Authored By: Yash Sahu - Jnr. Associate Editor Tanushree Suman Ray - Jnr. Associate Editor Begumhan Simsir - Jnr. Associate Editor Sathyajith – Jnr. Associate Editor Arun Kumar. R - Associate Editor
Mythology throws on us various skills that are essentially vital to carry out a prosperous life. It talks about today’s context including various teachings from the holy scriptures that help us to resolve the problem in the contemporary situation. Religions have some writings which pay the parts of the human behaviour in the society and community, there are numerous instances where the laws have been divided based on the Holy text of religion, for example, the Hindu Marriage Act the Sharia law, and much more all the rules in the Sharia law based on the Holy Quran which is the basis for the judgment of Muslim.
1. Intercaste marriages:
It has always been a debatable topic in the Indian context and current enactment like the Special marriage Act, 1954 provide provisions for the marriages regardless of caste, creed, race, community and religion. In the Mahabharata, Lord Krishna had also emphasised the Intercaste marriages.
Krishna stated: “klaibyam ma sma gamaḥ partha naitat tvayyupapadyate Kṣhudram hṛidaya-daurbalyam tyaktvottiṣhṭha parantapa” “O Parth, it does not befit you to yield to this unmanliness. Give up such petty weakness of heart and arise, O vanquisher of enemies.” “Hence, in Bhagavad Gita, Lord Krishna has supported inter-caste marriages.” This practice of caste discrimination is manmade and those who follow it are termed “unmanly” by the Lord in Gita. So, if you are a Hindu and you think you are upgrading your religion and dynasty by not supporting inter-caste marriage, then these kinds of people are erroneous…
2. Divine oath:
In the ancient era, it was very essential for the witnesses in the darbar of the king to swear an oath on the holy scripture/object to testify about their statement which would provide them with veracity to speak as it is believed that the fear of the punishment from the God will prevent the individual for being a fabulist. Similarly, the Laws were derived by the East India Company in the Indian Oath Act, 1840, under Act 5 of 1840 stated that the Muhammadans were sworn on the Quran and the Hindus on the water of the holy river Ganga. This states that the tradition for the divine oath was pre-existing took the form of law.
3. Jurisprudence in and as Mahabharata: Whenever and wherever there is a decline in religious practice, O descendant of Bharat, and a predominant rise of irreligion-at that time I descend Myself.
The philosophy of Mahabharata like natural law theory in acutely empowering Mahabharat does not intend. It places the agency on of human competing claims to the throne. On behalf of the Kauravas and Pandavas are dubious. Duryodhan refuses to grant the Pandavas even five villages. Though king Dhritarashtra had already divided the kingdom. Pandavas postulation as heirs apparent to the throne in equally unfair as their father Pandu was younger to Dhritarashtra. As in life so in law there is a constant struggle between the lesser of the two evils. It is clear from the natural law theory as well as Mahabharata is that human reason incapable of exploring the truth called Dharma.
Now on modern law and legality, it’s a case of a land dispute resulting in oppression and injustice to a younger brother. But justice was denied to Pandavas. In the present consent of land equal share of lands should have been given to Kauravas and Pandavas. When justice was denied, ultimately war was the only way which was fought and Dharma wins with the patronage of Lord Shri Krishna. Finally, justice was given to the Pandavas killing Kauravas. In modern law this quite visible in the land dispute between two brothers.
4. Representation of Women in Pre-Islamic Turkish Societies and Epics
In pre-Islamic Turkish societies, the nomad era, women are described similar to the era's ideal male type, Alpic male. Similar to male types of the period, women were riding horses, shooting arrows, sword playing, and fighting enemies just like males. Women are more active in social life during the nomadic pre-Islamic Turkish societies in comparison with women during the pre-Islamic Turkish societies, who have adopted a sedentary life. Women are present in every field of life in nomadic societies, which becomes less of an occasion with the adoption of a sedentary life. A common practice in many societies, of women being given as a gift to neighbour rulers, women trafficking, women slavery was strictly forbidden in these societies.
In the ancient Turkish belief system, women have a special place. Hakan’s have consulted their wives before making any decisions. In myth, women are always prominent parts of the history and power plant of the main protagonist. In daily life, women went hunting with men, rode horses and fought. Male-female relations are earnest. Women and men are both present in every situation and duty. A woman's social standing is high in these societies. In the Epic of Creation, an ‘Altai-Yakut Turks’ epic, which also is known as one of the earliest known Turkish epics, Ak-Ana (White Mother) is the inspiration that made the god create humans. Tomris Hatun, granddaughter of Alp Er Tunga, the protagonist of the Alp Er Tunga Epic has followed her grandfather's footsteps, fought and won many wars with her army that constituted mostly of women. In the Shorian Epic ‘Oğlan’, women don't get married at an early age and tended to choose men who could defeat them, as their husbands. In this era, women married only if and when they wished to. In early Turkish culture, females symbolised fertility and the power of the creator. Thus the world's main order was seen matriarchal. In the epic of ‘Oguz Kagan’, the main protagonist Oguz Kagan unites with women, bringing equality by combining matriarchy and patriarchy. More precisely, chooses to recognise and harmonise with the existence of women, rather than denying it.
As can be seen from above and many of the Turkish epics, women were protected by laws and had a high social stand in early Turkish societies. Especially in the nomadic era, women were equals to men both in daily lives and governing.
