Sources of hindu law
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Sources of hindu law Document Transcript

  • 1. Sources of hindu law;Definition of hindu law:The hindus believe that their law is of divine origin and to them this is positive law emanated from thedeity. The hindu law were bound by the divine laws contained in the ‘Smritis, and these were applicableto kings and subjects a like. So according to hindu conception, the law in the modern sense, was only abranch of Dharma, which inclues religious, moral, social and legal duties.Source of hindu law:The term ,source, in the expression ,source of hindu of hindu law means what prof Holland calls thematerial source. Which we derive the matter and not the validity of law, custom, religion and scientificdiscussion ete. The main sources of hindu law are as follows:1. Sruti;2. Smriti.3. Custom;4. Nibanadhas;5. Factum Valet6. Puranas7. Judicial DecisionThe sruti: The sruti contains the divine revelation, the very words of deity. The root sru means to hearand sruti literally means. What was heard. To the hindusthe ,sruti, is of paramount authority but itcontains very little of lawyer,s law, the sruti comprises the four vedas, the six vedanges and eighteenUpanishads.The vedas are four in number. Are as follows:1. Rikhveda;2. Yajurveda;3. Samaveda;4. Atharvaveda;
  • 2. The vedangas are six in number are as follows;1. Sikhas or orthography.2. Kalpas.3. Vyakarana or grammer.4. Chandas or prosody.5. Jyotish or astronomy.6. Niruksa or lexican.2. Smritis; Thesmritis literally means that which was remembered and is believed to contain theprecepts of god. The sruti contains the very words of god whereas in smriti the language is of humanorigin but the rules are devine. The smritis are the principal sources of lawyer,s law but they also containmatters other than positive law. The three principal smritis are;1. The code of mannshrritti. It was between 2oo B.C. and 2oo A. D.2. The code of yajnavalkya/ joggobolkah. It was written about 2oo B.C and 4oo A.D.3. The code of narradha. It was written in 5oo or 6oo century A.D.4. Customs; Custom is one of the most important sources of hinhu law. Where there is a conflictbetween a custom and the text of the smritis such custom will override the text. It was upheldunder the hindu system of law clear proof of usage will outweigh the written text of law. Theview was taken by the privy council in the case of the collector of Madura v. mootoo(12.M.i.A.397,436).Custom is a rule, which in a particular family or in a particular district has from long usage obtained theforce of law.Custom may be divided into three classes;
  • 3. 1. Local customs;2. Class customs;3. Family customs;4. Nibandhas: Since the hindu law is believed to be of divine origin perfect harmony amongst thedifferent codes must necessarily be expected. But the conflict between thesmritis, seeming orreal, has given rise to the commentaries that are called nibandhas.5. Factum valet: The called doctrine of factum valet quod debut meaning, what should not bedone, yet being done, shall be valid. Was enunciated first by the author of the Dayabhaga.Though the doctrine of factum valet was enunciated by the author of dayabhaga it was acceptedby the Mitakshara School to a great extent.6. Puranas; Thepuranas, eighteen in number, are not considered authority. So as to override thesmritis these illustrate the law by the instances and are looked upon as precedents. The puranasare not authority in law. They may be received in explanation or illustration, but not in proof.And another source are;7. Judicial Decision: judicial decgsions to some extent have become sources of hindu law.Decisions of the Privy Council and of high courts are binding on the subordinate courts.LAGISLATORLegislation, as created and implemented by the Indian government, is thestrongest source of law in all Indian courts. In the case of two conflicting sources, legislationholds the highest jurisdiction. While it is not a traditional source of law for the Hindu legalsystem, it is the latest and most legitimate form.During colonialism, the British codified severalaspects of the Hindu legal tradition into the Indian legal system, with the assumption that allIndians were Hindus. Thus upon gaining independence, many of the same laws that governed thecountry during colonialism were maintained as such, making the Indian Constitution and legalsystem heavily laden with Hindu legal traditions at its foundation.
  • 4. EQUITY, JUSTICE AND GOOD CONCIENCEThe court has the inherent power of applying Equity, justice and good conscience. The courtobserved that to such matters which do not affect the essence of the adoption, the doctrine offactum valet would apply upon general grounds of justice, equity and good conscience anderrespactive of the authority of any text in the hindu law itself. But such application must beconsistent with the basic provisions and principals of hindu law and not offending the same.Hindu is one of the most ancient religion on the world. So the laws of hindu are came from differentsources. In ancient times the hindus are maintain only the law which they believe that come fromDiety, but now they have also some man made law. All the sources of the law of ancient and themodern are mentioned above.ConclutionHindu is one of the most ancient religion on the world. So the laws of hindu are came from differentsources. In ancient times the hindus are maintain only the law which they believe that come fromDiety, but now they have also some man made law. All the sources of the law of ancient and themodern are mentioned above.