 18th Century when the British administration made it clear
that in the absence of a rule the above principle shall be applied.
After codification any point dealt with by the codified law is final
the enactment over rights all prior law whether based on custom
or otherwise unless & 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.
Mitakshara Dayabhaga
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1. Mitakshara : The Mitakshara school of Hindu Law is one of the
oldest & most widely followed school of Hindu law in India. It is
based on the commentary on the Yajnavalkya smriti by
Vijnaneshwara a medieval Hindu Jurist. The Mitakshara school
is prevalent in most parts of India accept for the State of Bengal
& Assam.
iv. Hindu Succession Act 1956: The Hindu Succession Act 1956
which is the main legislation governing succession and
inheritance in Hindu law is based on the principles of the
Mitakshara school. According to Mitakshara school only male
coparceners have a right to inherit ancestral property and
female members do not have coparcenery rights. However,
The Hindu Succession Act 1956 brought about significant
changes to the Mitakshara school of Hindu law by introducing
gender equality and giving rights to both male & females heirs
in matters of inheritance as per the Hindu Succession
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Amendment Act of 2005, Daughter now have equal
coparcenery rights in ancestral property which means that
there are entitle to share in the property by birth just like sons.
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ii. Testamentary Succession: Dayabhaga School recognize the
concept of testamentary succession where a person has the
right to make a will and dispose of his/her property as per
his/her wishes. the mitakshara school on the other hand does
not recognize the concept of will and the property is inherited by
the coparceners as per the rule of succession.
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