Friday, 28 January 2022

nature and origin of hindu law

 Nature and Origin of Hindu Law

According to the Hindu Jurist, Law is the enforceable part of dharma. The word dharma has been derived from the world ‘dhri’ which means to support or maintain, and it means that dharma is a part of life and the reason for the human existence. Hindu Law is one of the most ancient systems of law and even today it holds the same value like it had thousand years before. Hindu Law is not a lex-loci (law of locality), but it is a personal law, which means that the religion of a Hindu follows him in which ever country he maybe.

About the origin of Hindu Law, there are two extreme views. According to the Hindus, Hindu Law is of divine origin, and it has been derived from the Vedas which is a direct source from the almighty. Since law is the king of kings, nothing can be more powerful than the law and it was believed that the person disobeying the law would invite wrath of god and he would suffer in his next world after death. 

According to the western jurist, they did not accept the Hindu Law having divine origin rather they believed that it is based upon immemorial customs. When the Aryans for the first time came to India they found that there were a number of usages and practices that were completely different from their own. They accepted only those practices which were for the benefit of the society. Subsequently Brahmanism modified some of these practices by introducing religious elements into the practices. Firstly, they added restrictions that were suitable for the holy purposes and most importantly they modified them in such a way that it ultimately favoured Brahmanism. 

However, according to Brahman, both the views referred above were incorrect. He stated that since the publication of the original textbooks, the translated commentaries and digest and the research work may get quite evident that smritis were based upon the contemporary or anterior usages as and partly based on rules framed by the Hindu Jurists and the ruler of the country, thus both the smritis and commentaries formed the authoritative rule of law. They were enforced by the King in the administration of justice, and since most of the commentaries were written under the patronage of the rulers their authority was widely acknowledged and it became a primary source of law. 

Who are Hindus ?

The term Hindu denotes all those person who practice Hindu Religion either by birth or by conversion to Hindu to the faith. Hindus are therefore not only born but they’re also made, and therefore, the applicability of Hindu Law is not restricted to those persons who are only Hindus by birth. A non-Hindu can renounce his religion and become Hindu by conversion, by any of the three methods: 

  1. If he performs the ceremony of conversion prescribed by the caste of the community to which he converts.

  2. If he expresses his intention to become a Hindu, and the community accepts him as a member 

  3. If he declares that he’s a Hindu and lives as a Hindu.

Thus, the following people can be considered as a Hindu: 

  1. Hindus by birth, or religion, or conversion. 

  2. Illegitimate children where both parents are Hindus 

  3. Illegitimate children where the father is a Christian and the mother a Hindu, and the children are brought up as Hindus 

  4. A Hindu by birth who has renounced Hinduism had once again reconverted to Hindu religion by performing all the religious rights and rights of repentance. He can once again become a Hindu without following the rituals of reconversion if the community has accepted him. 

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