Comparison Of Manav Nyaya Shastra With Present Time

Law Hub Nepal जेठ ३०, २०७८
  • Niva Kumari Sah.

The Manav Nyaya Shastra is the first codified law of Nepal. It was written during the Malla dynasty which is known to be the 5th dynasty of Nepal. It was written by king Jayasthiti Malla in the 14th century along with the help of five learned person, Kritinath Upadhyaya, Kanyakubja, Raghunath Jha, Maithili Srinath Bhatta, Mahinath Bhatta and Ramanath Jha.

The Manav Nyaya Shastra was consequently written after the study of Manusmriti, Yagyawalkya Smriti, Mitachhyara Tika Brihaspati Smriti, Narad Smriti and other holy texts.

It was written concentrating on the practies that prevailed in the society then the Manav Nyaya Shastra has introduced many legal provision regarding house, land, castes, dead bodies etc. It was the major source of rendering justice during the medieval period much influence of religion can be found in the law then.

The Manav Nyaya Shastra has introduced many legal provision regarding house, land, castes, dead bodied etc It was the major source of rendering justice during the mediveal period. Much influenced of religion can be found in the law then.

This paper is limited on how the first codified law impelmented in our country. Before to Manav Nyaya Shastra, there was no any collected rule and regulation of the state i.e code before to him law was religion and was scattered in religion scripts. Therefore it was very difficult to a word justice.

Manav Nyaya Shastra was followed Santana Hindu Dharma and was a supported of Brahmanism, therefore Manav Nyaya Shastra was based on Hindu religion which established the hindu state polity.

During this period due to the growth of Tantic Buddhism social organization of Hindulism was disturbited therefore he was organized the society on the basis of manu smriti.

Manav Nyaya Shastra i.e code of jayasthiti malla not only bagan court practice. It prescribed the substantive and procedural in detail it touched he every aspect of society. It was more a collection of civil and criminal law .It include criminal commerical and law of compensation too including the rights and duties of the king with legal order.lets talk about some legal system of the Manav Nyaya Shastrathey are as follows:

Civil sections:

1 On husband and wife:

He/ she who leaves his/ her, wife/ husband without his/ her fault shall be punished. A husband cannot leave his wife although his marriage was happened within the restricted relationship of marriage and was happened without knowledge. Reason behind this was female are the source of re production and no one is allowed to check the race or generation. Marriage within was same caste was highly recogninged but intercast marriage was also in practice.

Marriage was to continue the race and purity of race was highly expected. Therefore offspring of same caste marriage were in high social status. Offspring by a higher caste male and lower caste female was called”Anulom”; whereas offspring by alower caste male and higher caste female was partition. Offspring of a partition was recognised as a overlapping of caste, that which was not permitted for marriage.

According to national civil code 2074 BS, divorce may be effected by the consent of both parties.If both parties are consent than divorce may be effected at any time.Husband may be effected divorce and wife is also may be effected divorce.Petition should be filled in the related district court for divorce.After the send of petition in the district court than district court is also give the opportunity for compromise the relationship.If husband and wife are not agreed to compromise the relationship than court should be effected the divorce.

2 On partition:

On partition Manav Nyaya Shastra had recognized the daya bhaga school of Hindu law except to following condition up to the life time of a father and without his will his property was not of partition.

– If a father had left thedemostic life and had turned to be a sage.

– If a mother is completely unable for reproduction or have abounded from fertility.

– If all the sister are all ready married.

Only after the death of a father his son were autherised to get his property accordingly. But the women property of a mother was divisable to her daughter only, after ther mother death.If a daughter is dead, her property shall be divided by such dead daughter.

According to son shall inherent her mother property. A father was authoriged to dived his property among his son equally or as according to his will. He was able to give more to his senior son or favourate one.reason behind this was that an elder brother is equal to the footing of a father.

Material that which was used to construct his residence. He who was residing there since a long period,he should have to vacate the land along with his property as a reut.He who had constructed his residence with land lords materials shall have to pay for it.

