Introduction to Hinduism with historical perspective

The term Hindu is a misnomer which is and has been used to describe different things at different times. The historical and etymological genesis of the word 'Hindu' (also spelled as 'Hindoo' in old English literature) has given rise to a controversy amongst indologists; but the view generally accepted by scholars appears to be that the word "Hindu" is derived from the river Sindhu otherwise known as Indus which flows from the Punjab. "that part of the great Aryan race", says Monier Williams, "which immigrated from Central Asia, through the mountain passes into India, settled first in the districts near the river Sindhu (now called the Indus)."[1]

It may be noted that Persians were the first neighbors and were first to arrive in India for trading in 7th Century. They spoke Persian language in which segregation of 'I' as a separate vowel sound is not permissible. Hence the Persians pronounced Indu or Sindhu as Hindu and thus named their Aryan brethren Hindus. Thus the people on the Indian side of the SIndhu we re called Hindu by the Persian and also by the later western invaders.2 The term 'Hindu', according to Dr. Radhakrishnan, had originally a territorial and not a credal significance. It implied residence in a well-defined geographical area. Aboriginal tribes, savage and half- civilized people, the cultured Dravidians and the Vedic Aryans were all Hindus as they were the sons of the same mother. The Hindu thinkers reckoned with the striking fact that the men and women dwelling in India belonged to different communities, worshiped different gods, and practiced different rites.[3]

The development of Hindu religion and philosophy shows that from time to time saints and religious reformers attempted to remove from the Hindu thought and practices elements of corruption and superstition and that led to the formation of different sects. Buddha started Buddhism; Mahavir founded Jainism; Basava became the founder of Lingayat religion, Dnyaneshwar and Tukaram initiated the Varakari Cult; Guru Nanak inspired Sikhism; Dayananda founded Arya Samaj, and Chaitanya began Bhakti cult; and as a result of the teachings of Ramakrishna and Vivekananda, Hindu religion flowered into its most attractive, progressive and dynamic form. If we study the teachings of these saints and religious reformers, we would notice an amount of divergence in their respective views; but underneath that divergence, there is a kind of subtle indescribable unity which keeps them within the sweep of the broad and progressive Hindu religion.[4]

So the question arises what is 'Hindu Law' which is the subject matter of this work. To understand this, we shall have to dwell into the history of India.

India was invaded by Turkish-Muslims sometime in 11th century AD who continue to attack India/Hindustan and loot the property. Some of the invaders settled down in different places. In 15th Century a Gurkin-Turkic-Mangol who later called themselves Mughal named Babur attacked Hindustan and established his empire. Later on to permanently settle down in India and to consolidate their empire they started destroying all local institutions like Temples and Universities. There are numerous ruins available all over the country depicting such massive destruction. At the same time they imposed religious tax called 'zazia' on Hindus. It was the first time that the word 'Hindu' acquired a new meaning which had religious overtones. Since no Christian or other religious follower had yet arrived in this part of land, all natives were grouped and called 'Hindu' for the purpose of this tax. In between there were also moderate Mughal Emperor like Akbar who liberalized the right to practice religion for Hindus.

Another ploy adopted by the Mughals was conversion of natives from being Hindu to Muslim by embracing Islam. The oppressed low caste were first to succumb to this pressure. Poor also followed. Now in 16th Century AD, when European traders arrived India was divided into two religious systems Hindu and Muslims.

By 17th Century the European traders had arrived and settled in different parts of Country. They completely misunderstood the 'Hindu' as 'Hindu Religion' but did a great service by employing a large number of scholars to translate ancient Hindu scripture. This work is also one such translation made in 1858.

With English in the saddle of power, they started dispensing justice to common people by what could be called as 'Anglo-Hindu Laws'. As per section 27 of Administration of Justice Regulation of 1772 "in all suits regarding inheritance, marriage, caste and other religious usages or institutions, the laws of the Koran with respect to the Mohamedans and those of the Shastras with respect to the Hindoos shall invariably be adhered to."

Thus the Hindu Law as originally existed over 500 years earlier was adopted by them. The English Judges were assisted by Brahmin Scholars i.e. Pandit who used to assist the English Judges in the matter of Hindu Laws on the basis of ancient Sanskrit Scriptures like Dharma Sastra which literally meant 'Code of Religious/ Legal Duty'. Actually the word 'Dharma' has no corresponding English meaning.

This was also another new challenge for English Scholars. For they were unable to understand how law can prescribe duties as well as rights. In any case the ancient Vedic Code of Conduct was resurrected during the the English Rule but with another misunderstanding. The 'Dharam Sastra' embodies what can be loosely called the Jurisprudence of this part of land which itself emphasise on local usage and practices. While reading the translation the repeated emphasis on the word 'Usage' brings out this fact that the Dharam Sastra was not absolute Code but only a guiding source which was being followed in a different way in different regions of the country.

After independence, the India became a republic and adopted a Constitution in which all citizens have equal rights. The hegemony of one caste over the other was thus effectively abolished. Subsequent legislations like Hindu Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act (1956), and Hindu Adoptions and Maintenance Act (1956) effectively modified various laws relating to the Anglo-Hindu Laws. There is however serious criticism of such reforms which apply only to Hindu and leave other sections of society untouched especially Muslims who are governed by their own personal Shariat laws in the matters of Marriage, inheritance and Succession, etc.

A question thus also arises as to why one should bother to read the ancient scriptures when these are no more in force? The answer lies in many reasons:

1. The Vedic laws like 'Dharam Sastra' are intertwined with various cultural events and rituals in Hindu Society for example the reason for the fanfare in a marriage.

2. The 'Dharam Sastra' is part of national heritage and therefore it must be known. Besides it happens to be oldest law on the earth which was so precise and yet so elaborate about the Code of Conduct for citizens. It reveals that for most part, the English law or the Anglo-Saxon Law we follow only partially modified the traditions of this country and did not introduce some civilized law for the first time.

3. The joint family system, even if fast disappearing, is still a norm. Joint Family system is also being replaced by a modern joint living system. However the joint property disputes are on the rise and many facets of disputes regarding joint property are still decided in accordance with 'Hindu Law.'

4. The oral partition[5] or the partition by oral or written family settlement is therefore often accepted by courts, when proved by subsequent documentary evidence and oral corroboration, even in respect of immovable property which otherwise can not be transferred by an oral sale.

Therefore it is strongly recommended that every student of law and every person interested interested in Vedic history or Ancient Indian traditions and laws must read this great work of translation of 'Dharam Sastra' of Yajnavalkaya.

Footnotes:

1. Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya, 1966 (3) SCR 242.

2. The Hindu View of Life by Dr. Radhakrishnan, p.12.

3. Ibid, p. 12.

4. Religious Thought & Life in India, by Monier Williams, p. 57

5. Shekoji Bhimrao v Motiram Maruti Maratha, 2007 (1) MhLj 747 Bom.