CLASSICAL SCHOOL OF JURISPRUDENCE

Introduction of Hindu Law

Hindu law is considered to be the most ancient and prolific law in the world. It has been around every phase. It is about 6000 years old. Hindu law has been established by the people, not for the purpose of removing any crime or transgression from society but it was established so that the people will follow it in order to attain salvation. Originally Hindu law was established so that the need of the people gets fulfilled. The concept was initiated for the welfare of the people.

Sources of Hindu law

There is the two-fold classification of the sources of the Hindu law

• Ancient sources
• Modern sources

Ancient source

Ancient sources are the source that developed the concept of Hindu law in ancient times. It is further classified into four categories

1. Shruti

The term Shruti means what has been heard. It contains the sacred words of the god. This source is considered to be the most important and essential source of all. Shruti’s are the sacred pure utterance that has been enshrined in the Vedas and the Upanishads. They have religious nexus with a person and helps him in a way to attain the knowledge of salvation and incarnation. It is considered to be the primitive source containing the knowledge of the law.

There are four Vedas to be specific,

• Rig Veda (containing psalms in Sanskrit to be discussed by the main cleric),
• Yajurva Veda (containing recipes to be presented by the directing minister),
• Sama Veda (containing sections to be recited by diviners) and
• Atharva Veda (containing an assortment of spells and chants, stories, forecasts, apotropaic charms and some theoretical songs).

Every Veda has three sections viz.

• Sanhita (which comprises for the most part of the songs),
• Brahmin (discloses to us our obligations and methods for performing them) and
• Upanishad (containing the quintessence of these obligations).

The shrutis incorporate the Vedas alongside their parts.

1. Smriti

The word smriti derived from smri which has significance to remember, They are utterance and precepts of almighty which have been heard and remembered by rishis from generation to generation. The smrities are divided into

• Dharma sutra (prose) and
• Dharmashatras

The exact number of smritis is not defined but Manusmriti is the earliest one. The rules laid down in Smritis can be divided into three categories viz.

• Achar (relating to morality),
• Vyavahar (signifying procedural and substantive rules which the King or the State applied for settling disputes in the adjudication of justice) and
• Prayaschit (signifying the penal provision for commission of a wrong).

1. Digest and Commentaries

After smriti’s the next step in the development of Hindu law was the number of commentaries and digest based upon smritis. The commentaries is to interpret the law as laid down in the smriti’s. So a writing of a particular smriti is called commentaries while writing on different smrities is called Digest

They are number of commentaries but main commentaries are

• Daya Bhaga by jimutavahana and
• Mitakshara by Vijanamshwara

Custom

Custom is viewed as the third wellspring of Hindu law. From the soonest period custom (‘achara’) is viewed as the most noteworthy ‘dharma’. As characterized by the Judicial Committee custom connotes a standard which in a specific family or in a specific class or region has from long use gotten the power of law.

Custom is a rule source and its position is close to the Shrutis and Smritis yet utilization of custom beats the Smritis. It is better than composed law. There are sure qualities which should be satisfied for announcing custom to be a legitimate one. They are:-

1. A customs must be continuous in practice
2. A custom should not be vague or ambiguous
3. A  custom must have time antiquity
4. There must be a complete observation of the custom
5. It should be certain and clear
6. A custom must not oppose the public policy which will affect the interest of the general public.
7. Deivanai Achi v. chidambaram (1954) Mad. 667.

In the instant case it was held that in order to become legally sanctioned by law and binding on the people a custom must be continuous in practice, it should not be vague and ambiguous and should not oppose the well established public policy. A customary rule must be in the complete observation of society.

• Laxmi v. bhagwantbuva AIR 2013 SC 1204

In the instant case, the supreme court stated that a custom becomes legally enforceable when the majority of people make the continuous use of such practice.

Onus : Generally when a custom attains the judicial recognition no further proof is required, however in certain cases where the customary practices do not attain the judicial recognition, the burden of proving lies on the person who alleges its existence.

• Munna lal v. Raj Kumar AIR 1972 SC 1493

In the instant case the supreme court stated that a custom brought before a court several times, the court might hold that such custom has been enforced by the law with the necessity of its proof.

Further, the customs have been classified into two categories-

Legal customs

Legal custom is those customs which are enforceable or sanctioned by law. It can’t be deemed invalid until the law itself declares it invalid. There are two types of legal customs.

