HINDU LAW PDF

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Chapter. I —The Sources of Hindu Law. „. II—Benami Transactions and. The Law of Damdupat. BOOK n. The Law of Status or Personal and Family relations. An Act to amend and codify the law relating to marriage among Hindus. person would not have been governed by the Hindu law or by any custom or usage. View Hindu law Research Papers on alenovtibta.ga for free. OR HERE: http:// alenovtibta.ga [PDF here is title page with live link to full article .


Hindu Law Pdf

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PDF | On Jan 1, , Purushottama Bilimoria and others published The idea of Hindu law. THE HINDU SUCCESSION ACT, No. 30 OF [17th June, ]. An Act to amend and codify the law relating to intestate succession among Hindus. Short title and extent - (1) This act may be called the Hindu Marriage Act, would not have been governed by the Hindu Law or by any custom or usage.

Dharma, however, is not simply a set of duties for it encompasses the moral law, not unlike the concept of natural law but without the excessive transcendental or theological element.

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It connotes the idea of that which maintains, gives order and cohesion to any given reality, and ultimately to nature, society and the individual; and it is inclusive of the respective obligations, duties including social and individual duties, ethical living and discharging of debts needed to ground the human community and allow it to flourish, etc. It would seem to follow that on the basis of this rather abstract principle Hindu lawmakers and ethicists devised comprehensive systems of social and moral regulations for each of the different groups, subgroups caste, rulers, monarchs, etc within the Hindu social order.

Certain universal virtues, duties and norms also come to be specified, such as non-injury or non-violence, non- coveting and not lying. Mohanty sums up the broader reach of dharma most aptly. Thus: According to the Hindu tradition, dharma in the strict sense i. What is common to them all is that they are all expressed in imperatives.

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But here is the rub, as we wish to argue. Secondly, what we have is a seemingly motley collection of codes, but no attempt is made to unify them in a system or under a single moral theory, or deduce them from a principle.

Without such a process, the function of law is not feasible. Laurie L. As Lingat also acknowledges, there is little in the way of rules of dharma in the Vedic texts.

The Vedic world is usually placed low on the list of sources for Hindu ethics for similar reasons. Lingat has a persuasive explanation, which is worth citing at some length: [T]he word Veda does not mean in that connection the Vedic texts, but rather the totality of Knowledge, the sum of all understanding, of all religious and moral truths, whether revealed or not.

These truths are not human entities; they are imposed upon man [sic] who must simply submit to them; they exist by themselves and have always existed. They form a kind of code with infinite prescriptions of which only the Supreme Being can have perfect knowledge. But only part of that Revelation could be communicated to mankind; a good deal of it has been lost, moreover, due to the weakness of human memory.

Therefore the Vedic texts are far from representing all the Veda. When a rule of dharma has no source we must conclude that it rests upon a part of the Veda which is lost or somehow hidden from our view. They hardly do more thereby than express their adherence to common belief, without attaching any particular value to that source.

Lingat, Classical Law, 8. Cited in A. As described above, the smr. But this suggests at best a kind of temporal imaginary: long back there was this pristine and perfect knowledge about the moral order and rules governing the same, but we seem to have become distanced from the source; however, we are still able to recollect the traces and rudimentary principles for deriving rules that are incumbent upon us in our present situation.

This view is being set aside here. Various exegetical devices were formulated to make this strong connection. Lingat, Classical Law, The theories of varn. They needed a theory to help simplify and reduce the innumerable castes, etc. It did, however, change over time, but not by moving the noisy wand of legislation, but rather imperceptibly by the silent shifts within custom itself. With the development of administrative systems and growing complexity of society, the state assumed increasing onus for enacting rules and regulations, and the king could now decree administrative and normative ordinances which it was the duty of the subject to obey at the risk of being questioned or arrested by order of the royal court.

But still these powers were not as extensive and enforceable as those of the modern power of legislation.

