Matrimonial jurisprudence has given next to numerous concepts, both in substance and procedure, wherein changing sociology and statutory innovations are rapidly reshaping the basic concepts Both family and marriage, as basic institutions in society, have been under constant challenge in the modern age. JURISPRUDENCE DEFINITION NATURE AND SCOPE
Promiscuity sexual behaviors and other bilateral relationships in the modern age have given rise to new daunting matrimonial problems. It is an undeniable fact that modern life has placed great stress and strain on marriage and family. Marriages are breaking up more frequently than they ever did in the past.
Homes are broken equality frequently. Marriage is fast losing its sanctity and permanence. Homes and families are losing their unity and integrity.1The juristic approach on this sociological feature can be summed up in the words of Mukherji as under;
The fact of broken homes and families is acknowledged and attempts are made to see how best to solve the pre flexing problems that it generates like custody, maintenance, and education of children.2
In order to assure the family pe
ace and to promote the social economic and political justice to the members of a family such as marriage, dissolution of marriage, restitution of conjugal rights maintenance custody of children and adoption, etc in general and the need was felt to establish a family court with exclusive jurisdiction over the family affairs and other matters which are incidental.
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1. The Institution of marriage is of vital importance to the society from whatever point of view the institution of marriage is considered, nothing can be more striking than the value of this noble contract The backbone of society and the basis of civilization However sick marital relations pose a problem not merely to the related spouses, but also to the society. C.f. law towards stable marriage Ed. (1) 1984 p. 23
2. Mukherji, P.B. The New Jurisprudence Tagore Law Lectures (1970) p.160
A family survives due to its impalpable assets and not family courts would hold respect and high place in the public only if they maintain the delicacy and tenderness of a family. The 59th commission strongly recommended the establishment of family courts in this country for dealing with the disputes concerning the family matters.
We find Warren Hasting Plan which was prepared on 15 August 1772. It was the first step to regulate the machinery of the administration of justice. Article 27 of the Plan 1772 directed the Diwani Adalat to decide all the cases according to the Laws of the Quran with regard to the Mohammedans and the Laws of the Shastra with respect to Hindus.
It was one of the most important provisions of the plan, as it safeguarded the personal Laws of Hindus and Mohammedans placing both these Laws on equal footing This was in Macaulay’s words, a “far-sighted policy Rankings recognizes it as” an act of enlightened policy”.3
Warren Hastings made constant efforts to convince the Directors of the East India Company that the people of India were not savages, that they had Laws of their own, that their custody should be respected. He was at pains to dispel the notion then prevalent in England that the people of India had no regular laws of their own. Mohammedan law was maintained in a digest prepared by the order of Aurangzeb and knowledgeable by the Indian Courts.
Hindu law had not hitherto been systematically codified. Warren Hastings, therefore, invited the most learned pandits in the country and commissioned them to prepare a digest for the guidance and convenience of the civil courts. The English translation of the digest was transmitted of the directors to convince that “the people of this country do not require a standard for theirs.4
3. Rankin, GC, Background to Indian Law. pp 2-5
4. Digest Warren Hastings got translated info Persian and English as by that time no Englishman
The property’s in Warren Hastings view it was the sacred right of Indians retain their own system of Law and Justice Laying special emphasis on respecting the Local customs Warren Hastings stated the reasons for his opinions thus “Even the most injudicious or most Fanciful Customs which ignorance or superstition may have introduced among them are perhaps preferably to any which could be substituted in their room
They are interwoven with their religion and therefore revered as to the highest authority They are the conditions on which they hold their place in society they think then equitable and it is, therefore, no hardship to exact their obedience to them I am persuaded they would consider the attempt to free them from the efforts of such a power as a severe hardship.
It is therefore clear that by safeguarding the personal laws of the natives of India Warren Hastings Showed his farsightedness and the legal historians considered it one of the wisest steps ever taken by Warren Hastings. The Indian position prior to the constitution of India
1.1 Ancient Period
In ancient India, there was a distinct tradition of the independent school of legal theory and practice. The Arthashastra, 5, and the Manusmriti6 were influential treatises in India, texts that were considered authoritative legal guidance.7 these texts indicate that ancient India had a fairly well-developed and sophisticated system of administration of justice. In Manusmriti, Manu’s central philosophy was tolerance
- The Arthashastra is an ancient Indian treatise on statecraft, economic policy, and military strategy, written in Sanskrit. It identifies its author by the names “Kauṭilya” and “Vishnugupta”; both names are traditionally identified with Chanakya.
- (c. 350–283), who were a scholar at Takshashila and the teacher and guardian of Emperor Chandragupta Maurya, founder of the Mauryan Empire. The text was influential until the 12th century when it disappeared. It was rediscovered in 1904 by R. Shamasastry, who published it in 1909. The first English translation was published in 1915.
- The Manu smṛti (“Laws of Manu’) is the most important and earliest metrical work of the Dharmaśāstra textual tradition of Hinduism.
- first translated into English (from manuscripts) in 1794 by Sir William Jones.
- S.D. Sharma, Administration of Justice in Ancient India, Harman Publishing House, New Delhi, 1988, p.72
And pluralism, and was cited across Southeast Asia. The Indian autochthonous legal tradition is Hindu8 or Dharma. The Sanskrit word Dharma means right or proper conduct and covers concepts such as law, morality, duty, and obligation. Hindu law knew no hierarchy of legal agencies.