• Local customs : Local customs are the customs that are practiced in a local area. This type of custom is not highly recognized.
• General customs: General customs are the customs or traditions which are practiced in a large area. This type of custom is highly recognized by people.
• Conventional customs

Conventional customs are customs that are related to the incorporation of an agreement and it is conditional.

Modern Sources of Hindu Law

• Justice, Equity – Equity and Good Conscience

Once in a while it may happen that a question precedes a Court which can’t be settled by the utilization of any current principle in any of the sources accessible. Such a circumstance might be uncommon however it is conceivable on the grounds that few out of every odd sort of certainty circumstance which emerges can have a comparing law administering it.

The ’courts can’t decline to settle the debate without law and they are under a commitment to choose such a case moreover. For deciding such cases, the Courts depend upon the essential qualities, standards and guidelines of fairplay and respectability.

In phrasing, this is known as standards of equity, value and great heart. They may likewise be named as Natural law. This guideline in our nation has delighted in the status of a wellspring of law since the eighteenth century when the British organization clarified that without a standard, the above rule will be applied.

• Legislations

Enactments are Acts of Parliament which have been assuming a significant job in the development of Hindu law. After India accomplished freedom, some significant parts of Hindu Law have been arranged. Not many instances of significant Statutes are

• The Hindu Marriage Act, 1955,
• The Hindu Adoptions and Maintenance Act, 1956,
• The Hindu Succession Act, 1956,
• The Hindu Minority and Guardianship Act, 1956, and so on.

After codification, any point managed by the arranged law is conclusive. The institution abrogates all earlier law, regardless of whether dependent on custom or in any case except if an express sparing is accommodated in the order itself. In issues not explicitly secured by the classified law, the old printed law contains an application.

• Precedents

After the foundation of British principle, the chain of importance of Courts was built up. The tenet of point of reference dependent on the standard of rewarding like cases the same was set up. Today, the choices of Privy Council are official on all the lower Courts in India aside from where they have been changed or adjusted by the Supreme Court whose choices are authoritative on all the Courts with the exception of itself.

Schools of Hindu law

Schools of Hindu law are considered to are the commentaries and the digestives of the smritis. These schools have widened the scope of Hindu law and explicitly contributed to its development.

The two major schools of Hindu law are as follows-

• Mitakshara
• Daya Bhaga

1. Mitakshara

Mitakshara School: Mitakshara is one of the most important schools of Hindu law. It is a running commentary of the Smriti written by Yajnvalkya. This school is applicable in the whole part of India except in West Bengal and Assam. The Mitakshara has a very wide jurisdiction. However different parts of the country practice law differently because of the different customary rules followed by them.

Mitakshara is further divided  into five sub-schools namely

• Benaras law school

This law school comes under the authority of the Mitakshara law school and covers  Northern India including Orissa. Viramitrodaya Nirnyasindhu vivada are some of its major commentaries.

• Mithila law school

This law school exercises its authority in the territorial parts of tirhoot and north Bihar. The principles of the law school prevail in the north. The major commentaries of this school are Vivadaratnakar, Vivadachintamani, smritsara.

• Maharashtra or Bombay law school

The Maharashtra law school has the authority to exercise its jurisdiction over the territorial parts including Gujarat Karana and the parts where there is the Marathi language is proficiently spoken. The main authorities of these schools are Vyavhara Mayukha, Virmitrodaya, etc.

• Madras law school

This law school tends to cover the whole southern part of India. It also exercises its authorities under Mitakshara law school. The main authorities of this school are Smriti Chandrika, Vaijayanti, etc.

• Punjab law school

This law school was predominantly established in east Punjab. It had established its own customs and traditions. The main commentaries of this school are viramitrodaya and it established customs.

• Dayabhaga school

Dayabhaga school predominantly prevailed in Assam and West Bengal. This is also one of the most important schools of hindu laws. It is considered to be a digest for the leading smritis. Its primary focus was to deal with partition, inheritance and joint family. According to Kane, it was incorporated in between 1090-1130 A.D.

Dayabhaga school was formulated with a view to eradicating all the other absurd and artificial principles of inheritance. The immediate benefit of this new digest is that it tends to remove all the shortcomings and limitations of the previously established principles and inclusion of many cognates in the list of heirs,  which was restricted by the Mitakshara school.

In Dayabhaga school various other commentaries were followed such as:

• Dayatatya
• Dayakram-sangrah
• Virmitrodaya
• Dattaka chandrika

Who are Hindus?

