The phrase “ beginning of jurisprudence ” has several intensions. It may be the authorization which issues regulations of behavior which are recognized by Courts as binding. In this context, ‘source of jurisprudence ‘ means ‘the shaper of jurisprudence ‘ . It may intend the societal conditions which inspires the devising of jurisprudence for the administration of the conditions. In this context it means ’cause of jurisprudence ‘ . It may besides intend in its actual sense the stuff from which the regulations and Torahs are known. In this sense the look means the ‘evidence of jurisprudence ‘ and it is in this sense that the look ‘source of jurisprudence ‘ is accepted in Jurisprudence.
Vijnaneshwar ( observer on the Yajnavalkya Smriti and laminitis of Mitakshara School ) has called it Jnapak Hetu i.e. , the agencies of cognizing jurisprudence. It is of import to analyze the beginnings of jurisprudence because in every personal legal system merely that regulation is jurisprudence which has topographic point in its beginnings. A regulation non laid down or non recognized in the beginnings is non a regulation in that legal system.
The word ‘Hindu ‘ first appeared in theA Old PersianA linguistic communication which was derived from theA SanskritA wordA Sindhu, the historic local appellation for theA Indus RiverA in the north-western portion of theA Indian subcontinent. A Hindu is an disciple of Hinduism.
Hindu jurisprudence is a set of personal Torahs regulating the societal conditions of Hindus ( such as matrimony and divorce, acceptance, heritage, minority and care, household affairs, etc. ) . It is non Hindus entirely who must follow Hindu jurisprudence but there are several other communities and spiritual denominations that are capable to its rule such as Jains, Buddhists, Sikhs, Brahmo-Samajists, Prarthana-Samajists, the Virashaivas and Lingayats and the Santhals of Chhota Nagpur besides others.
In Sir Dinshah F.Mulla ‘s ‘Principles of Hindu Law ‘ , the learned editor has defined ‘Hindu jurisprudence ‘ in the undermentioned words: “ Wherever the Torahs of India admit operation of a personal jurisprudence, the rights and duties of a Hindu are determined by Hindu jurisprudence, i.e. his traditional jurisprudence, sometimes called the jurisprudence of his faith, capable to the exclusion that any portion of that jurisprudence may be modified or abrogated by legislative act. ” Law as understood by Hindus is a subdivision of Dharma.
Nature and range: In the article undertaking, the range will be restricted to happening out the beginnings of Hindu jurisprudence, and review on some of the definitional facets of the beginnings and a general review of the beginnings.
Beginnings of Hindu Law
The beginnings of Hindu jurisprudence can be classified under the undermentioned two caputs:
Under this would come the followers:
Digests and Comments and
Under this caput would come:
Justice, equity and good scruples
It literally means that which has been heard. The word is derived from the root “ shru ” which means ‘to hear ‘ . In theory, it is the primary and overriding beginning of Hindu jurisprudence and is believed to be the linguistic communication of the Godhead disclosure through the sages.
The equivalent word of shruti is veda. It is derived from the root “ vid ” intending ‘to know ‘ . The term Veda is based on the tradition that they are the depository of all cognition. There are four Vedas viz. , Rig Veda ( incorporating anthem in Sanskrit to be recited by the main priest ) , Yajurva Veda ( incorporating expressions to be recited by the officiating priest ) , Sama Veda ( incorporating poetries to be chanted by visionaries ) and Atharva Veda ( incorporating a aggregation of enchantments and conjurations, narratives, anticipations, apotropaic appeals and some bad anthem ) .
Each Veda has three parts viz. Sanhita ( which consists chiefly of the anthem ) , Brahmin ( tells us our responsibilities and agencies of executing them ) and Upanishad ( incorporating the kernel of these responsibilities ) . The shrutis include the Vedas along with their constituents.
The word Smriti is derived from the root “ smri ” intending ‘to remember ‘ . Traditionally, Smritis contain those parts of the Shrutis which the sages forgot in their original signifier and the thought whereby they wrote in their ain linguistic communication with the aid of their memory. Therefore, the footing of the Smritis is Shrutis but they are human plants.