According to new civil code 2074BS , husband wife, father, mother, son and daughter shall be demmed to be coparceners. They are equal entitled to partation not only alive, but also if the women coparceners is pregnant at the time. If partition and the baby to be delivered by her is to become a coparcner partition shall be made by treating also such would be born baby as a coparcner and after setting his where partition share property.

If such baby is not born all have thenthe property subjected to such baby shall get by all coparcener equally and also there is provision that son and daughter born from those couple whose.matnminial relationship is dissolved then such children get property only from part of such couple and the son or daughter whose father is unknown.She get property from his her mother. And also if there is 2nd wife of husband or child then. They get property only from the part of his/her husband and father seperated may be effected act.

Anytime by obtaning partition share also widow. May effect seperation by taking her share. And also the coparcner shall relingush the partition share. But not by the partition share of a minor coparcner. And the deed share to be made if retinquishment. The partition to be effected with the deed of partition in written. If the partition is not effected voluntarity then any coparcner shall file the law suit in the comprtent court by seeting out inventary of property. Then the court partition the property according to such inventary and no one shall have to hide property if someone do then he/she shall not be subject to get such property. And without the consent the partition share not be exchanged then also provision that untill partition is not effected the property or income can be hold. During partitioning the debt as well to be divided equally to all coparcner and without consent of creditor not only one coparcner shall subjected to pay all debt.

On succession:

A daughter can succed her father property, if there is no any son. If there is no any son nor any daughter, property shall be succeded by his brother or by family member. In their absence, if shall be deposited to state treasury.But the property of a brahm in cannot be deposited in state treasury.

According to new Civil Code 2074 BS Succession deemed to be opened upon the death of a person succession to his or her property shall be deemed to be opened. Heir entitled succession his/ her deceaseds nearest heir shall be entitled to such succession where in mulkin ain 2020 there mentioned that coparcener of inheritance to be the generation to 7th generation. Distant heir entitled to succession such distant heir entitled to succession with whome the deceased the owner of property lived with distant heir with his partition share in spite there is his nearest heir no-6 of Mulki Ain. Maintaining and caretaking heir entitled to succession. If a neaver heir was staying with any heir. Who has not maintained and taken care of a person but a distant heir has done so,the distant heir who has so mainained and taken care of him or her shall be entitled to succesion.

On women property and practice;

If an widow goes to adultry leaving her son, her women’s property of her, her women’s property shall be succeded by her second husband. But the property of her previous husband shall be succeded by her son of previous husband. A women was not authorized for the transaction of immorable property, her property right was limited.

Hence her such an act were invalid. With the consent of her husband or in his absence with the consent of her son. She was authorized for a transaction of property.In the absence of above mentioned both, she must have to receive king’s permission.

Women’s property of a married women shall be succeded by her child or in their absence by her husband, If she is married following the rule of either. Brahma, pradapalya, Aarsha or Dalva from of marriage. If she was married under gandharva aasura or rakshasa or pisacha form of marriage, her women’s property shall be succeded by her father. In their childhood a female is under her father’s guardianship, in her youthfullness she is under her husband and in her widow period she is under her son’s guardianship.

But in the present situation Order to pay lump sum amount or alimony and after the divorce. If wife caanot take the partation then, that situation husband should be pay the some amount of money to the wife for maintaince.

In ancient times, most of the laws were discriminative.The discriminative were on the basis of gender, caste,economic status or political status.We can mark the difference from the examples below.

In ancient times, women were excluded from the property division .If they got married but today that not the case.A women can claim for her parent’s property or assets if she wants even after she is married.

In ancient times ,women divorce could not claim for any property or money from her husband or in laws but now husband must provide all possible financial aids to his spouse even after divorce.

In those days, If a criminal belonged to upper caste or he was financially strong then, he could get expelled from the punishment people with strong background could easily play with law and order. But today nobody is above law and order. Even criminals is punishable under the law, irrespective of its gender, caste, relation or social justice.

(Sah is the BALLB 1st year student of Kathmandu School of Law.)

तपाईंको प्रतिक्रिया व्यक्त गर्नुहोस् ।

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