The process is rather secular; the rules of procedure, however, appear not to have made a clear distinction between the civil and criminal, except in areas such as the admission of witnesses and whose counsel the king should take before making a decision on the case before him. Their preoccupation is mostly with family marriage, in particular and succession law. One plausible ground for this edict is that, unless there are calculated controls, the natural law of the small fish being swallowed by the big fish would prevail.

The king may overrule the latter two sources of law, but he cannot put himself above dharma, in accordance with which all instances of disputes and contradictory judgments are to be decided 3.

This precept entails that the king maintains detailed codes of law and precedents and judges each case by its merit or otherwise in law, and he metes out punishment proportionate to the offence of violation of the codes, but not in whimsical excess.

Thus law compilers such as Manu and Kaut. The law Kangle, The Kaut. In time, particularly varn. Manu I.

Codification of Hindu Law

Liberal allowances were made for changes in the civil, criminal and customary law, as sanctioned by popular usage and moulded by state guilds.

He was also to advise the government about suitable changes that could be introduced in consonance with the spirit of dharma and culture. And yet a critically informed genealogy of this process is lacking in the reconstruction of Indian legal history. So where does one turn for a more informed and definitive mapping? The king likewise is all too conscious of the risk of committing sin or de-merit if he applies a rule improperly.

The Vedas or Veda are a collection of ritual and liturgical hymns, sam. One of the preeminent themes that motivates much of Vedic thinking is the consideration of a higher cosmic order r. So conceived, r.

Hence, Satyajeet A. See P. Roy W. Satyajeet A.

Desai, ed. Werner F. Menski also takes them and a few others to task on this score. And Asaf A. Fyzee repeats the stereotype, introducing God in connection with dharma for the Hindus, in Outlines of Muhammadan Law, 4th edn Delhi: Oxford University Press, , Dallapiccola et al. Weisbaden: Steiner, , —12, See also Lingat, Classical Law, 7—8.

All cited in Bhattacharjee, Hindu Law, There are thus permutations and variations to the same theme. These two as the highest authority should never be called into question. It has recently come under severe criticism and qualification by scholars of Hindu legal history and certain Indian feminist writers also, as we shall discuss in developing an understanding of the complexity and variegated pastiche that is often characterised to be a homogenous or univocal structure under the rubric of Hindu law.

There are doubtless a good number of scholars who have written on Hindu law—Mulla, J. Mayne, Paras Diwan, J. Duncan M.

Derrett, P. Kane, Robert Lingat, A. In many ways Menski reinforces what Indian moral philosophers have been arguing for some time, namely that Hindu and, for that matter, much of Indian law cannot be separated from morality and culture-specific ethics in the broader sense of practices and social realities or relativities on the ground. Menski has his critics too, such as Donald R.

As we shall see, Kaut. Patrick Olivelle Oxford University Press, , 94, This position is discussed in relation to general theory of morality or ethics in the Indian context within which the practices of law, jurisprudence as legal hermeneutics, the role of precedence, natural law disquisitions and judicial decision making were included: see P.

Bilimoria, Renuka Sharma and J. Prabhu, eds, Indian Ethics, Vol. Also P.

Sherma and A. Sharma Dordrecht: Springer , 43— Personal communication and his review of Menski.

First let us elaborate on what exactly are the view and the claim that it underpins. It is that, in the first instance, the Scriptures are the source of dharma. We shall begin with the first of the institutes or sources that supposedly prescribes dharma, namely, the Vedas, for in principle every rule of dharma must indeed locate its authority in the Vedas.

But before that a word on the conception of dharma in this juxtaposition. The common understanding equates dharma with duties and precepts or prescriptions.

Modern Hindu law

Dharma, however, is not simply a set of duties for it encompasses the moral law, not unlike the concept of natural law but without the excessive transcendental or theological element. It connotes the idea of that which maintains, gives order and cohesion to any given reality, and ultimately to nature, society and the individual; and it is inclusive of the respective obligations, duties including social and individual duties, ethical living and discharging of debts needed to ground the human community and allow it to flourish, etc.

