Sources of Hindu law

Sources of Hindu law

Sources of Hindu Law

Sources of Hindu Law

The sources of Hindu law can be classified under the following two heads:

I. Ancient Sources 

Under this would come the following:

(i) Shruti

(ii) Smriti

(iii) Digests and Commentaries and

(iv) Custom.

II. Modern Sources

Under this head would come the following :

(i) Justice, equity and good conscience

(ii) Precedent, and

(iii) Legislation.

I. Ancient Sources

(i) Shruti-

It literally means that which has been heard. The word is derived from the root “shru” which means ‘to hear’. In theory, it is the primary and paramount source of Hindu law and is believed to be the language of the divine revelation through the sages.

The synonym of shruti is veda. It is derived from the root “vid” meaning ‘to know’. The term Veda is based on the tradition that they are the repository of all knowledge. There are four Vedas namely, Rig Veda (containing hymns in Sanskrit to be recited by the chief priest), Yajurva Veda (containing formulas to be recited by the officiating priest), Sama Veda (containing verses to be chanted by seers) and Atharva Veda (containing a collection of spells and incantations, stories, predictions, apotropaic charms and some speculative hymns).

Each Veda has three parts viz. Sanhita (which consists mainly of the hymns), Brahmin (tells us our duties and means of performing them) and Upanishad (containing the essence of these duties). The shrutis include the Vedas along with their components.

(ii) Smritis-

The word Smriti is derived from the root “smri” meaning ‘to remember’. Traditionally, Smritis contain those portions of the Shrutis which the sages forgot in their original form and the idea whereby they wrote in their own language with the help of their memory. Thus, the basis of the Smritis is Shrutis but they are human works.

There are two kinds of Smritis viz. Dharmasutras and Dharmashastras. Their subject matter is almost the same. The difference is that the Dharmasutras are written in prose, in short maxims (Sutras) and the Dharmashastras are composed in poetry (Shlokas). However, occasionally, we find Shlokas in Dharmasutras and Sutras in the Dharmashastras. In a narrow sense, the word Smriti is used to denote the poetical Dharmashastras.

The number of Smriti writers is almost impossible to determine but some of the noted Smriti writers enumerated by Yajnavalkya (sage from Mithila and a major figure in the Upanishads) are Manu, Atri, Vishnu, Harita, Yajnavalkya, Yama, Katyayana, Brihaspati, Parashar, Vyas, Shankh, Daksha, Gautama, Shatatapa, Vasishtha, etc.

The rules laid down in Smritis can be divided into three categories viz. Achar (relating to morality), Vyavahar (signifying procedural and substantive rules which the King or the State applied for settling disputes in the adjudication of justice) and Prayaschit (signifying the penal provision for commission of a wrong).

(iii) Digests and Commentaries-

After Shrutis came the era of commentators and digests. Commentaries (Tika or Bhashya) and Digests (Nibandhs) covered a period of more than thousand years from 7th century to 1800 A.D. In the first part of the period most of the commentaries were written on the Smritis but in the later period the works were in the nature of digests containing a synthesis of the various Smritis and explaining and reconciling the various contradictions.

The evolution of the different schools of Hindu law has been possible on account of the different commentaries that were written by various authorities. The original source of Hindu law was the same for all Hindus. But schools of Hindu law arose as the people chose to adhere to one or the other school for different reasons. The Dayabhaga and Mitakshara are the two major schools of Hindu law. The Dayabhaga school of law is based on the commentaries of Jimutvahana (author of Dayabhaga which is the digest of all Codes) and the Mitakshara is based on the commentaries written by Vijnaneswar on the Code of Yajnavalkya.

(iv) Custom-

Custom is regarded as the third source of Hindu law. From the earliest period custom (‘achara’) is regarded as the highest ‘dharma’. As defined by the Judicial Committee custom signifies a rule which in a particular family or in a particular class or district has from long usage obtained the force of law.

Custom is a principle source and its position is next to the Shrutis and Smritis but usage of custom prevails over the Smritis. It is superior to written law. There are certain characteristics which need to be fulfilled for declaring custom to be a valid one. They are:-

(i) The custom must be ancient. The particular usage must have been practised for a long time and accepted by common consent as a governing rule of a particular society.

(ii) The custom must be certain and should be free from any sort of ambiguity. It must also be free from technicalities.

(iii) The custom must be reasonable and not against any existing law. It must not be immoral or against any public policy and

(iv) The custom must have been continuously and uniformly followed for a long time.

Indian Courts recognize three types of customs viz:

(a) Local custom – these are customs recognised by Courts to have been prevalent in a particular region or locality.

(b) Class custom – these are customs which are acted upon by a particular class. Eg. There is a custom among a class of Vaishyas to the effect that desertion or abandonment of the wife by the husband abrogates the marriage and the wife is free to marry again during the life-time of the husband.

(c) Family custom – these are customs which are binding upon the members of a family. Eg. There is a custom in families of ancient India that the eldest male member of the family shall inherit the estates.

II. Modern Sources

(i) Justice, equity and good conscience-

Occasionally it might happen that a dispute comes before a Court which cannot be settled by the application of any existing rule in any of the sources available. Such a situation may be rare but it is possible because not every kind of fact situation which arises can have a corresponding law governing it.

The Courts cannot refuse to the settle the dispute in the absence of law and they are under an obligation to decide such a case also. For determining such cases, the Courts rely upon the basic values, norms and standards of fairplay and propriety.

In terminology, this is known as principles of justice, equity and good conscience. They may also be termed as Natural law. This principle in our country has enjoyed the status of a source of law since the 18th century when the British administration made it clear that in the absence of a rule, the above principle shall be applied.

(ii) Legislations-
Legislations are Acts of Parliament which have been playing a profound role in the formation of Hindu law. After India achieved independence, some important aspects of Hindu Law have been codified. Few examples of important Statutes are The Hindu Marriage Act, 1955, The Hindu Adoptions and Maintenance Act, 1956, The Hindu Succession Act, 1956, The Hindu Minority and Guardianship Act, 1956, etc.

After codification, any point dealt with by the codified law is final. The enactment overrides all prior law, whether based on custom or otherwise unless an express saving is provided for in the enactment itself. In matters not specifically covered by the codified law, the old textual law contains to have application.

(iii) Precedents-
After the establishment of British rule, the hierarchy of Courts was established. The doctrine of precedent based on the principle of treating like cases alike was established. Today, the decisions of Privy Council are binding on all the lower Courts in India except where they have been modified or altered by the Supreme Court whose decisions are binding on all the Courts except for itself.

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