There were innumerable overlapping jurisdictions; many groups enjoyed a degree of autonomy in administering law among ancient traditions. Each caste had its own tribunals, sometimes advised by Brahmans, markets, villages, and guilds had councils to decide disputes. These bodies decided cases, according to caste or local custom as well as, or instead of, rules derived from the dharmashastra.
The dharmashastra not only established different rules for different kinds of persons, but it incorporated and certified many bodies of rules not found within its pages. Every aggregation of people-castes, bodies of traders, guilds of artisans, families, sects, and villages-was entitled to formulate and apply its own customs and conventions.9
According to Dharmashastra in ancient India what prevailed was the rule of Dharma. The Idea of the rule of Dharma is wider in its connotations’ than what we understand by the expression rule of law or due process of law Dharma included within its ambit not only what was just and Legal but what was moral and natural as understood in Neetishastra before the origin of the State and creation of Kingship
There was an Ideal stateless society but an account of influential powerful and various people wickedness increased fall in the standard of behavior gave birth to a system of legal proceedings for the enforcement of rights and punishment of wrong. And the king who was appointed did this task from this.
- Ainslie T. Embree; (Ed), Encyclopedia of Asian History Vol.2, Coller Macmillan publishers,
- London, 1988, p. 411.
Arose Rajadharma, that is, the law laying down the powers duties and responsibilities of the king. Side by side courts with their powers, functions, and procedure as part of Dharma was established. And this marks the commencement of the Legal and constitutional history of India.10
The importance of Dharma was so much that is sustained the life of an individual, society, and the world. That is why Manu forcefully stressed its scrupulous observance”.11 the word Dharma is used in the context of the word Rajya it only means law and Dharmarajya means Rule of law and not religion.
In the context of legal and constitutional history Dharma means Rajyadharma evolved by the society through ages and it is binding on both the king, the ruler, and the people, the ruled. The kind was not the fountain of law and was not above law depicts that law was held in great eastern rules of natural justice similar to those existing at present were in vogue at that time as expressed by Vasishta. They were;
- On the dais
- In the open
- Without bias
- By giving reasons for findings and
- After hearing both the parties.12
Like Hindus, the Muslims never regarded the King as the fountain of low; he was only the fountain of justice. This was so because the underlying fundamental concept under Muslim Law, Like the Hindu Law was that authority of the king was subordinate to that of law. The Mughal Kings also observed the principals of natural justices, heard the parties in open court (darbar) gave fair and open hearing, and Pronounced judgment in open court.
The fair justice (Adalinsaf) of Jahangir is remembered by people like the one administered by Hindu Cnola king M.N. Kondacho who allowed a bell of justices to be rung by anyone who wanted justice. Thus the precedent started in Ancient India by Hindu Kings was continued by Mughals. However,
We may not put this practice of deciding disputes on par with that of the administrative tribunal because the comparison is out of place. The Hindu law and the Muslim Shari’at covered all aspects of life and did not differentiate much between moral, custom, and law. Even during the Mughal Empire in the Indian subcontinent, between the 16th and 18th centuries, Hindus and Muslims were ruled largely by their own sets of local customs and personal laws. The tradition of Indian legal history shows an excellent secular court system existed under the Mauryas (321-185 BC) and the Mughals (16th – 19th centuries) with the latter giving way to the current common law system.
Since the medieval period, starting from the eighth century, two major schools of personal laws have been followed such as Mitakshara13 and Dayabhaga.14Mitakshara by Vigyaneshwara, an authority on issues of family law was widely followed both in the south and North India. It had a further sub-schools enforce areas-Dravida (South India), Mithila, Bombay, and Banaras. The personal law of Dayabhaga was used in the region of Bengal. The Muslims largely followed the Sunni and the Hanafie15 type of laws. Hanafi types of laws originated from a Persian scholar Abu Hanifa. For both Hindu and Muslim legal
- The Mitākşarā is a vivşti (legal commentary) on the YajnavalkyaSmriti best known for its theory of “inheritance by birth.” It was written by Vijñāneśvara, a scholar in the Western Chalukya court in the late eleventh and early twelfth century.
- It was considered one of the main authorities on Hindu Law from the time the British began administering laws in India.
- The Dāyabhāga is a Hindu law treatise written by Jīmūtavāhana which primarily focuses on inheritance procedure. The digest is most notable for being based on Śāstric doctrines.
- Hanafi school is one of the four Sunni madhhabs (schools of law) in fiqh (Islamic jurisprudence).
- It is named after the scholar Abūşanīfa An-Nu‘manibnThābit. Among the five established Sunni schools of legal thought in Islam, the Hanafi school is the oldest. It has a reputation for putting greater emphasis on the role of reason.
Systems, there were other variations based on sectarian divisions (like the Sunni and Shi’a among Muslims), regional specifics, and the local customs and practices. The Tughlaq period saw the compilation of the code of civil procedure. It was called Fiqha-e-Feroze Shahi. The code prescribed details of the procedure and the law in several matters.
It was written in Arabic and was translated into Persian under the orders of Feroz Shah Tughlaq16 the procedure was followed till the reign of Aurangzeb when it was replaced by Fatawa-I-Alamgiri written in 1670. The diverse, decentralized system became even more complex with the conquest of much of India by Muslim invaders.
Muslim rulers had royal courts in cities and administrative centers that exercised general criminal (and sometimes commercial) jurisdiction and also decided civil and family matters among the Muslim population.