hindu law origin

NATURE AND ORIGIN OR HINDU LAW :

Historically the term 'Hindu' is of foreign origin. It was used to designate people who were living east of the Hindi river, now known as the Indus. Etymologically, the term 'Hindu' was applicable to all the inhabitants of India irrespective of caste and creed. In course of time, the term Hindu has been associated with religion. Thus logically, the term 'Hindu' is used to signify persons who are Hindus by birth and by faith and this is the basis for the applicability of Hindu Law Hindu, Muslim and Christian Laws of marriage and divorce. The nature of the institution of marriage and its development the capacity and nuptial rights and the effect of void and voidable marriage under the aforesaid systems of law. Hindu law of marriage and divorce with reference to the changes brought about my modern legislation. PERSONS GOVERNED BY HINDU LAW : The following persons are governed by Hindu Law: 1. A HINDU BY BIRTH : If the parents are both Hindus, their children whether legitimate or illegitimate become Hindus automatically. 2. A HINDU BY FAITH OR CONVERSION OF HINDUISM: Previously, it was a contention that "a Hindu is horn and nor made". But now even a person converted to Hinduism is treated as a Hindu. 3. ILLEGITIMATE CHILDREN : Illegitimate children born to Hindu parents or both the parents. 4. ILLEGITIMATE CHILDREN : Illegitimate children born to Christian father and Hindu mother, and brought up as a Hindu. 5. JAIN SIKH, BUDHIST LINGAYAT, BRAHMOS, ARYA SAMAJ: Jain sikh, budhist, Lingayat, Brahmos, Arya Samajist and Santhals of Chota Nagpuri, If not varied by custom. 6. A person who is Hindu by birth, and who has renounced Hinduism and reverted back to Hinduism either by religious rites or recognition from community.

7. The sons of Hindu dancing grils of the Naik caste who are converted to Mohammedanism, but whose sons are brought up by the Hindu grand parents as Hindus. 8. To Hindu who have made a declaration that they were not Hindus for the purpose of Special Marriage Act 1872 PERSONS NOT GOVERNED BY HINDU LAW : 1. Illegitimate children born to Hindu father and Christian mother and brought up as Christians. 2. Illegitimate children born to a Hindu father and a Muslim mother. 3. Hindu converted to islam religion 4. Hindu coverted to christianity. 5. A Hindu marrying under Special Marriage Act, for the purpose ofinheritance, governed by Indian Succession Act and not Hindu Succession Act. EFFECT OF CONVERSION AS PER INDIAN HINDU LAW : APPLICABILITY OF HINDU LAW : 1. Chritianity : Earlier to Indian Succession Act 1925, a Hindu covert to Christianity could opt for Hindu faith. After passing the Indian Succession Act, the Hindu covert to Christianity is governed by the Indian Succession Act. 2.Mohammadanism : A Hindu covert to Mohammedanism has no option to retain Hindu personal law and he is governed by Muslim personal law. 3. Hinduism : Any covert to Hinduism from other religion does not have any caste, but if he professes hindu faith, it is sufficieant for the application of Hindu Law. EFFECT OF CONVERSION ON INHERITANCE RIGHTS: Previously a convert from one religion to another could not inherit the property of his original religion. But the Caste Disabilities Removal Act 1850 abolished the said forfeiture of rights to inheritance by a convert.

EFFECT OF CONVERSION ON MARITAL RIGHTS : Under the Hindu Marriage Act 1956 if any of the spouse converts himself to another religion the other party is entitled for a divorce. EFFECT OF CONVERSION ON RIGHT TO MAINTENANCE: The spouse who gets converted from Hinduism to another religion cannote claim maintenance. However if a Hindu himself renounces Hinduism the Hindu wife can claim separate residential maintenance from him.

Hindu law in its current usage refers to the system of personal laws (i.e., marriage, adoption, inheritance) applied to Hindus, especially in India.[1] Modern Hindu law is thus a part of the law of India established by the Constitution of India (1950). Prior to Indian Independence in 1947, Hindu law formed part of the British colonial legal system and was formally established as such in 1772 by Governor-General Warren Hastings who declared in his Plan for the Administration of Justice that "in all suits regarding inheritance, marriage, caste and other religious usages or institutions, the laws of the Koran with respect to the Mohamedans and those of the Shastras with respect to the Hindoos shall invariably be adhered to."[2] The substance of Hindu law implemented by the British was derived from early translations of Sanskrit texts known as Dharmaśāstra, the treatises (śāstra) on religious and legal duty (dharma). The British, however, mistook the Dharmaśāstra as codes of law and failed to recognise that these Sanskrit texts were not used as statements of positive law until they chose to do so. Rather, Dharmaśāstra contains what may be called a jurisprudence, i.e., a theoretical reflection upon practical law, but not a statement of the law of the land as such.[3] Another sense of Hindu law, then, is the legal system described and imagined in Dharmaśāstra texts. One final definition of Hindu law, or classical Hindu law, brings the realm of legal practice together with the scholastic tradition of Dharmaśāstra by defining Hindu law as a usable label for myriad localized legal systems of classical and medieval India that were influenced by and in turn influenced the Dharmaśāstra tradition. One of the major complaints of Hindu law is that it does not give everybody rights. However, the people at the top of the Hindu society are treated with benefits, while the bottom is treated with less care. Hinduism is a prime example of how law is the defining feature of religion life. All together Hindu Law is a structured system that leaves its historical discoveries in the background.[4]Such local laws never conformed completely to the ideals of Dharmaśāstra, but both substantive and procedural laws of the tradition did impact the practical law, though largely indirectly. It is worth emphasizing that Sanskrit contains no word that precisely corresponds to 'law' or religion and that, therefore, the label "Hindu Law" is a modern convenience used to describe this tradition. This article will briefly review the Hindu law tradition from its conceptual and practical foundations in early India (Classical Hindu Law) through the colonial appropriations of Dharmaśāstra (Anglo-Hindu Law) to the establishment of the modern personal law system (Modern Hindu Law). The Classical Sanskrit term for "law" is dharma. This is "law" in the historical sense (of course predating the modern division of religious from secular law), as such including aspects

