Presentation - Fundamentals of Hindu LAW .pptx

Presentation on fundamentals of Hindu law.

1. Introduction of Hindu

2. Meaning of Hindu “Hindu word is not defined anywhere, it is derived from the word Sindhu but in general terms " All the persons who profess Hindu religion either by birth or by conversion to the Hindu faith, are called Hindu".

3. WHO IS HINDU? According to Hindu Laws :- Hindu by Birth Hindu by Conversion Brought up as Hindu Hindu by Declaration

4. TO WHOM HINDU LAWS DO NOT APPLY Any children whose one parent is Hindu and Another parent is other than Hindu, (Muslim, Christian, Parsi, Jew) and not brought up as Hindu. Any Hindu who converts himself in any other Religion other than Hindu Religion

5. Sources of Hindu Law Broadly , there are following two types of sources of Hindu law: Traditional/Ancient sources. Modern sources.

6. Traditional/ ancient sources Traditional sources refer to those ancient Hindu legal systems that 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 (Vedas ) Smrities Digest and commentaries. Customs

7. Shruti (Vedas) Shruti means something which has been heard. The word is derived from “ Shru ” which means to ‘ hear ’. 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. Thus shrutis include 4 Vedas – Rigveda , Yajurveda , Samveda , Atharvaveda along with their brahmins . Brahmins are considered as a guide to Vedas. Some people believe that Vedas contain laws and codes of conduct while others believe that laws have to be inferred from Vedas.

8. The Brahmanas are like the 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, the requirement of a son, exclusion of women from inheritance and partition but these are not very well defined or specific laws. Since Vedas had a divine origin, the society was governed as per the theories given in Vedas and they are considered to be the fundamental source of Hindu law. Shrutis basically describe the life of the Vedic people.

9. Smrities The word Smriti has been derived from ‘ smri ’ which means ‘to remember ’. 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).

10. Dharma Sutras The Dharma sutras were written from 800 to 200 BC. They were mostly written in prose form but also contain verses. They were considered as a training manual of sages for teaching students which contained the knowledge of Vedas with local customs . They explain the duties of men in various relationships. They do not pretend to be anything other than the work of mortals based on the teachings of Vedas and the legal decisions given by those who were acquainted with Vedas and local customs .

11. b. Dharmashastras Dharmashastras were mostly in metrical verses and were based on Dharmasutras . However, they were a lot more systematic and clearer. They dealt with the subject matter in three parts: i. Aachara - This includes the theories of religious observances, ii. Vyavahar -This includes civil law. iii. Prayaschitta - This deals with penance and expiation. However, they were a lot more systematic and clearer. From the time of their composition, the works of the Dharmashastra have played a significant role in influencing Hindu culture and law. In fact, the shastras were still being cited in cases of legal contracts as late as the mid-19th century in some regions of India. Out of many dharmashastras , three are most important:

12. 1. Manusmriti This is the earliest and most important of all. It the most authoritative of the books of the Hindu code (Dharma- shastra ) in India. Manu- smriti is the popular name of the work, which is officially known as Manava -dharma- shastra . It is attributed to the legendary first man and lawgiver, Manu. 2. Yajnavalkya Smriti Yajnavalkya also gave a lot of importance to customs but holds the king to be below the law. He considers the law to be the king of kings and the king to be only an enforcer of the law. He did not deal much with religion and morality but mostly with civil law. It includes most of the points given in Manusmriti but also differs on many points such as the position of women and Sudras . He was more liberal than Manu. Vijnaneshwar's commentary ' Mitakshara ' on this smruti , is the most important legal treatise followed almost everywhere in India except in West Bengal and Orissa.

13. 3. Narada Smriti Narad also gave a lot of importance to customs but holds the king to be below the law. “ N?radasm?ti ” is an Indian literary tradition that serves as a collection of legal maxims relating to the topic of dharma. This text is purely juridical in character in that it focuses solely on procedural and substantive law. Known as the "juridical text par excellence," the N?radasm?ti is the only Dharma?? stra text to not cover areas such as righteous conduct and penance. Its focused nature has made the text highly valued by rulers and their governments, in the Indian subcontinent and southeast Asia, likely as an aid of carrying out their dharma of justly ruling the country.

14. Digests and commentaries Digests and commentaries came after smrities during the 7th century to 1800 A.D. 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.

15. Customs and usages 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. Customs can be classified into 4 types Local customs: These customs are followed in a particular geographical area and its application is limited to that particular area only. For example in Rajasthan, there was a custom of child marriage prevalent. Caste and community customs : These customs prevail in a certain community of people and the people of that particular community follow the custom. For example in Sikhs, marriage is solemnized by Anand Karz . Family customs: It refers to customs that exist in a particular family. They can be easily abandoned as compared to other forms of customs. Guild customs: These customs are followed by a certain group of traders.

16. 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 justice and good conscience Legislation Precedent

17. Equity justice and good conscience 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 . Legislation 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.

18. Precedents The doctrine of stare decisis started in India from British rule. All cases are now recorded and new cases are decided based on existing case laws . Precedent is called to be a source of Hindu law in two senses – First – practically all the important principles and rules of Hindu law have now been embodied in case law. In such matters, recourse to the source is not necessary. Reference to a leading decision is enough . Secondly, – Precedent is a source of law in the sense that by the purpose of judicial interpretation, doctrines, principles, and rules of law stand modified or altogether new principles, doctrines, and rules have been introduced in the body of Hindu law. For these principle doctrines and rules, the sources of authority are Precedent.