14. Indian approach about punishments

In ancient India, punishment was according to dharma or through atonement (Prayascitta). Society benefited through morality and individual by atonement. 'dharmena papam apanudati'. In Jnanasadhana criticism of Taithiriya samhita, it is * Yajnavalkya smriti-11-249-253 & Manusmriti-8-401,402 "Bid-9-64-66

36 said that man is separated from sin due to morality or dharma. The main aim of punishment is to clean the sinner Gouthama endorses that punishment should be meted out to reduce the sinner's intellectual pride and to make him repent. Santiparva of Mahabharatha states that the fear of punishment makes man keep away from the crime¹¹. King gives punishments. Yaman (after death) arouse fear in the minds of the people. If a person commits a sin and he atones for his sin he should no longer be called a sinner, scandal mongers were severely punished. Modern law. The relation of the medieval law with the modern law is more interesting after the dawn of independence. More over medieval law is specially prepared to meet the needs of Indian people. e.g. The ancient law regards the marriageable age of girl as from five years to ten years. In this respect, the ratio of the age between the marriageable girl and boy was indicated as 1:3. Dh.S. authors used the expression "Nagnika"- a girl who looks pretty usmariti-8-318. haratha santiparva-15.34

37 when she is naked as most preferable for marriage. However the medieval Hindu law laid down the condition that there should be no child marriage. Before the arrival of foreigners, systematic law was prevalent in India. The western thinkers thought that some laws were essential to control man. These laws should come from monarchy of a king. The orders given by the kings of Babylonia, Greece, Egypt since ancient times were considered as divine. Later it has become a part of western thought. Although the English became the rulers of India, for centuries, they faced many difficulties in the interpretation of the juridical texts due to their lack of knowledge in Sanskrit to follow the ancient Indian jurisprudence. They were ignorant of Hindu Dharma Sastras also. Adopting the Hindu legal system, British judges have made remarkable contributions:- (1) The caste disabilities removal act-1850. Under this act the provisions of the ancient Hindu law which deprived the right of inheritance on the loss of caste was abrogated.

38 (2) The Hindu widows remarriage act-1856. Under this act the remarriage of a Hindu widow in certain cases was declared legal. (3) The native converts marriage dissolution act-1866. This act provided for obtaining dissolution of Hindu marriage by a Hindu on his being converted to Christianity under certain situations. (4) Transfer of property act-1882. This act modified the law governing certain kinds of transfer of property. (5) The Hindu inheritance act-1928. This act put limitation on disabilities in the matter of inheritance. (6) The Hindu law of inheritance, amendment act-1929. Under ym this act, the right to inheritance was created in favor of son's daughter, daughter's daughter, sister and sister's son, as heirs next after father's father, but prior to father's brother. This act is since repeated by the Hindu succession act-1956. (7) Indian succession act-1925. This act was made applicable to Hindus in so far as it related to testamentary succession vides-57- 214 and scheduleIII.

39 (8) Child marriage restrained act-1929. This act put restriction on marriage of children below the prescribed age. (9) The Hindu gains of learning act-1930. This act made the entire acquisition by a Hindu through learning, his self acquired property. (10) The Hindu women-right to property act-1937. This act gave the right of inheritance to widows and to that extent affected the law governing mithakshra coparcenaries. This was repeated by the Hindu succession act 1956 in modern India also. After the constitution came into force certain radical changes have been brought about by the following enactment introduced by the parliament. 1 The special marriage act, 1954, providing for marriage by registration. 2 The Hindu marriage act, 1956, providing inter alias for dissolution and divorce after marriage on specific grounds. This act has been further amended by the Hindu marriage (Amendment) Act, 1976, providing for divorce by consent.

40 3 Hindu succession act 1956 providing inter alia for converting the limited estate of a woman under ancient Indian law into an absolute one and providing equal share for daughters along with sons in share of property of the Hindu father, in case of intestate succession. 4. Hindu minority and guardianship act 1956. 5. Hindu adoption and maintenance act, 1956. Even with all changes, the topic such as inheritance, succession, marriage, gifts, partition, pious obligation, the old laws continue to operate subject to the legislative changes and are enforceable in courts of law.42