5. Folk Law in Dada Qorqut Epics
Epics of Dada Qorqut are one of the most important sources of Turkish language, culture and literature. The book consists of various epic stories of the Oghuz Turks, which carry morals and values of the nomadic Turkish societies and pre-Islamic Turkic belief system. There are twelve different stories in the book, which do not only show the traditions and cultural beliefs but also the legal practices of the time.
"Divine Justice" is a strong motive in these stories. In "Bamsi Beyrek of the Grey Horse", Crazy Karcher is punished by the god when he goes against Dada Qorqut. Even though stories give a glimpse of governance and politics of the time, many daily practices and civil law practices can be found in the stories. One of these is the naming procedure of the child. In stories, Dada Qorqut gives the names of the newborns. The reflections of this practice can be seen in Turkey today, in the tradition of the eldest of the family leads the child's naming ceremony where s/he announces the child's name to the child and everyone else officially. Exchanging tings in engagement is also a tradition mentioned in the stories that are still in practice today. A developing practice of the time, inheritance, as mentioned in "Wild Dumrul Son of Dukha Koja", where Wild Dumrul tells his wife that his property is hers after his death and she can remarry. Fields such as vicinity rights, the law of war, adultery and oats were covered in the stories, giving the reader an idea of the legal practices at the time and the first versions of the laws we live by today.
6. Ramayana and Privity of consideration
It is needless to point out the importance of studying landmark cases considering, we presently have a system that has evolved out of a colonial rule. Having said that, it also becomes equally important for us to have an Indic perspective, which would make us aware of our roots and the land that we live in. If we can study the principles, doctrines and morals that have foreign origins, there is no reason for us to neglect the principles and doctrines which have developed in India.
Concerning the proposition regarding privity of consideration, one can refer to the Ramayana for understanding it through an Indic lens. The doctrine of privity of consideration states that consideration can only be transferred from the contractual party, and not a stranger. In the Ramayana, there is one instance where Queen Kaikeyi seeks to enforce two boons given to her by King Dasharatha for saving his life on a battlefield some time ago. During the battle, King Dasharatha had promised ‘to do’ something at the desire of Kaikeyi in the future for saving his life. Queen Kaikeyi decided to use these boons when she wanted her son to be coroneted as the King and Rama be sent to exile. While the privity of contract and consideration may tell us that Queen Kaikeyi could only ask King Dasharatha to perform the obligation, it was Rama, who at the desire of Kaikeyi left Ayodhya. This instance demonstrates that the privity of consideration was probably not recognized in India.
Presently, as opposed to the English law, the proposition relating to privity of consideration is not recognized in India. When we read Section 2(d) of the Indian Contract Act, 1872, the language makes it clear that the consideration need not be furnished by the contractual party.
This means that, like the instance from Ramayana, the contractual obligation can be enforced against the promisor, regardless of who transfers the consideration. In law schools, the students are expected to memorize a landmark case Chinnaya v. Ramayya (ILR (1876-82) 4 Mad 137) of Madras High Court which is a leading authority. In this case, the daughter promised to pay her mother’s sister (aunt) a sum of annuity for which the consideration was that the mother would transfer certain lands to the daughter. However, the daughter refused to pay the annuity by stating that her aunt had not furnished any consideration. The court cited the term ‘any other person’ in the aforementioned section and allowed the aunt to recover the annuity.
If the case has to be viewed in the context of Ramayana, the judge would have probably looked at the duty which the daughter owed to her aunt. Probably, it is time for us to look beyond case laws for a better understanding of law, history and culture.
7. Reference of the notion ‘Country’ under Thirukkural
Explanation: The inspiration for choosing “Country” from this “Universal book of
principles” is that any law to effectively function; it requires a definite territorial boundary. Even among the 4 aspects of Sovereignty, the territory stands first. So it would be better to start with the notion and features of a country or a nation before going into the law.
In this chapter, the saint deals with what all necessary features a good nation must possess, how a country should run and what areas it should avoid itself from. In verse 738, he lists out 5 essentials that a country must have, Firstly, unfailing health of its subjects against the deadly diseases and disorders. Secondly, fertility in agriculture, domestic husbandry and allied areas. Thirdly, wealth i.e., the economy of the country should be maintained at an optimum level. Combining these three the government should offer happiness and security in life to its people.
Verse 733 mentions on how a country needs to face a crisis. He says both the contribution of the king and subjects are required to run a country. At the time of any crisis, the king should stand first and his subjects must support him by paying the dues. This can be compared with the present-day system of taxation. Under verse 734, he mentions 3 areas from which a country should stay away. First is the famine, that is, poverty among people must be eradicated by making use of the fertile land and improving productivity in other sectors. Secondly, taking precautionary action towards deadly disease or plague, similar to the proverb ‘Food is medicine’. Finally, a country must avoid destructive foe, and maintain a healthy and diplomatic relation with others.
Verse 737 deals with the geographical structure of a country, he stresses the need for water sources both from the sky as rain and from the mountain as glaciers and rivers. This makes the country a prosperous and secure one. The final verse 740 simply reminds us that even if a country possesses all these features, it is nothing without a good king. This is what the Constitution of India mandates; no country should run without a government; either it should be lead by an elected leader or by a constitutional authority.
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