such as ritual purification, personal hygiene regimens, and modes of dress, in addition to court procedures, contract law, inheritance, and other more familiarly "legal" issues. As in other religious traditions based on orthopraxy (rather than testimony of faith; see e.g. Halakha Sharia), the modern attempts to separate religious practice from secular law has been criticized by traditionalists (orthodox Hinduism).[5] According to Rocher, the British Raj implemented a distinction between the religious and legal rules found in Dharmaśāstra and thereby separated dharma into the English categories of law and religion for the purposes of colonial administration.[6] However, a few scholars have argued that distinctions of law and religion, or something similar, are made in the Hindu legal texts themselves.[7]

Sources of dharma There are usually three principal sources of dharma in the Dharmaśāstra texts:[citation needed] 1. śruti, literally translates as "what is heard," but refers to the Vedas or Vedic literature which are the liturgical and praise hymns of the earliest Hindu tradition 2. smṛti, literally "what is remembered," but refers to the Dharmaśāstra texts as well as other Sanskrit texts such as the Purāņas and the Epics (Mahābhārata and Rāmāyaņa) 3. ācāra, literally "practice," but refers to the norms and standards established by educated people who know and live by the first two sources of dharma In two important texts, namely the Laws of Manu [Manu Smriti] (2.6) and the Laws of Yājñavalkya [Yajnavalkya Smriti] (1.7) another source of dharma, ātmastuṣṭi, literally "what is pleasing to oneself," is also given, but later texts and commentaries severely restrict this source of dharma.[8] Effectively, the three ideal sources of dharma reduce to two – texts and the practiced norms of people who know the texts. It is the latter category that gave Hindu law a tremendous flexibility to adapt to different temporal and geographic contexts.

Important legal concepts in Dharmaśāstra The Dharmaśāstra developed an extensive repertory of legal concepts denoted by Sanskrit terms, many of which were adapted from older theological, philosophical, and political discourses. Although Dharmaśāstra itself was rarely cited directly in litigation or other legal practice, many of these concepts show up in South and Southeast Asian legal documents such as deeds, charters, and orders preserved in inscriptions or other records, including those not composed in Sanskrit (Lubin, 2012). Important examples[9] include: 

vyavahāra – In Dharmaśāstra, vyavahāra refers to the matters justiciable before a formal court of the king or constituted by the king. Vyavahara has two principal sections – legal procedure (vyavahāra-mātŗkā) and the traditional eighteen Titles of Hindu Law (vyavahāra-pada).

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adhikāra – practical authority, authorisation, legal capacity, entitlement, responsibility[10]

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pramāṇa – source of epistemic authority (pramāṇatva, prāmāṇya)[11]

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ṛṇa – debt

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svatva – property

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daṇḍa – threat of punishment

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prāyaścitta – penance, expiation[12]

Classical Hindu law Main article: Classical Hindu law There is little evidence for the practice of law in India prior to about the eighteenth century. In some regions, such as Maharashtra, a kind of hybrid Hindu and Islamic legal system was fashioned under the Maratha kings.In other places, such as South India, temples were intimately involved in the administration of law. Law during the classical period was highly based upon the teachings of the dharmaśāstra and the distinguished sources of dharma as dictated by those learned in the Vedas. Although theologically law was primarily derived from Vedic knowledge, in actual practice, the community norms of particular social groups determined the actually rulings. Law was therefore highly decentralized and quite particular in nature towards specific groups. What is almost completely lacking for classical and medieval India are the records of courts. In lieu of such records, other kinds of evidence for legal practice must be used to piece together an outline of Classical Hindu Law in practice. Such evidence includes prominently the numerous inscriptions from this period that record a variety of legal transactions, gifts, contracts, decrees, etc. associated with political rulers, temples, corporate groups and others. Many aspects of law were likely under the jurisdiction of castes or other corporate groups such as merchant guilds, military groups, traders, and religious orders. Beginning around the eighth century, Hindu legal traditions began to be imported into certain parts of Southeast Asia (Cambodia, Java, Bali, Malaysia, Thailand, and Burma) as part of a larger cultural influence mediated by trade and diplomatic relations. In each of these regions, Hindu law fused with local norms and practices, giving rise to legal texts (Āgamas such as the Kuṭāra-Mānawa in Java, and the Buddhist-influenced Dhammasattas/Dhammathats of Burma and Thailand) as well as legal records embodied (as in India) in stone and copperplate inscriptions.