5.Sources of Hindu Law (1)

8/13/2019 5.Sources of Hindu Law (1)

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DR.PRIYA VINJAMURI


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DOCTRINE OF HINDUISMTolerance or a relative capacity to endure or

adapt psychologically to an unfavourable

environmental factor was the highwatermark of Hinduism. Hindu culture wasassimilative in that it absorbed and digested

into its system all foreign cultures withoutado. Under a plurality of forms, Hinduismbelieved in the unity of spirit.


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DOCTRINE OF GITAAs expounded by the sacred Bhagwad Gita this

doctrine stands unaltered.

It says as water falling from sky goes to sea so

worship in whatever form reaches the SupremeLord.

The religion, according to a Hindu, was not a

dogma or something held as an establishedopinion or a definite authoritative tenet which isunalterable, but it is insight or experience


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GIST OF HINDUISMTolerance, freedom from dogma

and accommodation are thus theoutstanding characteristics ofHinduism which lent it strength to

survive waves of foreign invasionsof the country.


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PRIVY COUNCIL ON HINDUISMAs observed by the Privy Council

Hinduism is marvelously catholic

and elastic.Its theology is marked by

eclecticism and tolerance andalmost unlimited freedom ofprivate worship


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CASELAW OF SUPREME COURT OF

INDIAThe Supreme Court of India, in Shastri

Yagnapurushdasji case has brought forth this

distinctive feature of the Hindu religion:Acceptance of the Vedas with reverence;recognition of the fact that the means or waysto salvation are diverse; and realization of the

truth that the number of Gods to beworshipped is large, this indeed is thedistinguishing feature of Hindu religion.


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SOURCES OF HINDU LAW

The Srutis : The approximate period of Vedasis now accepted to 4000-1000 B.C. Sruti or Veda

literally means what was heard. It is the language of divine revelation

containing the very words of God.

Vedas are therefore infallible and constitute thesupreme authority by all Law givers. Theycontain the root and the original sources of

Dharma.


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SRUTI- VEDASVedas are four in number, namely (1) Rig Veda, (2)

Yajur Veda, (3) Sama Veda and (4) Atharva Veda. RigVeda is the oldest and consists of hymns and songs inpraise of the forces of Nature. The Yajur Veda dealswith rituals and sacrifices and mantras in thisconnection. The Sama Veda contains prayerscomposed in metre and set to music. The AtharvaVeda devoted to magic, spells and incantations.


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VEDANGASTHE SIX VEDANGAS ARE:

(1) Kalpa

(2) Vyakarna(3) Chhanda

(4) Shiksha

(5) Jyotish

(6) Nirukta


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GIST OF THE VEDAS

The Vedas primarily emphasized upon the standard of

conduct, privileges, duties and obligation of a man aswell as the philosophy of divine attachments, they alsolay down the customary laws as accepted by learnedmen. These Vedas do not contain any systematic orlogical description of positive law.


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Smritis-What has been

remembered The word Smriti literally means what has been

remembered.

In theory the Smritis are based on the memory of thesages who were the repositories of the sacredrevelation.

The Smritis may be divided into early Smritis and the

later smritis. The former are called the Dharmasutras and the latter,

the Dharmashastras.


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DHARMASUTRAS Dharmasutras Gautama, Bhowdayana, Apasthamba

Vasistha and Vishnu are the chief sutra karas.

The period of these sutras were approximatelybetween 800 BC and 200 BC. They contain a vividdescription of human duties.

Dharma sutras were written in prose style.


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Dharmasastras Manu, Yajnavalkya, Narada and others are chief

exponents of Dharmasastras were written in shlokasor metrical verses. Manu smriti is divided into 12chapters.

Eight chapters describes eighteen titles of law whichinclude both civil and criminal law, law of property,inheritance, master servant relationship anddefamation etc.

Yajnavalkaya smriti also contain the rules of procedureand evidence to be followed in civil disputes.


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Narada Smriti The next important smriti is that of Narada, compiled

in about AD 200. Narada acknowledges that his bookis an abridgment of the larger work of Manu. But theviews propounded in his work are highly advanced andprogressive. He emphasized the importance ofcustoms.


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Digests and Commentaries Several digests and commentaries were written on

smritis during the period between 700 AD to 1700 AD.

Some of them can be noted here under:

On Manusmriti:- Medhatithi had written

Manubhasyam (895 900 AD),Govindraj had writtenManutika (1100 AD), Kulluka Bhatta had writtenManavonata Muktavali (1250 AD).


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Digests and Commentaries.. On Yagnavalkya smriti vijnaneswara had written the

famous commentary Mitakshara (1100 AD). Vijna Rupahad written Bala Krida (900 AD). Apararka hadwritten Aparaditya (1200 AD). Another famous workDayabhaga written by Jimutavahana in 12thcentury.


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Custom Custom is uncodified rule of practice followed by

a section of people from the time immemorialhaving certainty, uniformity and continuity which

is not opposed by the public policy, morality anddecency. When certain course of conduct isfollowed continuously for a long time in aparticular family, or in a particular class of persons

or in a particular locality, if leads to custom.


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Essentials of custom

AncientContinuity

Reasonableness

Clarity and unambiguity

Not opposed to morality or publicpolicy

Not opposed to express provisions oflaw.


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Case Law In Collector of Madura v. Morttoo Ramalinga (1868)

the privy council said that clear proof of usage willoutweigh the written text of law


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Judicial decisionsWhen the law is not clear(or) silent on a particularpoint or ambiguous the constitutional courts such asSupreme Court and High Courts through the decisionsand rulings may also bring new law. Such decisions arebinding on the subordinate courts. The law declaredby the Supreme Court shall be binding on all courtswithin the territory of India. Similarly the rulings

given by the High Courts are binding on Districtcourts and other subordinate courts.

Documents

5.Sources of Hindu Law (1)