A person can be called as a Hindu ( Sec 2 of Hindu Marriage Act, 1955), who:

• Is a Hindu by religion in any form.
• Is a Buddhist, Jaina or Sikh by religion.
• Is born from Hindu parents.
• Is not a Muslim, Parsi, Christian or Jews and are not governed under Hindu law.
• Lodge in India.

The Supreme Court of India in the landmark case of Shastri vs Muldas expressly defined the term ‘Hindu’.

This case is related to the Swami Narayan temple in Ahmedabad. There is a group of people called the Satsangi who were managing the temple and they restricted non-Satsangi Harijans from entering the temple. They argued that Satsangi is a different religion and they are not bound by Hindu Law. The Supreme Court of India held that the Satsangi, Arya Samajis and Radhaswami, all these belong to the Hindu religion because they originated under Hindu philosophy.

• Hindu by Religion: If any person follows the religion by practising it or by claiming it can be called as a Hindu.
• Conversion and Reconversion to Hinduism: Under the codified Hindu law, any person converted to Hinduism, Buddhism, Jainism or Sikhism can be called a Hindu.

In Perumal vs ponnuswami, explains a person can be called a Hindu by conversion.

In this case, Perumal was the father of Poonuswami who got married to an Indian Christian. In the future due to certain differences, they were living separately. In the future, the mother of Poonuswami asked Perumal for the share of his properties. Perumal denied and said “marriage between a Hindu and a Christian is void”. The Supreme Court of India held that a real intention is sufficient evidence of conversion and no formal ceremony of purification is needed (Conversion of Hinduism). So it is not void and Poonuswami would get a share.

• For conversion, the person should have a bonafide intention and also shouldn’t have any reason to be converted.
• Reconversion basically happens, when a person is Hindu and gets converted to a non-Hindu religion and he will again become Hindu if he/she gets converted into any four religions of Hindu.

Introduction to Muslim Law

• Believes in Unity of God i.e. ‘One God’ Allah
• Messenger of this God is Prophet Muhammad

Sources of Muslim Law

• Primary sources of Muslim Law

The Muslim law has been derived from various primary sources. These are classified as:

1. Quran

It is the original or primary source of Muslim Law. It is the name of the holy book of the Muslims containing the direct revelations from God through Prophet. The direct express or manifest revelations consist of the communications which were made by the angel, Gabriel, under directions from God, to Mohammed, either in the very words of God or by hints and of such knowledge which the Prophet has acquired through the inspiration (Ilham) of God. All the principles, ordinances, teachings and the practices of Islam are drawn from Quran.  The contents of Quran were not written during the lifetime of the Prophet, but these were presented during the lifetime of Prophet, in the memories of the companions.

There is no systematic arrangement of the verses in the Quran but they are scattered throughout the text. It contains the fundamental principles which regulate the human life. The major portion of the Quran deals with theological and moral reflections. The Quran consists of communications of God; it is believed to be of divine origin having no earthly source. It is the first and the original legislative code of Islam. It is the final and supreme authority.

1. Sunna or Ahadis

The literal meaning of the term ‘Sunna’ is ‘the trodden path.’ It denotes some practice and precedents of the Prophet, whatever the Prophet said or did without reference to God, and is treated as his traditions. It is the second source of Muslim law. Traditions are injunctions of Allah in the words of the prophet. Where the words of Allah could not supply an authority for a given rule of law, Prophet’s words were treated as an authority because it is believed that even his sayings derived inspiration from Allah.

According to Muslim law, there are two types of revelations i.e. manifest (Zahir) and internal (Batin). Manifest or express revelations were the very words of Allah and came to the Prophet through the angel Gabriel. Such revelations became part of the Quran. On the other hand, the internal revelations were those which were the ‘Prophet’s words’ & did not come through Gabriel, but Allah inspired the ideas in his sayings. Such internal revelations formed part of Sunna. Traditions, therefore, differ from Quran in the sense that Quran consists of the very words of God whereas a Sunna is in the language of Prophet.

Sunna or traditions consists of:

• Sunnat-ul-Qual (word spoken)
• Sunnat-ul-Fail (conduct)
• Sunnat-ul-Tahrir (silence)
• Ijma (Consensus)

With the death of the prophet, the original law-making process ended, so the questions, which could not be solved either by the principles of the Quran or the Sunna, were decided by the Jurists with the introduction of the institution of Ijma. Ijma means agreement of the Muslim Jurists of a particular age on a particular question of law, in other words, it is the consensus of Jurist’s opinion.