It would seem to follow that on the basis of this rather abstract principle Hindu lawmakers and ethicists devised comprehensive systems of social and moral regulations for each of the different groups, subgroups caste, rulers, monarchs, etc within the Hindu social order.

Certain universal virtues, duties and norms also come to be specified, such as non-injury or non-violence, non- coveting and not lying. Mohanty sums up the broader reach of dharma most aptly. Thus: According to the Hindu tradition, dharma in the strict sense i. What is common to them all is that they are all expressed in imperatives.

In the end, a series of four major pieces of personal law legislation were passed in and these laws form the first point of reference for modern Hindu law: Hindu Marriage Act , Hindu Succession Act , Hindu Minority and Guardianship Act , and Hindu Adoptions and Maintenance Act Though these legislative moves purported to resolve still unclear parts of the Anglo-Hindu law, the case law and interpretive tradition of British judges and Indian judges in the British employ remained and remains crucial to the application of modern Hindu law.

Application of Modern Hindu Law[ edit ] As stated by Article 44 of the Indian Constitution , India is a secular state that strives towards legal uniformity. Many argue that the commitment of the Indian government towards this gradual uniformity of the legal system threatens the minority religious groups that utilize the plurality of the law to maintain traditions and implement their religious laws. While modern Indian Law claims to make strides towards secularism, it is undeniable that its foundations rise from the Hindu legal tradition and continues to maintain religious legal acceptance by recognizing the personal and family laws of the Islamic , Christian , Jewish , and Hindu religions.

Before discussing the modern application and sources of Hindu law it is important to outline whom these laws govern.

In the case of Hindu personal and family laws, as outlined by the Acts of Parliament discussed below, those that are followers the Hindu religion, as well as those who are not Christian, Jewish or Muslim, are held accountable to these laws.

The Indian legal system does recognize Muslim, Jewish and Christian family courts as well as secular family courts. Since British colonialism, India has codified several aspects of the Hindu tradition into the Indian legal system as well as adopted common and civil legal procedures.

In the case of two conflicting sources, legislation holds the highest jurisdiction. During colonialism, the British codified several aspects of the Hindu legal tradition into the Indian legal system, with the assumption that all Indians were Hindus.

Thus upon gaining independence, many of the same laws that governed the country during colonialism were maintained as such, making the Indian Constitution and legal system heavily laden with Hindu legal traditions at its foundation. Any case decision made by a higher court is a source of law to all of the lower courts, in the prospect that the laws will be applied in a similar manner.

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The Hindu family courts are expected to follow laws handed down from previous cases. Modern Hindu law relies on the interpretation of judges and their ability to decipher mitigating factors within each legal situation. Notable Legal Precedents and Legislation[ edit ] As is the case with many global legal systems that rely on precedents as a source of law, certain cases stand out that have shaped the Indian legal system into what it is today.

Medieval Hindu Law: A Study of Post-Smrti Changes in Hindu Law

Not only do they provide the foundation for future legal cases but they also make a statement about the state of the country and what direction it wants to lead. One such case came about during the efforts of modernization reforms in India.

Known as the Medical Termination of Pregnancy Act , the law allowed Indian women to legally obtain abortions.Discuss the position of 'Srutis' and 'Smritis' as the sources of Hindu Law.

A person who ceases to be a Hindu by converting to a non-Hindu religion will, again, become Hindu if he reconverts to any of the four religions of Hindu. Any person who is not a Muslim, Christian, Parsi or Jew and who is not governed by any other law. Property which belongs to a joint family is ordinarily managed by the father or another senior male member of the family.

If the partition is unequal and unfair, it is open to the sons if they are majors to repudiate the partition; but if they are minors, it is open to them to avoid it after they attain majority.