Hindu law Notes.

  

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Table of content

1-Introduction to Hindu law. 

2-Origin of Hindu law

3Nature of Hindu law. 

* HINDU LAW

Law, according to Hindu jurists, is the enforceable part of Dharma. Basically, law is Dharma itself. The word Dharma is derived from the root word 'dhri"(to hold, support maintain) and it means law or duty, or the essential quality of person or thing. 

According To Mayne, Hindu Law is the Law of Smritis as expounded in the Sanskrit Commentaries and Digests which is modified and supplemented by custom, and is administered by the courts. 

Dharma: Dharma has been defined as, "what is followed by those, learned in Vedas and what is approved by the conscience of the virtues who are exempt from hatred and inordinate affection. 

* Origin

There are two extreme views about the origin of Hindu Law

1-Divine Origin According to Hindus)  

2-Origin from Customs and Usages (According to Western Jurists)

1. Divine Origin: According to Hindus, Hindu Law is of divine origin, having been derived from the Vedas, which are revelations from the Almighty. 

According to this theory, law is independent of the State, and it was binding on the sovereign as well as on his subjects. It is Apauruseya(not of human origin) The person disobeying the law would incur displeasure of God and he would suffer in the next world after death 

2 Origin from Immemorial Custom and Usages- Who do not accept the Hindu idea of divine origin of Hindu laws, according to western jurists, it is based upon immemorial customs, which existed prior to and independent of Brahmanism. 

                When the Aryans penetrated into Indian territory, they found out certain usages are either same as or not wholly different from their own. They accepted their usages with or without modifications rejecting only those that are incapable of being assimilated such as polyandry, incestuous marriages, etc. Subsequently Brahmanism modified the current customs by introducing the religious element into legal conceptions. 

• Both the views were rejected by prof. Mayne, he was of opinion that the smritis and commentaries and digests thus formed authoritative sources of law. They were enforced by the kings in the administration of justice. The rules laid down in the sources were by and large of practical significance, since the commentaries were written under the patronage of the rulers, their authority was vehemently acknowledged, and they further became the primary sources of law. 

Nature of Hindu law

1. Dharma- Hindu law is based upon the Dharma which means the duties to be performed.

2. Permanent: Hindu law is a permanent law which governs every Hindu and it cannot be violated

3 Based on Ethical Principles: Hindu law is based on the ethical principles as propounded in the Vedas, i.e., ancient texts.

4 Not Lex Loci: It should also be noted that Hindu Law is not a territorial Law. In other words, it is not a Lex Loci (law of locality, i e, 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. 

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