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Hindu law, as a historical term, refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British India. [1] [2] [3] 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. [4]
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. [2] While it is not a traditional source of law for the Hindu legal system, it is the latest and most legitimate form.
The [British] colonial administration began the codification of Hindu and Muslim laws in 1772 and continued through the next century, with emphasis on certain texts as the authentic "sources" of the law and custom of Hindus and Muslims, which in fact devalued and retarded those dynamic social systems.
The root texts of ancient Hindu jurisprudence and law are the Dharma-sūtras. These express that Shruti, Smṛti and Acara are sources of jurisprudence and law. [30] The precedence of these sources is declared in the opening verses of each of the known, surviving Dharma-sūtras. For example, [30]
Thus, the common source of classical Hindu law was the community and, therefore, laws on a whole were highly decentralized and diverse. [3] These laws were dictated by various corporate groups such as merchant leaders, heads of caste, and kings, and because of the diverse leadership, these laws were particular to a set place. [ 4 ]
The decision of a case in ancient India was based on eight sources according to brahmanical law givers. These sources are the three Pramanas (possession, documents, and witnesses) logical inference, the usages of the country, sapatha s (oaths and ordeals), the king's edict and admission of the litigants. [11]
Dharmaśāstra became influential in modern colonial India history, when they were formulated by early British colonial administrators to be the law of the land for all non-Muslims (Hindus, Jains, Buddhists, Sikhs) in the Indian subcontinent, after Sharia set by Emperor Aurangzeb, was already accepted as the law for Muslims in colonial India.
The Hindu Personal Laws beginning with the creation of the Anglo-Hindu Law lead to widespread changes, controversies and civil suits in Hindu society across all strata and in monastic orders. Between 1860 and 1940, the issue of succession in the Anglo-Hindu Law led to legal issues of ownership and distribution of property in ascetic-run ...