Those persons who had knowledge of law were called Mujtahids (Jurists). When Quran and traditions could not supply any rule of law for a fresh problem, the jurists unanimously gave their common opinion or a unanimous decision and it was termed as Ijma. Not each and every Muslim was competent to participate in the formation of Ijma, but only Mujtahids could take part in it.

There are three kinds of Ijma:

• Ijma of Companions: The concurrent opinion of the companions of Prophet was considered most authoritative and could not be overruled or modified.
• Ijma of the Jurists: This was the unanimous decision of the jurists (other than companion).
• Ijma of the people or masses: It is the opinion of the majority of the Muslims which was accepted as law. But this kind of Ijma has little value.

Once a valid Ijma is constituted, it is regarded equal to Quranic verse i.e. it is equally binding on people. Without Ijma, these rules of Islamic law would have been diffused and incomplete. Its principles cover the vast subject. Ijma authenticated the right interpretation of the Quran and the Sunna.

1. Qiyas (Analogical deductions)

The word Qiyas was derived from term ‘Hiaqish’ which means ‘beat together.’ In Arabic Qiyas means ‘measurement, accord, and equality.’ In other words, it means measuring or comparing a thing to a certain standard, or to ‘establish an analogy.’ If the matters which have not been covered by Quran, Sunna or Ijma, the law may be deducted from what has been already laid down by these three authorities by the process of analogy (Qiyas).

The Qiyas is a process of deduction, which helps in discovering law and not to establish a new law. Its main function is to extend the law of the text, to cases which do not fall within the purview of the text. For  valid Qiyas, the following conditions must be fulfilled:

• The process of the Qiyas can be applied only to those texts which are capable of being extended. The texts should not be confined to a particular state of facts or rules having a specific reference.
• The analogy deduced should not be inconsistent with the dictates of the Quran and authority of Sunna.
• The Qiyas should be applied to discover a point of law and not to determine the meanings of the words used in the text.
• It must not bring a change in the law embodied.
• If there is a conflict between two deductions, a jurist is free to accept any one of the deductions from a text. Hence one analogy cannot abrogate the other.

Like Hindu law secondary sources or modern sources of Muslims laws are

• Judicial decisions
• Legislation
• Justice equity and good conscience

Schools of Muslim law

Schools have no territory or regional like Hindu law. The schools of Muslim law can be extensively ordered into two classifications:

• Sunni Schools
• Shia Schools

1. Sunni Schools

In Sunni group, there are four significant schools of Muslim law which are as per the following;

1. Hanafi School

Hanafi School is the first and the most well known schools in Muslim law. Before being named Hanafi, this school was known as Koofa School which depended on the name of the city of Koofa in Iraq. Afterward, this school was renamed as Hanafi School dependent on the name of its organizer Abu Hanafee.

The Prophet had not permitted his words and conventions from being composed, the Hanafi School depended on the traditions and choices of the Muslim people group. In this way, Hanafi School classified the point of reference which in predominance during that time among the Muslim people group.

The originator of this school Abu Hanafee had not recorded any book for laying the standards of this school and hence this school had developed through his two supporters Imam Muhammed and Imam Abu Yousuf. Them two provided for the Juristic inclination (Isthi Hasan) and arranged the Ijma’s of that period.

This school turned out to be generally spread in different regions, thus, most of Muslims in nations, for example, India, Pakistan, Syria, and Turkey have a place with Hanafi School. In India, since most of Muslims are from Hanafi School, the Courts choose the instance of a Sunni Muslim according to the Hanafi School except if it is indicated that they have a place with different schools.

In Hanafi School, Hedaya is the most significant and definitive book which was made over a time of 13 years by Ali receptacle Abu Baker al Marghinani. This book gives laws on different angles aside from the law of legacy. Ruler Warren Hasting attempts to make an interpretation of the Hedaya to English. He named numerous Muslim Scholars to interpret the book.

In any case, the Sirajiyya is considered as the legitimate book of the Hanafi Law of Inheritance. The book is composed by Sheik Sirajddin, and the principal English interpretation is composed by Sir William Jones.

• Maliki School

This school gets its name from Malik-receptacle Anas, he was the Mufti of Madeena. During his period the Khoofa was considered as the capital of Muslim Khaleefa where Imam Abu Haneefa and his devotees prospered with Hanafi Schools. He found around 8000 customs of the Prophet however went along just around 2000 of them. At the point when the supporters of Imam Abu Haneefa classified their law dependent on Ijma’a and Isthihsan.

