Family Law 2

Topics: Sharia, Islam, Fiqh Pages: 25 (8853 words) Published: February 21, 2013
Unit 1: Family Relations
Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act 1956, Hindu Minority and Guardianship Act 1956, and Hindu Succession Act 1956. Application of Hindu Law
The following people are considered to be Hindu with respect to application of Hindu Law. * Hindu by Religion - A person who is Hindu, Jain, Bauddha, or Sikh by religion. Converts and Reconverts are also Hindus. SC, in the case of Peerumal v Poonuswami AIR 1971, has held that a person can be a Hindu if after expressing the intention of becoming a Hindu, follows the customs of the caste, tribe, or community, and the community accepts him. * Hindu by Birth - A person who is born of Hindu parents. If only one parent is a Hindu, the person can be a Hindu if he/she has been raised as a Hindu. In Sapna vs State of kerala, Kerala HC, the son of Hindu father and Christian mother was held to be a Christian. * Persons who are not Muslim, Christian, Jew, or Parsee by religion. * Persons who are not governed by any other religious law will be governed by Hindu Law. Origin of Hindu Law

It is believed that Hindu law is a divine law. It was revealed to the people by God through Vedas. Sources of Hindu Law: Ancient and Modern.
1. Ancient Sources: four categories:
A. Shruti
Shruti means "what is heard". It is believed that the rishis and munis were revealed the knowledge of Vedas. shrutis include the four vedas - rig, yajur, sam, and athrava along with their brahmanas. Vedas primarily contain theories about sacrifices, rituals, and customs. Vedas do refer to certain rights and duties, forms of marriage, requirement of a son, exclusion of women from inheritance, and partition but these are not very clearcut laws. Shrutis basically describe the life of the Vedic people. The vedic period is assumed to be between 4000 to 1000 BC. B. Smruti

Smrit means "what is remembered". With smrutis, a systematic study and teaching of Vedas started. Many sages, from time to time, have written down the concepts given in Vedas. The smrutis can be divided into two - Early smritis (Dharmasutras) and Later smritis (Dharmashastras). Dharmasutras

The Dharmansutras were written during 800 to 200 BC. They were mostly written in prose form but also contain verses. Some of the important sages whose dharmasutras are known are : Gautama, Baudhayan, Apastamba, Harita, Vashistha, and Vishnu. They explain the duties of men in various relationship. Dharmashastras

Dharmashastras were mostly in metrical verses and were based of Dharmasutras. They dealt with the subject matter in three parts: Aachara : This includes the theories of religious observances, Vyavahar : This includes the civil law.

Prayaschitta : This deals with penance and expiation.
While early smrutis deal mainly with Aachara and Prayaschitta, later smrutis mainly dealt with Vyavahar. Out of may dharmashastras, three are most important. Manusmriti: Manusmriti was composed in 200 BC. It compiles all the laws that were scattered in pre-smriti sutras and gathas. Yajnavalkya Smriti

Its language is very direct, clear and more logical. He also gives a lot of importance to customs but hold the king to be below the law. He considers law to be the king of kings and the king to be only an enforcer of the law. He was more liberal than Manu. Narada Smriti

Narada was from Nepal and this smriti is well preserved and its complete text is available. This is the only smriti that does not deal with religion and morality at all but concentrates only on civil law. This was composed in 200 AD. C. Commentaries and Digest:

Commentaries were composed in the period immediately after 200 AD. Digests were mainly written after that and incorporated and explained material from all the smruitis. As noted ealier, some of the commentaries were, manubhashya, manutika, and mitakshara. While the most important digest is Jimutvahan's Dayabhag that is applicable in the Bengal and Orissa area. Mitakshara literally...
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