Вы находитесь на странице: 1из 5

Modern Hindu law

From Wikipedia, the free encyclopedia


Modern Marriage law refers to one of the personal law systems of India along with similar
systems for Muslims, Sikhs, Parsis, and Christians. This Hindu Personal Law or modern Hindu
law is an extension of the Anglo-Hindu Law developed during the British colonial period in
India, which is in turn related to the less well-defined tradition of Classical Hindu Law. The time
frame of this period of Hindu law begins with the formal independence of India from Great
Britain on August 14, 1947, and extends up until the present. While modern Hindu law is
heralded for its inherent respect for religious doctrines, many still complain that discrimination
(especially with the historical tradition of the caste system) still pervades the legal system.
Though efforts to modernize and increase the legal rights of the marginalized have been made
(most notably with the passage of the Hindu Code Bills and the establishment of notable legal
precedents), the modern legal situation is, like all legal systems across the world, far from
perfect.

History and Context


With the formal independence of India from Great Britain on August 14, 1947, India acquired a
new constitution as well as a complex legal system. While a Western influence is apparent in this
system, it is not an exact replication. The Indian legal system has characteristics of common law,
but is codified and thus is actually more similar to civil law in nature. The modern Hindu legal
system is applied to strictly personal law, including issues of marriage, inheritance and adoption,
whereas India's secular legal system is applied to issues of criminal law and civil law.
India's first prime minister, Jawaharlal Nehru and the then law minister Dr.Babasaheb Ambedkar
worked to unify the newly independent India by proposing the reformation and codification of
Hindu personal law. Nehru's efforts led to contentious debates over the so-called Hindu Code
Bill, which he offered in the Indian parliament, as a way to fix still unclear elements of the
Anglo-Hindu law. The Hindu Code Bill was initially and continues to be very controversial
within and outside of the Hindu community. Criticism of the document is based on the belief that
the laws in the Hindu Code bill should apply to all citizens regardless of religious affiliation.[1]
Though a small minority suggested some kind of return to classical Hindu law, the real debate
was over how to appropriate the Anglo-Hindu law.
Nehru completed codification and partial reform, but overall the legal system only slightly
changed. In the end, a series of four major pieces of personal law legislation were passed in
1955-56 and these laws form the first point of reference for modern Hindu law: Hindu Marriage
Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act (1956), and
Hindu Adoptions and Maintenance Act (1956). Though these legislative moves purported to
resolve still unclear parts of the Anglo-Hindu law, the case law and interpretive tradition of
British judges and Indian judges in the British employ remained and remains crucial to the
application of modern Hindu law.

The overall effect of the codification of these rules was negative.[2] It was codified for the Hindus
yet left them with limited legal option, as well as tried to stamp out any diversity name of "Hindu
unity".[2] To no surprise it also caused a deep rift between Hindus and Muslims.[2] Some other
negative effects included:

It gave Hindu women the notion that they now had equal rights.[2]

Compared to the religious Muslim law, Hindu law appeared to be secular in nature, and
thus the only way Muslims could "secularize" laws in essence to "Hinduize" it.[2]

Codification fossilized Hindu law and customs into a conservative mold.[2]

Application of Modern Hindu Law


As stated by Article 44 of the Indian Constitution, India is a secular state that strives towards
legal uniformity. Many argue that the commitment of the Indian government towards this gradual
uniformity of the legal system threatens the minority religious groups that utilize the plurality of
the law to maintain traditions and implement their religious laws. While modern Indian Law
claims to make strides towards secularism, it is undeniable that its foundations rise from the
Hindu legal tradition and continues to maintain religious legal acceptance by recognizing the
personal and family laws of the Islamic, Christian, Jewish, and Hindu religions.
Before discussing the modern application and sources of Hindu law it is important to outline
whom thse laws govern. In the case of Hindu personal and family laws, as outlined by the Acts
of Parliament discussed below, those that are followers the Hindu religion, as well as those who
are not Christian, Jewish or Muslim, are held accountable to these laws.[3] Therefore, it is
assumed that all Indians who are not Muslim, Jewish or Christian are Hindu, disregarding
personal religious laws of followers of Buddhist, Jain, Sikh and other religions, creating
controversy within these communities. The Indian legal system does recognize Muslim, Jewish
and Christian family courts as well as secular family courts.

Sources of Modern Hindu Law


Sources of Classical Hindu law arose from the religious texts of the Dharmastra, as well as
sadachar or customs, and commentaries or digests that translated and interpreted the laws. Since
British colonialism, India has codified several aspects of the Hindu tradition into the Indian legal
system as well as adopted common and civil legal procedures.[3]

Legislation
Legislation, as created and implemented by the Indian government, is the strongest source of law
in all Indian courts. In the case of two conflicting sources, legislation holds the highest
jurisdiction.[3] While it is not a traditional source of law for the Hindu legal system, it is the latest
and most legitimate form.

