Hindu law
Hindu law, as a historical term, refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British India. Hindu law, in modern scholarship, also refers to the legal theory, jurisprudence and philosophical reflections on the nature of law discovered in ancient and medieval era Indian texts. It is one of the oldest known jurisprudence theories in the world, beginning three thousand years ago, and is based on the Hindu texts.
Hindu tradition,in its surviving ancient texts, does not universally express the law in the canonical sense of ius or of lex. The ancient term in Indian texts is Dharma, which means more than a code of law, though collections of legal maxims were compiled into works such as the Nāradasmṛti. The term "Hindu law" is a colonial construction, and emerged after the colonial rule arrived in Indian subcontinent, and when in 1772 it was decided by British colonial officials, that European common law system would not be implemented in India, that Hindus of India would be ruled under their "Hindu law" and Muslims of India would be ruled under "Muslim law".
The substance of Hindu law implemented by the British was derived from a Dharmaśāstra named Manusmriti, one of the many treatises on 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 the British colonial officials chose to do so. Rather, Dharmaśāstra contained jurisprudence commentary, i.e., a theoretical reflection upon practical law, but not a statement of the law of the land as such. Scholars have also questioned the authenticity and the corruption in the Manusmriti manuscript used to derive the colonial era Hindu law.
In colonial history context, the construction and implementation of Hindu law and Islamic law was an attempt at "legal pluralism" during the British colonial era, where people in the same region were subjected to different civil and criminal laws based on the religion of the plaintiff and defendant. Legal scholars state that this divided the Indian society, and that Indian law and politics have ever since vacillated between "legal pluralism – the notion that religion is the basic unit of society and different religions must have different legal rights and obligations" and "legal universalism – the notion that individuals are the basic unit of society and all citizens must have uniform legal rights and obligations".
Terminology and nomenclature
In Hinduism, law is discussed as a subset of dharma which signifies behaviors that are considered in accord with rta, the order that makes life and the universe possible, and includes duties, rights, laws, conduct, virtues and ‘'right way of living'’. The concept of Dharma includes Hindu law.In ancient texts of Hinduism, the concept of dharma incorporates the principles of law, order, harmony, and truth. It is explained as the necessary law of life and equated to satya, in hymn 1.4.14 of Brhadaranyaka Upanishad, as follows:
Related terms
In ancient Hindu jurisprudence texts, a number of Sanskrit words refer to aspects of law. Some of these include Niyama, Nyaya, Yuktata, Samya, Vidhi, Vyavastha, Sambhasa, Prasamvida-patra, Vivadayati, Adhivakta, Nyayavadi, Nyayavadini, Nyayadata, Danda, among others.Classical Hindu law
John Mayne, in 1910, wrote that the classical Hindu law has the oldest pedigree of any known system of jurisprudence. Mayne noted that while being ancient, the conflicting texts on almost every question presents a great difficulty in deciding what the classical Hindu law was. As more literature emerges, and is translated or interpreted, Mayne noted that the conflict between the texts on every matter of law has multiplied, and that there is a lack of consensus between the Western legal scholars resident in India.Ludo Rocher states that Hindu tradition does not express law in the sense of ius nor of lex. The term "Hindu law" is a colonial construction, and emerged when the colonial rule arrived in South Asia, and when in 1772 it was decided by British colonial officials in consultation with Mughal rulers, that European common law system would not be implemented in India, that Hindus of India would be ruled under their "Hindu law" and Muslims of India would be ruled under sharia. However, Hindu law was neither mentioned, nor in use, nor codified, during the 600 years of Islamic rule of India. An attempt was made to find any old surviving Sanskrit text that mentioned elements of law, and this is how Western editors and translators arrived at the equation that "dharma shastra equals lawbook, code or Institute", states Rocher.
Scholars such as Derrett, Menski and others have repeatedly asked whether and what evidence there is that the Dharmasastras were the actual legal authority before and during the Islamic rule in India. They have also questioned whether the Dharmasastras contain "precepts" or "recommendations", that is whether the jurisprudence mentioned in Dharmasastras was actually ever used in disputes in Indian society. Early scholars during the British colonial rule such as John Mayne suggested that it is probable that Dharma-smriti texts reflect the "practical administration of law", at least before the arrival of Islam in India. However, most later scholars state that Dharma texts of Hinduism are "purely or mostly concerned with moral and religious norms which have some but not a very close relationship to legal practice". A few scholars have suggested that the Dharma-related Smritis such as Manusmriti, Naradasmriti and Parashara Smriti do not embody the Hindu law but are commentaries and scholarly notes on more ancient authoritative legal texts that have been lost or yet to be found.
Classical Hindu law, states Donald Davis, "represents one of the least known, yet most sophisticated traditions of legal theory and jurisprudence in world history. Hindu jurisprudential texts contain elaborate and careful philosophical reflections on the nature of law and religion. The nature of Hindu law as a tradition has been subject to some debate and some misunderstanding both within and especially outside of specialist circles."
In South India, temples were intimately involved in the administration of law.