There are two sorts of Smritis viz. Dharmasutras and Dharmashastras. Their capable affair is about the same. The difference is that the Dharmasutras are written in prose, in short axioms ( Sutras ) and the Dharmashastras are composed in poesy ( Shlokas ) . However, on occasion, we find Shlokas in Dharmasutras and Sutras in the Dharmashastras. In a narrow sense, the word Smriti is used to denote the poetical Dharmashastras.
The figure of Smriti authors is about impossible to find but some of the celebrated Smriti authors enumerated by Yajnavalkya ( sage from Mithila and a major figure in the Upanishads ) are Manu, Atri, Vishnu, Harita, Yajnavalkya, Yama, Katyayana, Brihaspati, Parashar, Vyas, Shankh, Daksha, Gautama, Shatatapa, Vasishtha, etc.
The regulations laid down in Smritis can be divided into three classs viz. Achar ( associating to morality ) , Vyavahar ( meaning procedural and substantial regulations which the King or the State applied for settling differences in the adjudication of justness ) and Prayaschit ( meaning the penal proviso for committee of a incorrect ) .
Digests and Commentaries-
After Shrutis came the epoch of observers and digests. Comments ( Tika or Bhashya ) and Digests ( Nibandhs ) covered a period of more than thousand old ages from seventh century to 1800 A.D. In the first portion of the period most of the commentaries were written on the Smritis but in the ulterior period the plants were in the nature of digests incorporating a synthesis of the assorted Smritis and explicating and accommodating the assorted contradictions.
The development of the different schools of Hindu jurisprudence has been possible on history of the different commentaries that were written by assorted governments. The original beginning of Hindu jurisprudence was the same for all Hindus. But schools of Hindu jurisprudence arose as the people chose to adhere to one or the other school for different grounds. The Dayabhaga and Mitakshara are the two major schools of Hindu jurisprudence. The Dayabhaga school of jurisprudence is based on the commentaries of Jimutvahana ( writer of Dayabhaga which is the digest of all Codes ) and the Mitakshara is based on the commentaries written by Vijnaneswar on the Code of Yajnavalkya.
Custom is regarded as the 3rd beginning of Hindu jurisprudence. From the earliest period usage ( ‘achara ‘ ) is regarded as the highest ‘dharma ‘ . As defined by the Judicial Committee usage signifies a regulation which in a peculiar household or in a peculiar category or territory has from long use obtained the force of jurisprudence.
Custom is a rule beginning and its place is following to the Shrutis and Smritis but use of usage prevails over the Smritis. It is superior to written jurisprudence. There are certain features which need to be fulfilled for declaring usage to be a valid 1. They are: –
The usage must be ancient. The peculiar use must hold been practised for a long clip and accepted by common consent as a regulating regulation of a peculiar society.
The usage must be certain and should be free from any kind of ambiguity. It must besides be free from trifles.
The usage must be sensible and non against any bing jurisprudence. It must non be immoral or against any public policy and
The usage must hold been continuously and uniformly followed for a long clip.
Indian Courts recognize three types of imposts viz: ( a ) Local usage – these are imposts recognised by Courts to hold been prevalent in a peculiar part or vicinity. ( B ) Class usage – these are imposts which are acted upon by a peculiar category. Eg. There is a usage among a category of Vaishyas to the consequence that abandonment or forsaking of the married woman by the hubby abrogates the matrimony and the married woman is free to get married once more during the lifetime of the hubby. ( degree Celsius ) Family custom – these are imposts which are adhering upon the members of a household. Eg. There is a usage in households of ancient India that the eldest male member of the household shall inherit the estates.
Justice, equity and good conscience-
Occasionally it might go on that a difference comes before a Court which can non be settled by the application of any bing regulation in any of the beginnings available. Such a state of affairs may be rare but it is possible because non every sort of fact state of affairs which arises can hold a corresponding jurisprudence regulating it.
The Courts can non decline to the settee the difference in the absence of jurisprudence and they are under an duty to make up one’s mind such a instance besides. For finding such instances, the Courts rely upon the basic values, norms and criterions of fairplay and properness.
In nomenclature, this is known as rules of justness, equity and good scruples. They may besides be termed as Natural jurisprudence. This rule in our state has enjoyed the position of a beginning of jurisprudence since the eighteenth century when the British disposal made it clear that in the absence of a regulation, the above rule shall be applied.
