There are eight
sources of Hindu Law. These are:
1.Shruti
2. Smriti
3.Custom
4.Commentaries
5.Puran
6.Statute
7.Judicial Precedent
8.Equity, Justice and Good Conscience
Shruti:
ÒLiteral meaning:
which was been heard
ÒShruti
means direct verse of the God without fault which has been heard by Muni, Rishi
or Sages.
ÒIt is the original
texts of Dharmashastras.
ÒThough the Shruti
is the primary source of religion and law, the Shruties
do not contain positive law.
ÒShruties
divided into:
1. 4 Vedas
2. 6 Vedangas
3. Upanishads
ÒThe four Vedas are: Rigveda,
Sam veda, Yajur veda, Atharva veda.
ÒRigveda:
Ò It is called veda
of verses.
ÒIt is a collection of
1028 Vedic Sanshrit hymns and 10600 verses organized into ten books. The
hymns are dedicated to Rigvedic deities.
ÒIt was composed in Ambala
district of Punjab during 10 or 11 BC. Ambala
was the ancient residence of Aryan.
ÒRigveda
is called the first written religious book of the earth.
ÒRigveda
contains the law, rules, living style of the Aryan society prevailed in 10 BC.
ÒTheft, robbery,
fornication were considered as sinful act though punishments have not been
imposed. Even touching was regarded as fornication.
ÒRules regarding
marriage, polygamy, dissolution, marriage of widow, succession are found
ÒSamveda:
It is called veda of chant consisting of prayers composed in metre.
ÒYajur
Veda: The veda of sacrificial formula.
ÒAthava
Veda: Veda of incantations, imprecatory formula and prayers for averting
calamities. The first part consists of spells and incantations concerned with
protection against demons and disaster, for the healing of diseases, for long
life and for various desires or aims in life.
The second part contains speculative and
philosophical hymns
Ò
Vedanga:
ÒLiteral meaning limbs
of the Veda.
ÒThe Vedangas
are six auxiliary disciplines traditionally associated with the study and
understanding of the Vedas.
ÒThese are:
1. Shiksha:
Phonetics, phonology and morphology (sandhi).
2.Kalpa: religious rituals
3.Vyakarana: grammar
4.Nirukta: etymology
5. Chandas:
metre
6. Jyotisha:
Astronomy
ÒUpanishads:
ÒThe literally meaning
is "sitting down near" or "sitting close to“ which implies
listening closely to the mystic doctrines of a guru
or a spiritual teacher, who has cognized the fundamental truths of the
universe.
ÒThese are a
collection of Vedic texts which contain some of the central religious and
philosophical concepts of Hinduism, Buddhism and Jainism.
ÒThey are also known
as Vedanta (the end of Veda).
Ò In upanishads
the central fundamental
teachings of Hinduism — the concepts of 'karma'
(action), 'samsara'
(reincarnation), 'moksha'
(nirvana), the 'atman'
(soul), and the 'Brahman'
(Absolute Almighty) are found.
ÒMore than 200
Upanishads are known and most important
are known as the principal or main (mukhya)
Upanishads.
ÒChandogya,
Talavakara, Aitreya-Aranyaka,
the Kaushitaki-Brahmana, Katha, the Vajasaneyi
Samhita, Katha-Upanishad, Mundaka
Upanishad, Taittirîyaka-Upanishad, Brihadâranyaka
Upanishad, Svetâsvatara Upanishad, Prasña
Upanishad, Maitrâyana Brâhmana
Upanishad
SMRITI
ÒLiteral
meaning recollection
ÒAccording
to Manu “what was remembered from the beginning”.
ÒSmritis
are established on the forgotten Vedas or Srutis.
ÒAccording
to D.F.Mullah Smritis
are the primary sources of Hindu Law.
ÒWhere
there is conflict between the Vedas and the Smriti,
the Vedas shall prevail.
ÒAmong
the many smritis there are three prominent smritis.
ÒThese
are:
Ò1.
Manu Smriti or Institute of Manu
Ò2.
Yajnavalkya Smriti
or the Institute of Yajnavalkya
Ò3.
Narada Smriti or Naaradiya Dharmasastras
ÒManu
Smriti:
Ò This Code of Manu
compiled in about 200 BC.