Cited texts
Unlike the Bible & Quran, the Vedas don't discuss about societal matters directly. Classical Hindu law is derived from the following sources''Dharmasutra''
As a part of the Kalpa texts within the Vedanga corpus of literature, they deal with personal conduct & social regulations in accordance to the principles of the Vedas. The texts are| Veda | Dharmasutra |
| Rigveda | Vasistha Dharmasutra |
| Samaveda | Gautama Dharmasutra |
| Krishna Yajurveda | Apastambha Dharmasutra Harita Dharmasutra Hiranyakesi Dharmasutra Vaikhanasa Dharmasutra Vishnu Dharmasutra |
| Sukla Yajurveda | Sankha-Likhita Dharmasutra |
| Atharvaveda | Aushanasa Dharmasutra |
''Dharmashastra''
These texts, whose authorships are traditionally attributed to the Vedic sages, elaborate the topics discussed in the dharmasutras.Dharmashastras available in printed format are
- Angirasa smriti
- Atri smriti
- Apastambha smriti
- Aushanasa smriti
- Brihaspati smriti
- Brihat Parashara smriti
- Daksha smriti
- Devala smriti
- Gobhila smriti
- Gautama smriti
- Harita smriti
- Katyayana smriti
- Kashyapa smriti
- Laghu Atri smriti
- Laghu Harita smriti
- Laghu Vishnu smriti
- Laghu Shankha smriti
- Likhita smriti
- Manu smriti
- Narada smriti
- Parashara smriti
- Prajapati smriti
- Samvarta smriti
- Shankha smriti
- Shankha-Likhita smriti
- Shatatapa smriti
- Vasistha smriti
- Vyasa smriti
- Vishnu smriti
- Vriddha Atreya smriti
- Yajnavalkya smriti
- Yama smriti
- Budha smriti
- Chhagaleya smriti
- Cyavana smriti
- Jamadagni smriti
- Jabala smriti
- Marichi smriti
- Prachetas smriti
- Pitamaha smriti
- Paithinasi smriti
- Rishyasringa smriti
- Sumantu smriti
- Shaunaka smriti
- Vishwamitra smriti
Commentaries
''Nibandha''s
Digests & compendiums composed by various scholars attempt to resolve difference of opinion on similar topics among the various texts & authors.Regional variations
In the Collector of Madhura Vs Mottoo Ramalinga Sathupathy case, the Privy Council observed that there was no uniformity in the observance of Hindu law by Hindus throughout the realm. The court observed that- On the basis of adherence to property law, Hindus are divided into 2 schools –
- the Dayabhaga school, observed by Hindus in Bengal & Assam,
- the Mitakshara school observed by all other Hindu communities of the Indian subcontinent.
- The Mitakshara school is subdivided into
- The Benaras school which cites the Viramitrodaya of Mitra Mishra, Nirnayasindhu & Vivadatandava of, Dattakamimasa of Nanda Pandita, Subodhini & Balambhatti commentaries of the Mitakshara as authority and is observed by Hindus of United Provinces, Central Provinces & Odisha.
- The Mithila school which cites Vivadachintamani of Vachaspati Mishra, Vivadaratnakara of Chandeshvara Thakura, Vivadachandra of Misaru Mishra, Smrityarthasara of Sridhara & Madanaparijata of Vishveshvara Bhatta as authority & is observed by Hindus of Mithila
- The Dravida school which cites Smritichandrika of Devanna Bhatta, Parasharamadhaviya, Sarasvativilasa of Prataparudra Deva, Viramitrodaya, Vyavaharanirnaya of Varadaraja, Dattakachandrika of Devanna Bhatta, Nirnayasindhu, Vivadatandava, Dayavibhaga of Kamalakara Bhatta & Keshavavaijayanti as authority & is observed by Hindus of Madras Presidency.
- The Maratha School which cites Vyavaharamayukha of Nilakantha Bhatta, Smritikaustubha of Ananta Deva, Viramitrodaya, Nirnayasindhu, Vivadatandava & Parasharamadhaviya as authority and is observed by Hindus of Bombay Presidency.
- The Punjab school which cites Nirnayasindhu, Viramitrodaya & local customs as authority and is observed by Hindus of Punjab. Kashmiri Hindus additionally cite the Apararkachandrika
- The Dayabhaga school cites Viramitrodaya & Dattakachandrika as authority. Bengali Hindus additionally cite the Smrititattva of Raghunandana & works of Bengali pandits like Halayudha, Bhavadeva Bhatta & Shulapani while Assamese Hindus cite the works of Pitambara Siddhantavagisha & other pandits from the Kamarupa like Damodara Mishra & Nilambaracharya
- The Mitakshara doesn't allows partition of ancestral property among coparceners, while the Dayabhaga does.
- The Mitakshara completely bars women & their descendants from inheriting ancestral property, however the Dayabhaga allows childless widows to inherit property of their sonless fathers & childless husbands.
- According to Mitakshara, right of inheritance is vested by birth, hence the son is a coparcener to ancestral property from the day of his birth. However, in Dayabhaga, right of inheritance is vested by the right to offer pinda at sraddha ceremony, hence the son has no ownership on ancestral property during his father's lifetime.