Legislations are Acts of Parliament which have been playing a profound function in the formation of Hindu jurisprudence. After India achieved independency, some of import facets of Hindu Law have been codified. Few illustrations of of import Legislative acts are The Hindu Marriage Act, 1955, The Hindu Adoptions and Maintenance Act, 1956, The Hindu Succession Act, 1956, The Hindu Minority and Guardianship Act, 1956, etc.
After codification, any point dealt with by the statute jurisprudence is concluding. The passage overrides all anterior jurisprudence, whether based on usage or otherwise unless an express economy is provided for in the passage itself. In affairs non specifically covered by the statute jurisprudence, the old textual jurisprudence contains to hold application.
After the constitution of British regulation, the hierarchy of Courts was established. The philosophy of case in point based on the rule of handling like instances likewise was established. Today, the determinations of Privy Council are adhering on all the lower Courts in India except where they have been modified or altered by the Supreme Court whose determinations are adhering on all the Courts except for itself.
A Critique on the Beginnings
It is important to observe that the term ‘Hindu ‘ is non defined anyplace in footings of faith or in any legislative act or judicial determinations. For the intent of finding to whom Hindu Law applies, it is necessary to cognize who is a Hindu and none of the beginnings expressly province so. At most from legislative acts, we can acquire a negative definition of a Hindu which states that Hindu jurisprudence shall use to those who are non Muslim, Christian, Parsi, Jew, etc. and who are non governed by any other jurisprudence.
Hindu Law is considered to be godly jurisprudence as it is strongly believed that the sages had attained some religious rule and they could pass on straight with God signifier whom we get the Godhead jurisprudence. But this is merely an premise and no concrete cogent evidence for the same is shown that the sages could pass on with God ( whose really being is challenged by atheists ) . Due to this, many communities are besides enduring from the mistake or psychotic belief that their sires and christs had disclosures from God.
Justice A.M.Bhattacharjee strongly states that harmonizing to him he can non believe that “ even a staunch truster in any Godhead being, transcendent or immanent, can believe in the ‘divine beginning ‘ of Hindu jurisprudence, unless he has a motor behind such profession of belief or has non read the Smritis or is ready to believe anything and everything with slavish unfaithfulness. ”
Harmonizing to Justice Markandey Katju, Hindu jurisprudence does non arise from the Vedas ( besides called Shruti ) . He vehemently asserts that there are many who propound that Hindu jurisprudence originated from the Shrutis but this is a fiction and in fact Hindu jurisprudence originated from the Smriti books which contained Hagiographas from Sanskrit bookmans in ancient clip who had specialized in jurisprudence.
The Shrutis barely consist of any jurisprudence and the Hagiographas ordained in the Smriti do non do any distinct differentiation between regulations of jurisprudence and regulations of morality or faith. In most of the manuscripts, the ethical, moral and legal rules are woven into one. It is possibly for this ground that harmonizing to Hindu tradition, jurisprudence did non intend merely in the Austinian sense of law and is obnoxious to it ; and the word used in topographic point of ‘law ‘ was the Sanskrit word ‘dharma ‘ which connotes faith every bit good as responsibility.
Although Dharmasutras dealt with jurisprudence, they did non supply an anthology of jurisprudence covering with all the subdivisions of jurisprudence. The Manusmriti supplied a much needed legal expounding which could be a collection of jurisprudence. But harmonizing to Kane, “ It is about impossible to state who composed the Manusmriti. ” The really being of Manu is regarded to be a myth by many and he is termed as a fabulous character.
Many critics assert that the word Smriti itself means that what is remembered and hence the cogency or cogent evidence of the bing Smritis could be challenged. It can non be said for certainty that what the sages remembered was really what was propounded.
Hindu jurisprudence has by and large been critiqued on the evidences that the Smritis and other imposts were by and large highly Orthodox and against the favor of adult females. Hindu society therefore has ever been a patriarchal society and adult females have ever received subdued importance over work forces. Some besides disapprove of the impressions of caste-based system created by ancient Hindu jurisprudence from which emerged the ill-perceived patterns of untouchability, etc.
