Concept of Dharma | Family Law - CLAT PG PDF Download

The Concept of Dharma

Dharma in Hindu Texts 

•  Dharma  means  duty  and encompasses various aspects of life such as legal, social, and spiritual responsibilities.
• It is related to the concept of  justice  and is considered essential for maintaining order and balance in society.

Dharma in Different Contexts 

• In Hinduism,  Dharma  is often associated with principles like  patience  ,  forgiveness  ,  self-control  ,  honesty  ,  cleanliness  ,  knowledge  ,  truthfulness  , and  absence of anger  .
• It is also linked to the ultimate goal of life,  Moksha  (liberation).

Dharma in Hindu Epics 

• Hindu epics like the  Ramayana  and  Mahabharata  emphasize the importance of fulfilling one'sDharmaas the right course of action for individuals.
• The concept ofwas also central to the role of kings, who were expected to uphold and follow the path ofin their governance.

Hindu Jurisprudence and Dharma 

• Hindu Jurisprudence places a greater emphasis on  duty  compared to other schools of law.
•  Dharma  is not static; it varies from person to person and is influenced by factors such as caste, occupation, and societal roles.
• For example, the duties of a  king  ,  farmer  ,  doctor  , and  lawyer  are all defined by their specific roles in society.
• Text such as the  Manusmriti  address various aspects of life, including  religion  ,  administration  ,  economics  ,  civil law  , and  criminal law  .

'Hindus' and Hindu Religion 

• The term  'Hindus'  encompasses all individuals who profess the Hindu religion, either by birth from Hindu parents or by conversion to the Hindu faith.
• In the case of  Yagnapurushdasji v. Muldas  , the Supreme Court defined Hinduism as  acceptance of the Vedas  with reverence and recognition of the worship of multiple gods.
• A person is considered a Hindu if they are a Hindu by religion in any form, a Buddhist, Jaina, or Sikh by religion, born from Hindu parents, or not a Muslim, Parsi, Christian, or Jew and not governed by Hindu law.
• The Supreme Court, in the case of  Shastri vs. Muldas  , clarified that groups like Satsangi, Arya Samajis, and Radhaswami are part of the Hindu religion as they originated from Hindu philosophy.

Evolution of the Term 'Hindu' 

• Initially,  'Hindu'  had a territorial significance, denoting nationality and origin from the territory drained by the  Sindhu  (Indus) river.
• The term  'Hindu'  was derived from  'Sindhu'  , as pronounced by the Persians, who named their Aryan brethren  'Hindus'  .
• Over time, the term  'Hindu'  lost its territorial significance and became a designation of religion rather than nationality.

Hindu by Religion 

• Persons originally Hindus, Jains, Sikhs, or Buddhists by religion are included in this category.
• Those who convert or reconvert to Hindu, Jain, Sikh, or Buddhist religion also fall under this category.
• Any person following Hindu religion in any of its forms or developments, either by practicing or professing it, is considered a Hindu.
• It is important to note that defining  Hinduism  can be complex due to its diverse practices and beliefs.

Swaminarayana Sampradaya 

• The  Swaminarayana Sampradaya  , founded by  Shajanand  (later known as  Swami Narayan  ), is prevalent in Maharashtra and Gujarat.
• Followers of this Sampradaya, known as  Satsangi  , argued in the case of  Yagna-Purusdasji v. Muldas  that they were not part of Hindu religion and that the temple was non-Hindu.
• The Supreme Court ruled that the  Swaminarayana Sampradaya  is part of Hindu religion and that Hindu law applies to the temple.

Hindu by Birth 

• A child is considered Hindu if both parents were Hindus, Sikhs, Jains, or Buddhists at the time of the child's birth.
• If one parent is Hindu and the other is Jain, Sikh, or Buddhist, the child is also considered Hindu.
• It does not matter if the child does not profess, practice, or have faith in the religion of the parents.
• If after the birth both or one of the parents converts to another religion, the child remains Hindu unless the child is converted into the religion of the parent(s) (In case of legitimate child this right is on father, and in illegitimate case is on the mother).
• A person is considered Hindu if brought up as a member of the tribe, community, group, or family to which Hindu parent belonged at the time of his birth.
• If both parents of a child are not Hindu and the child is brought up as a Hindu, the child will not be Hindu unless he becomes converted Hindu.

Who are not Muslims, Christians, Parsis or Jews 

• Any person who is not a Muslim, Christian, Parsi, or Jew and who is not governed by any other law is governed by Hindu law, unless it is proved that Hindu law is not applicable to such a person.
• Those who are atheists or believe in all faiths, or in a combination of faiths, may fall under this category.

Converts and Reconverts 

• According to the Supreme Court in the case of  Peerumal v Poonuswami  , a person can become a Hindu by expressing the intention to become a Hindu and following the customs of a caste, tribe, or community, provided the community accepts him.
• In the case of  Mohandas vs Dewaswan board  , the Kerala High Court ruled that mere declaration and actions are sufficient for becoming a Hindu.

Hindu Concept of Law 

• In Hindu philosophy, law is considered a branch of  dharma  , which encompasses moral, social, and legal duties.
•  Dharma  is seen as what is followed by those learned in the Vedas and approved by virtuous individuals.
• The Hindu system is based on  duties  rather than rights, with a focus on religious, moral, social, and legal responsibilities.

Hindu Law and Smritis 

• Hindu law is derived from  Smritis  written in Sanskrit, which do not differentiate between rules of law and rules of morality or religion.
• The Privy Council distinguished between  mandatory (legal)  and  directory (moral)  rules in the context of Hindu law.
• During  Mohammedan rule  , Smriti law was still recognized and followed.

Hindu Law and Analytical Jurisprudence 

• Hindu concept of law differs from  Austinian view  , as rules of Hindu law do not necessarily emanate from a determinate authority.
• Rules of Hindu law are obeyed by the people for whom they are made, regardless of being commands of Austin's sovereign.

Hindu Law in Modern Times 

• Hindu law as administered by Indian courts is applicable to Hindus, but it is not the original Hindu law.
• Modern Hindu law has been amended and modified to meet the changing needs of society.
• Original Hindu law does not apply to all matters and has been altered by various acts, such as:
• Hindu Marriage Act, 1955  Hindu Adoption and Maintenance Act, 1956 
• Hindu Succession Act, 1956  Hindu Minority and Guardianship Act, 1956