Sources of Hindu Law , ancient and modern sources.

watch on YouTube

Sources of Hindu law

Sources of law is the basis of origin from where any state enables to govern or interpret law. It is a basis from where laws have evolved or made. 

Sources of Hindu law

1- Ancient sources

   a. Shrutis

   b. Smritis

   c. Commentaries and digests

   d. Customs

2- Modern Sources

   a. Judicial decision

   b. Legislation

   c. Justice equity and good conscience. 

1- Ancient/Traditional Sources

 a. Shrutis (Vedas): Shrutis are considered to be the primary and divine source of Hindu Law. 

•Shruti means what is heard by the sages (Rishis) in revelation of Deity (God)

• It is derived from root -Sru (to hear)

• By Sruti, meant the Vedas

 There are four Vedas

1. Rig Veda (oldest, contains eulogies of God and law")

 2 Yagur Veda (Associated with rituals and endowed with magic properties). 

3 Sam Veda (Contains prayers composed in mantra).

4 Atharva Veda (Contains magical charms)

•Srutis also consist six Vedangans and Upanishads.

• Sruti is the fundamental foundation of Hindu law , yet it is not legally enforceable. 

•The Vedic is assumed  to be between 4000 BC to 1000 BC. 

•During this period, the society was divided into Varn and life war divided into ashramas. 

• Varna Dharma

1-Brahma Varna

2-Kshatriya Varna

3-Vaishya Vauna 

4-Shudia Varna

• Ashrama Dharma : Ashrama Dharma divides man's life into four stages-

1st Stage - Brahmacharya

2nd Stage - Grihastha

3rd Stage - Vanaprastha

4th Stage - Sanyas

* Various sages (rishis) and muniş incorporated various local customs into Dharma and thus various sakhas came into existence. 

2. Smritis: Smritis means "what was remembered. Next to Shrutis, the Smritis are the most Important source of Hindu Law.

•Smritis represent what were recorded by sages in their own words from what was remembered, from the word of God by them. 

•Manusmriti is the oldest smriti. 

* Smritis are of two kinds

1- Dharma Sutras: Smritis in the form of prose are called dharmasutras. It is early smriti which were written between 800 to 200 BC. It also certain Verses. 

• Dharmasutras explain the duties of men in various relationships. 

Some of the impostant thinkers/sager authors of the dharmsutra are-

→ Gautama: Deals with legal and religious matters

→ Baudhyana:Talks about marriage and inheritance 

→ Apastamba:Language is very clear and forceful and rejected prajapatya marriage.    →Vasishtha: Recognized remarriage of virgin widow's. 

→ Other Authors are Vishnu and Harita. 

2-Dharma Shastra: The smritis in the form of poetry/verse are called dharma shastra. 

•They were more systematic and clearer than the dharma sutras. 

•The most eminent authors are Manu, Yagngavalkya, Narada, Vishnu, Devala, Vrihaspati, Katyayana an Vyas. 

• The three most important issues that the Dharms Shastra deal are-

→ Aachara: Includes theories of religious observances. 

→ Vyavahar: Includes civil law. 

→ Prayaschitta: Deals with penance and expiation. 

• Some Important Smritis -

Manusmriti -

• It is also called manu samhita.

•Oldest smriti and one of the 18 smritis. •Manusmriti was composed in 200 BC

• Manu, it's Creator is regarded as the first human being. 

• Compiles all the laws that were scattered in pre smriti sutras and gathas.

•It guides individual, community and nation in their conduct (according to time and place). 

 

Yagnavalkya Smriti 

• Language is very direct and clear 

• More logical

• Deals with civil law mostly and much with religion and morality 

• He considered law to be supreme and king to

be an enforcer to law .

•Vijnaneshwar's commentary "Mitakshara" on this smriti, is most important legal treatise. 

• Mitakshara is followed almost in whole India except West Bengal and Orissa.

•Includer most points from Manusmriti and also differ on many points such as position of woman and sudras. 

 Narada Smriti

•Only smriti which did not deal with religious and moral issues. 

•Wholly concentrates on civil law. 

•Gives a lot of importance to customs. 

3-Commentaries and Digests: Commentaries and digests came after smritis between the period of 700 AD to 1700 AD. 

•Conflicts and differences in the rules of smritis give rise to commentaries. 

•The work done to explain a particular smriti is called a commentary 

•Commentaries were composed in the period immediately after 200 AD 

*Digests- were mainly written after that and incorporated and explained material from all the Smriti. 

•Objective: The main objective of these texts is to gather the scattered material available form of smritis and shrutis.

2. To compile it in a more comprehensive form for the betterment of society. 

3.Therefore, these digests were much logical and to the point in approach. 

 Some prominent commentaries are

1. Mitakshara written by Vijayneshwara on the code of Yajanvalkya

2. Dayabhaga Law School based on commentaries of Jimutvahana  

3. Mayukha/Vyavahara Mayukha by Nilkantha Bhatt. 

4. Vaijayanti ley Nanda Pandit (Last Commentary). 

•After 12th century, there was a trend of writing Commentary on different Smritis together. This word came to be known as Digests (Nibandhas)

• The most important digest is Jimutvahana's Dayabhag that is applicable in the West Bengal and Orissa. 

4. Custom: Custom is regarded as most important sources of law. 

Custom is a rule, which in a particular familly, class community, district etc has owing to prolonged use, obtained the force of law. 

•Case; Deivanai Achi v/s Chidambaram [AIR 1954 Mad 677

In this case, it was held that a custom to have the force of law, it is necessary that it must be ancient, certain and reasonable. 

★ Distinction Between Custom And Usage -

•Usage is normally a repetition of acts with that may be of recent origin. 

•Custom is the law or general rule that arises from such repetition (usage). It must be ancient, certain and reasonable. 

★ Modern (Secondary) Sources -

1- Judicial Decisions/Precedents- The process in which a court takes decision by taking the previous decisions for the similar cases happened in the past as a source for deciding a subsequent case is called Judicial precedent. 

• Judicial decisions have modified and supplemented the pure Hindu law 

• Now, Judicial decisions/preccedents has emerged as important sources of the Hindu law. 

•It includes all the decisions of the Supreme Court and High Courts of India. 

2. Legislation: Legislations means the acts of the Parliament. Many important Acts have been passed which have effect of changing the nature of Hindu law at several stages/instances.

•Legislation has become at  present potential source of law in India. 

• The important Legislations which have modified, altered and supplemented the textual Hindu Law are-

1. The Caste Disabilities Removal Act, 1850 (The Freedom of Religion Act)

2. The Hindu Marriage Act, 1955 

3. The Hindu Widow's Re marriage Act, 1856

4. The Hindu Adoption and Maintenance Act, 1956.

5. Hindu Succession (Amendment) Act, 2005.

6. The Hindu Women's Right to Property Act, 1937

7. The Special Mariage Act, 1954

8.Prohibition of Child Marriage Act, 2006.

3- Equity, justice and good conscience: In cases where in particular situation no proper law is given and in cases of a conflict between the rules of smritis, one should follow the rule which is based on reason (good conscience), justice and equity. 

• According to Yagngavalkya, if in particular case there is a conflict between the rules of law of smritis and equity justice, justice should supersede. 

•Case - Gurunath v/s Kamlabai 1951 SCR 1135

In this case, the supreme Court has observed that now it is well established that in the absence of any rule of Hindu law for a particular case on the principle's basis of equity, justice and good conscience unless in doing so that decision would be repugnant to or inconsistent with any provision of Hindu law.