Hindu Law

Hindu Law

Hindus

The term Hindu was applicable to all inhibitants of India irrespective of caste and creed. It was used to denote people who were living east of the Hindu river (now known as Indus).  In Course of time, the term Hindu has been associates with religion.­­­­­

According to Dharmashastra, Four Goals of Human Life are

1.      Artha

2.      Dharma

3.      Kama

4.      Moksha

Artha & Kama are concerned with this world

Dharma & Moksha are concerned with next world

Hindu Social Structure

It is the outcome of Hindu philosophy

The attainment of Mukthi is the Ultimate Goal of Life. This goal can be obtained by performing good deeds.

A person gets Pain and Pleasure in life according to accumulated Good or Bad deeds (or Karma)

 Hindu law structure was based on Verna Vyavstha (ie. Caste System)

There are Four Castes (Varna Dharma)

1.      Bhramin

2.      Kshatriya

3.      Vaishya

4.      Sudra

Criteria for dividing society into Four Classes

1.      Sukra Niti (Mouth)

2.      Guna (Arm)

3.      Karma ( thigh)

4.      Swabhava (Feet)

Acc to another theory the first three are upper Classes descended from Mouth, Arm, Thigh and Feet of Brahma.

Another basis of Classification is the Occupation & Karma of People in Society.

Brahmins

-          Japa – Tapa, making of Sacrifices were termed as Brahmins

-          They are regarded as superior to other Classes

Acc to Shanti Parva of Mahabharat, in times of Adversity and Distress, the Brahmin may

-          follow the occupation of Kshatriyas and Vaishyas

-          If he is not capable to perform duties of Kshatriyas there are certain Reservations in this rule

-          When following the Occupation of Vaishyas, a Brahmin should not sell Wines, Salt, Sesame Seeds, bulls, Honey, Meat and Cooked food under any circumstances.

Kshatriyas

-          Group of people who engaged themselves into protection of People, study, War etc.

-          They are considered inferior to Brahmins, because they have lesser power of self Control

-          They Constituted the Class of Warriors

Vaishyas

-          Group of persons who engaged themselves in the occupation of trade and Commerce

-          Their main work is Trade & Business

Sudras

-          Their only duty was to serve people belonging to other three castes

Duties of Hindu Society

1.      Ahinsa (Non Violence)

2.      Self-restraint

3.      Satya (Truthfulness)

4.      Benevolence

5.      Purity

6.      Forgiveness

If a person ignores these duties, a better life could not be obtained in next birth.

Hindu Concept of Law

Hindu law is considered to be of divine origin. It is revealed by the Almighty God to our great sages, Philosophers and jurists who have attained spiritual heights by their Tapasya and Yog. Since it is divine law, it cannot be changed by any human agency. It is enforceable at all time.

Hindu Law according to Dharmashastra is

1.      Sacrosanct

2.      Inviolable and

3.      immutable

Medhatithi, the commentator of Manu Smriti defines Dharma as duty created by God himself for individuals. But the term Dharma does not signify the legal duties alone, it refers to moral, religious as well as social duties. Those who disregarded them were punished by King.

Hindu concept of Law is quite different from Austin-ian concept.

Acc to Austin, “Law is the Command of Sovereign”

But the law according to Hindus is not King-made Laws. The king is not regarded as the Law-giver, but merely the law enforcer. The King was deemed to be subordinate of Dharma (ie. Law)

In Satpatha Brahmina, the law has been declared to be the “King of Kings”

Great Dharmashastra writers of ancient time have divided their whole work under 3 heads:

1.      Achara

2.      Vyavahara

3.      Pravaschitta

Achara deals with the Karmas of the individual

Vyavahara means the Civil Law

Prayaschitta is the process of purification which enables a wrong doer to purify himself from all the sins (pap) by performing penance.

Later Dharmashastras realized the importance of Vyavahara as an independent entity, classified it separately and adequate emphasis was laid on the sanctity

All men are required to observe Vyavahara in Letter and spirit. In case of non-observance, the king had to take cognizance and bring the offenders to book.

Manu laid down 18 titles of litigation to cover up all types of cases in King’s Court.

Vyavahara became distinct from religious or moral laws and fully developed concept of Positive Law came before us.

Vyavahara is an important concept of Hindu law denoting legal procedure.

The term is analyzed by Katyayana as follows:

"Vi" means various

"ava" means doubt

"hara" is removal

legal procedure is called by the term vyavahara because "it removes various doubts".

Legal Proceedings

There are four parts of Hindu legal procedure:

1.      The Plaint (Pratijna - Complaint)

2.      The Reply (Uttaram - answer of written statement)

3.      The Trial (Kriya - Trial)

4.      The Decision (Nirnaya - Decision)

In the Dharmashastras and Hindu law, more generally, there are usually eighteen titles of law.

The titles of law make up the grounds for litigation and the performance of the legal process, usually by the king and his Brahmin counselors.

The eighteen titles of law

The eighteen titles of law according to Manu are:

1.      Non-payment of debts

2.      Deposits

3.      Sale without ownership

4.      Partnerships

5.      Delivery and non-delivery of gifts

6.      Non-payment of wages

7.      Breach of contract

8.      Cancellation of a sale or purchase

9.      Disputes between owners and herdsman

10.  The Law on boundary disputes

11.  Verbal assault

12.  Physical assault

13.  Theft

14.  Violence

15.  Sexual crimes against women

16.  Law concerning husband and wife

17.  Partition of inheritance and

18.  Gambling and betting.

Nature and Origin of Hindu Law

What is Hindu Law ?

Law, according to Hindu Jurists, is the enforceable part of Dharma. Law is Dharma itself.

Dharma

The word Dharma is derived from the root ‘dhri’ (to hold, support or maintain) and it means Law or Duty, or the essential quality of persons or things.

By the Term Dharma is understood as the rules which govern the whole mankind.

The word Dharma generally includes all kind of rules, religious, moral, legal, physical, metaphysical or scientific in the same way as law does, in the widest sense.

Excellence of Hindu Law

It is one of the most ancient systems of law known to the world.

Hindu law is not Lex Loci

It should also be noted that the Hindu Law is not a territorial law. In otherwards it is not a “lex-loci”. (Law of Locality ie. Which applies only to a particular locality or state) but a “personal law”

It means that a Hindu, in whatever country he may be, is governed by Hindu Law in all personal matters.

Territorial law of that country would not apply on the ‘personal matters’ of that Hindu.