The Smritis are admitted to possess independent authorization but while their authorization is beyond difference, their significances are unfastened to assorted readings and has been and is the topic of much difference. Till day of the month, no 1 can state for certain the exact sum of Smritis which exist under Hindu jurisprudence. It is due to the abovementioned jobs that the digest and commentaries were established and assorted schools of Hindu jurisprudence started to give birth.
The modern beginnings of Hindu jurisprudence such as Justice, equity and good scruples have been critiqued on the evidences that it paves the manner for personal sentiments and beliefs of Judgess to be made into jurisprudence. We have seen catena of instances where the determinations of the Court have been criticised for privation of proper logical thinking. This besides signifies the rawness of the Torahs which exist.
The Supreme Court in most affairs has ascertained the regulations of Hindu jurisprudence successfully but there are twosome of instances where they have interpreted the regulations in their ain visible radiation. One of the gravest instances of the Supreme Court which deserves much unfavorable judgment is the instance of Krishna Singh v. Mathura Ahir. The Allahabad High Court had justly held that the prejudiced prohibition imposed on the Sudras by the Smritis stands abrogated as it contravenes the Fundamental Rights guaranteed by the Constitution.
However, the Supreme Court contradicted the above position and held that “ Part III of the Constitution does non touch upon the personal Torahs of the parties. In using the personal Torahs of the parties one can non present his ain constructs of modern times but should implement the jurisprudence as derived from recognised and important beginnings of Hindu jurisprudence… .except where such jurisprudence is altered by any use or usage or is modified or abrogated by legislative act. ”
It can be submitted with easiness that the above position is contrary to all Constitutional theories and is expressly in contradiction with Article 13. It is flooring to observe that this judgement is yet to be over-ruled in express footings.
Since the auspices of clip, Hindu jurisprudence has been reformed and modified to some extent through statute laws but these reforms have been halfhearted and fragmental. The job with fragmental reforms is that though reforms were made to alter some facets, their deductions on other facets were over-looked. For illustration, the Hindu Women ‘s Right to Property Act, 1937, was passed with a position to allowing belongings rights to adult females but its reverberations on the jurisprudence of joint household was over-looked. The consequence was that fragmental reforms through statute laws solved some jobs but resulted in others.
Many people make the error of sing assorted text books written by learned bookmans as beginnings of Hindu jurisprudence. This is because the Courts have decided many instances trusting on these text books and quoted them for mention. For illustration, Mulla ‘s Hindu Law has been quoted by many Judgess. In Bishundeo v. Seogani Rai, Justice Bose giving the bulk judgement stated that “ The regulation laid down in Mulla ‘s book is expressly stated to be in instances where the place is non effected by a edict of a competent Court. ” The same has been the instance with many other text books. It should be made clear that text books are non beginnings of Hindu jurisprudence and the writers have no authorization to put down the jurisprudence.
It has been seen that Hindu jurisprudence has been critiqued for its orthodoxy, patriarchal character and does non bear a really modern mentality of society. There are many countries where the Hindu jurisprudence needs to upgrade itself, for illustration, the unretrievable dislocation theory as a valid land for divorce is still non recognised under the Hindu Marriage Act, 1955, and even the of Supreme Court have expressed their concern on this.
The most valid concern is that the really definition of a ‘Hindu ‘ is still non given in any of the beginnings. Legislative acts give merely a negative definition which does non do the trial of clip. The really proponent that Hindu jurisprudence is godly jurisprudence has been challenged by bookmans and atheists.
There are many Smritis which are yet to be found harmonizing to Historians and many struggles of sentiments and readings have arisen for the bing 1s, therefore making a window of ambiguity under Hindu jurisprudence. There are besides several countries where Hindu jurisprudence is soundless.
Most of the ancient beginnings of Hindu jurisprudence is written in Sanskrit and it is good known that in the present times there is a famine of Sanskrit bookmans. There is barely any importance left of the antediluvian beginnings since the clip the modern beginnings have emerged and been followed.
It can be said that proper codification of Hindu jurisprudence without room for ambiguity is the demand of the hr. It can be said that where the present beginnings of Hindu jurisprudence are uninviting the Legislature could look into beginnings and imposts of other faiths and integrate them into Hindu jurisprudence if it caters to the demand of the society and meets the trial of clip.