ÒIt is one of the
leading Smritis.
ÒIt is the most
authoritative reservoir of law.
ÒThe laws collected
here are easy to comprehend, systematic and clear.
ÒIn Manus Smriti
laws regarding succession, property, contract, partnership, master servant
relationship are found.
Ò
ÒYajnavalkya
Smriti:
ÒIt
has been compiled within 5th
to 8th
AD.
ÒThis
code is based on Manu Smriti but it is liberal than Manu Smriti
as comparatively less severe punishments have been prescribed.
ÒIt
is scientific and constructive.
ÒWomen’s
rights and the status of Sudras have been recognized greatly than the other Smritis.
Ò
ÒNarada
Smriti:
ÒIt is compiled in
about 200 AD
ÒIt is the abridged
version of the Manu Smriti.
ÒOne of the features
of this Smriti is that it has accepted that the King made law can
override any law mentioned in Smriti.
ÒOther
Smritis are:
ÒGautama Dharma-sūtra
ÒBaudhayana
Dharma-sūtra
ÒVāsiṣṭha
Dharma-sūtra
ÒĀpastamba
ÒParashara
Smriti
ÒVishnu Smriti
CUSTOM
ÒSmritis
or Dharmasastras are mainly
established on customs
ÒIf there is conflict
between established custom and a text of law, custom shall override the text.
ÒThere are three types
customs recognized under Hindu law:
Ò1. Local Custom-
followed by all the peoples of a locality
Ò2. Class Custom-
followed by a class e.g. Brahmin, Khatriya,
Baishya or Sudra.
Ò3. Family Custom-
followed by a family.
ÒFor the validity as a
law a custom must be ancient, certain and reasonable.
ÒIt must not be
opposed to morality or public policy and the legislature.
Ò
Commentaries
Ò Commentaries
are also called Interpretation or Digest or Nibandha.
Ò As
the Smritis were composed by the Sages on the basis of memory and
customs, conflicts arose among various Smritis
on the same issue.
Ò To
remove those conflicts interpretations were needed.
Ò Commentaries
emerged in course time.
Ò When
comments or interpretations of a commentator has been accepted by the people of
one locality, that emerged as a school of Hindu Law.
Ò
In this way two schools of Hindu law, Mitakshara
and Dayabhaga, are formed.
PURAN
ÒThese
are generally poetry with historical story.
ÒThere
are 18 Maha Puranas (Great Puranas) and 18 Upa Puranas (Minor Puranas).
ÒThe
names of 18 Purans are:
ÒAgni
Puran
ÒThough
these are the sources of historical event and called fifth Vedas, are not
sources of Hindu law.
Judicial Decision
ÒThe decisions of the
Supreme Court are binding for the subordinate Courts as well as Hindus.
ÒAs Hindu laws are
mainly based on customs, the decision of the Supreme court were necessary and a
large amount of decisions have been formulated by the Court upon diverse topics
of Hindu law.
ÒSo, it plays an
important source of Hindu law.
ÒThis is also called
living source of Hindu Law.
STATUTES
ÒIn
course of time, Hindu laws have been modified by the state through
legislations.
ÒSuch
legislations on Hindu law applied in Bangladesh are following:
ÒCaste
Disabilities Removal Act, 1850
ÒHindu
Widow’s Remarriage Act’ 1856
ÒNative
Converts Marriage Dissolution Act’ 1866
ÒHindu
Wills Act’ 1870
ÒSpecial
Marriage Act’ 1872
ÒHindu
Inheritance (Removal of Disabilities Act)’ 1928
ÒHindu
Law of Inheritance (Amendment) Act’ 1929
ÒHindu
Gains of Learning Act’ 1930
ÒHindu
Women’s Rights to Property Act’ 1937
EQUITY, JUSTICE AND GOOD CONSCIENCE
ÒEquity
is also recognized as source under Hindu Law.
ÒIf
there is no law is found in any matter in the texts or in the customs, the
established rule of equity, justice and good conscience shall apply.
ÒManu
and Yajnavalkya both recognized this
as source but mentioned such rule must be consistent with the main object of
Hindu religion.
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