The maliki school gives the significance to the Sunna and Hadis while the Hanafi school gives the significance to the individuals and Isthihsan. According to Maliki School and Law, they infrequently acknowledge the Ijma’a. According to the Law, the individual gave Fatwa testing the sovereign authority of Khaleefa, he confronted ill will and of absence of help from Muslim governments. Accordingly, this Maliki school didn’t get a lot of prevalence.

In India, there are no adherents of this school however when the Dissolution of Muslim marriage act 1939 came in the image, a portion of the laws and arrangement of this school was considered as they are giving a bigger number of rights to the ladies than some other school. In Hanafi School, if the ladies do not get any updates on her better half, she needs to hang tight work 7 years for Dissolution of the marriage, while in Maliki School the ladies need to sit tight 2 years for Dissolution of the Marriage.

Mu-atha of Imam Malik is considered as the most definitive book of the Maliki School. This book is additionally the main book composed on the Hadis in Islam and this book is considered as the authority over all Muslims in the World.

• Shaffie School

The Shaffie School gets its name on the name of Muhammad canister Idris Shaffie, his period was between 767 AD to 820 AD. He was the understudy of Imam Malik of Madeena. At that point he began working with the supporters of Imam Abu Haneefa and went to Khoofa.

He finishes up the thought’s and the hypotheses of Hanafi School and Maliki School in an amicable way. The Imam Shaffie was considered as one of the best legal scholar of Islam. He made the old style hypothesis of the Shaffie Islamic Jurisprudence.

As indicated by this school, they considered Ijma’a as the significant wellspring of the Muslim law and give legitimacy to the traditions of the Islamic individuals and follows more techniques for Hanafi School. The fundamental commitment of Shaffie School is the Quiyas or Analogy.

The Al-Risala of Imam Shaffie was considered as the main definitive book of Islamic Jurisprudence. In that book they talk about and decipher the Ijma’a (Consensus), Quiyas (Analogy), Ijthihad (Personal thinking) Isthihsan (Juristic inclination) and Ikhthilaf (Disagreement) in isolated part in his book Risala. His other book Al-Umm is the expert on Fiqh (study of lifestyle).

The devotees of Shafie School are spread in Egypt, Southern Arabia, South East Asia, Indonesia and Malaysia.

• Hanbali School

The Ahmad receptacle Hanbal is the author of the Hanbali School. He found the Hanbali school in 241 (AD 855). He is the pupil of Imam Shaffie and supports Hadis. He unequivocally restricted the Ijthihad strategies. He presented the hypothesis of following the foundation of Sunna and Hadis and attempt to find the solution all his inquiry. His hypothesis was to come back to the Sunna of the Prophet. At the point when the Imam Shafie left for Baghdad, he proclaimed that the Ahmad container Hanbal was the just one after him who is the better law specialist after him. The adherents of Hanbali school found in Syria, Phalastine and Saudi Arabia.

• Shia Schools

According to Shia Sect, there are three schools of law. Shia Sect is considered as the minority in the Muslim world. They appreciate the political force just in Iran however they don’t have the larger part in that state moreover.

1. Ithna-Asharis

These schools depend on the accompanying of Ithna-Ashari laws. The supporters of these schools are for the most part found in Iraq and Iran. In India likewise there is most of the shia muslim who follows the standards of the Ithna-Asharis School. They are viewed as political quietists. This school is considered as the most predominant school of the shia muslims. The ja’fari fiqh of the shias much of the time indistinct from at least one of the four sunni madhahib, with the exception of mutah is considered as the legitimate marriage. The individuals who follow the Ithna Asharis school accept that the remainder of the Imams vanished and to be returning as Mehdi(Messiah).

• The Ismailis

As per Ismailis school, in India there are two gatherings, the Khojas or Western Ismailis speaks to the adherents of the current Aga Khan, who they considered as the 49^th Imam in this line of Prophet, and the Bohoras for example the Western Ismailis are isolated into Daudis and Sulaymanis.

The Bohoras and Khojas of Mumbai are considered as the devotees of this school. It is viewed as that the supporters of these schools have unique information on strict tenet.

• Zaidy

The adherents of this school are not found in India however are most extreme in number in South Arabia. This faction. Of the Shia school is the most predominant among all in Yemen. The devotees of these schools are considered as political activism. They regularly dismiss the twelve Shia school ways of thinking.