During colonialism, the British codified several aspects of the Hindu legal tradition into the
Indian legal system, with the assumption that all Indians were Hindus. Thus upon gaining
independence, many of the same laws that governed the country during colonialism were
maintained as such, making the Indian Constitution and legal system heavily laden with Hindu
legal traditions at its foundation.[4]

Case Law
India is based on the British common legal system, thus the courts rely heavily on stare decisis,
or precedent, when deciding cases. Any case decision made by a higher court is a source of law
to all of the lower courts, in the prospect that the laws will be applied in a similar manner. The
Hindu family courts are expected to follow laws handed down from previous cases.
Modern Hindu law relies on the interpretation of judges and their ability to decipher mitigating
factors within each legal situation.[4] This is reflective of the ancient Hindu legal tradition of
working out problems on a case specific basis in finding justice in each specific instance.

Notable Legal Precedents and Legislation


As is the case with many global legal systems that rely on precedents as a source of law, certain
cases stand out that have shaped the Indian legal system into what it is today. Not only do they
provide the foundation for future legal cases but they also make a statement about the state of the
country and what direction it wants to lead. One such case came about during the efforts of
modernization reforms in India. Known as the Medical Termination of Pregnancy Act (1971), the
law allowed Indian women to legally obtain abortions. Thus this law made not only a religious
statement, as India was trying to become more secular, but also made a statement of equality as it
expanded the rights women had.[citation needed]
Another Act that most came to be was Early in December 2008, the marriage between a Hindu
and a Christian was deemed invalid under the Hindu Marriage Act (1955) as the Act provides for
only Hindu couples to enter into a wedlock, the Supreme Court has ruled.[5] Allegedly, Raj had
misinformed his wife about his social status and she filed for divorce. He claimed that the Hindu
Marriage Act does not preclude a Hindu from marrying a person of another faith. Dismissing the
Christian husbands appeal, the apex court upheld the High Courtss view that the marriage not
valid under the Hindu Marriage Act, specifically pointing to the fact that Section 5 of the Act
makes it clear that a marriage may be solemnized between any two Hindus if the conditions in
the said Section were fulfilled.[5]

Hindu Code Bills


Following independence, the postcolonial government led by Jawaharlal Nehru completed the
codification and reform of Hindu personal law, a process that had been begun by the British.
According to the British policy of noninterference, reform of personal law should have arisen
from a demand from the Hindu community. This was not the case, as there was significant
opposition from various Hindu politicians, organizations, and devotees who saw themselves
unjustly singled out as the sole religious community whose laws were to be reformed.[6]

However, the administration saw such codification as necessary in order to unify the Hindu
community, which ideally would be a first step towards unifying the nation.[7] They succeeded in
passing four Hindu Code Bills, including Hindu Marriage Act (1955), Hindu Succession Act
(1956), Hindu Minority and Guardianship Act (1956), and Hindu Adoptions and Maintenance
Act (1956).[8]
Nehru and his supporters insisted that the Hindu community, which comprised 80% of the Indian
population, first needed to be united before any actions were taken to unify the rest of India.
Therefore, the codification of Hindu personal law became a symbolic beginning on the road to
establishing the Indian national identity.[7] Nehru also felt that because he was Hindu, it was his
prerogative to codify specifically Hindu law, as opposed to Muslim or Jewish law.[9]
Those in Parliament who supported the Bills also saw them as a vital move towards the
modernization of Hindu society, as they would clearly delineate secular laws from religious law.
Many also heralded the Bills opportunity to implement greater rights for women, establishing
that such rights were necessary for Indias development.[10]
The Hindu Code Bills are still controversial among some communities, including women's,
nationalist, and religious groups. At the time of their creation, many portrayed them as a serious
deviation from Hindu legal precedent. However, now many, including Nivedita Menon, argue
that it is "misleading...to claim that Hindu personal law was reformed [in the 1950s]. It was
merely codified, and even that was in the face of stiff resistance from Congress leaders." [11]

Administration and Practice


There are no religious courts in India, as it is a secular nation. Rather religious personal laws are
adjudicated by the state on a case by case basis.

Supreme Court of India - Central Wing

Courts

The court system of India is essentially divided into three tiers, the Supreme Court of India at the
apex of the hierarchy for the entire country, twenty-one High Courts at the top of the hierarchy in
each State, and subsequent district courts that govern family, criminal and civil laws within the
states. The High Courts have jurisdiction over a state, a union territory or a group of states and
union territories. District courts are the courts of first resort. It is within the district courts that
Hindu law and other religious laws are administered. State judges apply Hindu law on a case by
case basis.

Judges
The judges that preside over the district courts in India are state bureaucrats, not religious priests
or scholars. Thus it is possible for a Hindu judge to preside over a divorce case between a
Muslim couple or for a Christian judge to preside over a case involving a Hindu family. With no
formal education on the religious laws of the state, judges may not be well versed in the laws
they are to adjudicate. They rely heavily on case precedent and scholarly works to guide them
through the cases.[12]

Lawyers
Lawyers in India are trained in general law schools and receive no formal and specific training
on Hindu law, Muslim law, or any other personal religious laws. All lawyers are however
required to take courses regarding personal law. These larger courses touch on the variety of
personal laws that exist in India, including Hindu Law.

Вам также может понравиться