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    Custom Trancendental

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    shashwatambashta22136
    The document discusses the role of custom in Hindu law and its relationship to sacred law or smriti. It examines views from various ancient sources like Manu, Yajnavalkya, Brihaspati, and Narada that suggest custom should be considered or may even override sacred law in some cases. Modern sources like Mayne and Gautam state customs should not be opposed to public policy or sacred law. Case laws are cited that establish the importance of clear proof of custom outweighing written law. The document seems to explore whether custom overrides or supplements sacred law in Hindu legal tradition.

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    Custom Trancendental

    Uploaded by

    shashwatambashta22136
    21 views2 pages
    The document discusses the role of custom in Hindu law and its relationship to sacred law or smriti. It examines views from various ancient sources like Manu, Yajnavalkya, Brihaspati, and Narada that suggest custom should be considered or may even override sacred law in some cases. Modern sources like Mayne and Gautam state customs should not be opposed to public policy or sacred law. Case laws are cited that establish the importance of clear proof of custom outweighing written law. The document seems to explore whether custom overrides or supplements sacred law in Hindu legal tradition.

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    custom trancendental

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    The document discusses the role of custom in Hindu law and its relationship to sacred law or smriti. It examines views from various ancient sources like Manu, Yajnavalkya, Brihaspati, and Narada that suggest custom should be considered or may even override sacred law in some cases. Modern sources like Mayne and Gautam state customs should not be opposed to public policy or sacred law. Case laws are cited that establish the importance of clear proof of custom outweighing written law. The document seems to explore whether custom overrides or supplements sacred law in Hindu legal tradition.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    21 views2 pages

    Custom Trancendental

    Uploaded by

    shashwatambashta22136
    The document discusses the role of custom in Hindu law and its relationship to sacred law or smriti. It examines views from various ancient sources like Manu, Yajnavalkya, Brihaspati, and Narada that suggest custom should be considered or may even override sacred law in some cases. Modern sources like Mayne and Gautam state customs should not be opposed to public policy or sacred law. Case laws are cited that establish the importance of clear proof of custom outweighing written law. The document seems to explore whether custom overrides or supplements sacred law in Hindu legal tradition.

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    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
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    Ancient sources

    Modern sources
    Application
    Marriage is a contract/samskara

    Custom is Transcendental Law


    - Beyond the experience, surpassing human experience
    Smritikars said the king in deciding a dispute should apply custom, decide in accordance with
    custom.
    Manu – It is the duty of the kind to decide dispute in accordance with sacred law but he
    should also make an enquiry into customs
    Yajnavalkya – One should not practice that which thou ordained by the smritis is condemned
    by the people.
    Brihaspati – The time-honoured institutions of each country, caste and family should be
    preserved intact.
    Narada – Custom decides everything and overrules the sacred law. There are 4 legs of law.
    Dharma (sacred law), Vyavhar, Charita ,Rajshasan
    Katyayna – Whatever a person practices, whether it is in accordance with dharma or not is
    declared to be tha charittra because e
    Apasthamba
    Sen
    Jamini – An established usage, not supported by any available text of smriti raises the
    presumption that there must have been some text of smriti as the basis of the usage which has
    now been lost or forgotten. This presumption is however rebutted whenever we find an
    express text of smriti condemning the conduct.
    Mayne – Custom should not be immoral or criminal or opposed to public policy
    Gautam – customs of countries, castes and families not opposed to sacred law are valid
    Brihaspati – Local tribal and family customs wherever they prevail from must be respected
    otherwise the subjects become agitated, popular disaffection springs up and the strength in
    the treasury of the government suffer in consequence
    Apasthamba – Local, tribal and family custom are authoritative when they are not opposed
    to sacred law
    Sen – Such customs or usages wherever they exist must be tolerated and recognised in the
    administration of justice but must not be recognised in
    Case – Collector of Madurai v Mootoo Ramalinga Sethupathy Privy Council 1868
    - Aka – Ramnad case
    - Sir James Colville gave a statement “Clear proof of custom will outweigh the
    written text of law
    Kareva – Start living together …
    Chadarandazi – ceremonial aspect
    In both actual cohabitation should occur
    Bhartiben v Amitbhai Vithalbhai
    - Customary divorces
    Satyaprakash Meena v Alka Meena
    Duleshwar Deshmukh v Kirtitata Deshmukh
    S. 3A in answer after writing ingredients of valid custom…saving clause … S. 5(4), S. 5(6),
    S. 29(2)
    Under Hindu Law, customs have ‘propio vigore’

    Q) Does custom override sacred law or is it supplementary to it?


    -
    ANY QUESTIONS CUSTOM……BEGIN WITH THESE
    Ans writing
    - Basic
    - Smriti
    - Statutory
    - Caselaws

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