majority in Hindu law

[Dipak Bhattacharya]

10 04 09
< 'law' as Hindu customs, really functions irrespective of what the Sanskrit texts say>
 
It is true that in some cases local customs rather than coded laws worked for village 
transactions. I made some personal enquiries. In view of the cases I saw, limited to eastern 
UP and Bengal, it could be concluded that caste Hindus tend to go by the coded law. It is 
only with 'scheduled castes' that different inheritance and marriage laws (caste law, local 
custom) can be noted. Divorce, for example, is a commonly accepted practice among such 
castes. These castes had been deliberately kept outside the mainstream society and called 'grāmavāhyas'. 
But this situation of alienation, and only this had been known to  Hegel, Marx, Maine and 
others who thought that to have been eternal and built up their precious theories on the 
Orient ('special unchanging character of the East', 'Asiatic mode of production'), could not 
have developed before the Dharmasūtras. The earlier practice of wide Aryanisation leading 
to ennobling is very prominent in Kautilya's Arthaśāstra. The resulting mobility could not 
have been conducive to the condition Dr. Bijlert has spoken of. One may have an idea of that mobility from R.C.Hazra's Studies in the Puranic record etc: 207-210 (Dacca, 1940). 
Revived Aryanisation and  promotion of uniform custom (detested by traditionalists) have 
been going on for a long time, quite vocally in the 19th century but silently at present.
There has been much more comprehensive discussion (2004) than available in Hazra (he just noted something that appeared strange to him) but that is in Bengali.
DB.

--- On Fri, 10/4/09, victor van Bijlert <victorvanbijlert at KPNPLANET.NL> wrote:


From: victor van Bijlert <victorvanbijlert at KPNPLANET.NL>
Subject: Re: majority in Hindu law
To: INDOLOGY at liverpool.ac.uk
Date: Friday, 10 April, 2009, 3:13 AM


I am tempted to suggest that 'law' as Hindu customs, really functions
irrespective of what the Sanskrit texts say. To what extent have the
Sanskrit Dharmashastras any authority in actual life situations? Do
Dharmashastras have any authority at all, or are they simply digests of
ancient Brahmanical advice on many life-issues?
Victor van Bijlert


-----Oorspronkelijk bericht-----
Van: Indology [mailto:INDOLOGY at liverpool.ac.uk] Namens Donald R. Davis, Jr.
Verzonden: donderdag 9 april 2009 23:22
Aan: INDOLOGY at liverpool.ac.uk
Onderwerp: Re: majority in Hindu law

Allen,

As always, Ludo Rocher has an article on this issue, "The Status of 
Minors according to Classical Hindu Law," Recueils de la Societe Jean 
Bodin 35 (L'Enfant) (1975) 377-393.  So far as I know, the standard age 
for majority is sixteen, as attested in several texts.  Before that, the 
term used is baala; after sixteen one becomes vyavahaarajna (or some 
synonym).  The main legal issue, of course, is the capacity to make 
valid contracts, but minority also comes with restricted criminal 
liability and additional protections for the minors' property and person. 

Independence of the son in terms of residence or occupation is, to my 
knowledge, not a big issue for the Dharmasastra.  All bets are off when 
it comes to law in practice, however, as you suggest.  The ways in which 
regionalized communities accepted or rejected partitions of joint family 
property was staggeringly diverse.  Our knowledge of this diversity, as 
in so many areas of Indian law, is almost all recent and observed during 
colonialism. 

Best,

Don Davis
Dept of Languages & Cultures of Asia
University of Wisconsin-Madison

Allen W Thrasher wrote:
> George Cardona's citation of Patanjali on addressing a son who is
independent of his father raises a question I was already meaning to raise
here.
>
> "Patanjali remarks that someone whose father is still alive but is
independent is addressed using a gotra term; such an offspring bears the
technical name 'gotra' out of scorn, as when one addresses one who should be
called gaargyaaya.na (using a yuvan term) is addressed as gargya."
>
> I was meaning to get Kane from the stacks and check him first, but chance
has brought it up.  Is there such a thing as an age of majority in Hindu
law, an age at which a son may make decisions independent of his father?  I
can't think of any such thing in law or narratives.  In the stories the sons
who form romantic marriages usually have fathers already dead, unless
they're sent off to a svayamvara like Rama.  May a son with a living father
decide his own residence or occupation, or contract an otherwise suitable
marriage if he is a long distance from his father?
>
> Of course, some modern regional property regimes allow a son to request
(or demand?) his share of the family property from a living father.
>
> Gunther-Dietz Sontheimer's observation in "The joint Hindu family" that
Hindu law has two principles in tension - the subordination of the son to
the father and the identity of the son to the father - may be pertinent
here.  The subjection of adult sons doesn't seem to have worked out to be as
drastic as in Roman law.  I read an article on Punjab land law once that
said that when a decision about land is to be made, all potential male
shareholders are consulted, not only adults and youths but boys of seven and
up, although the latter's opinion won't be considered a quasi-vote like that
of the older males.
>
>
> Allen
>
> Allen W. Thrasher, Ph.D.
> Senior Reference Librarian
> Team Coordinator
> South Asia Team, Asian Division
> Library of Congress, Jefferson Building 150
> 101 Independence Ave., S.E.
> Washington, DC 20540-4810
> tel. 202-707-3732; fax 202-707-1724; athr at loc.gov
> The opinions expressed do not necessarily reflect those of the Library of
Congress.
>   



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