SOURCES OF HINDU LAW

Hindu law is a set of personal laws governing the social conditions of Hindus (such as marriage
and divorce, adoption, inheritance, minority and guardianship, family matters, etc.). It is not
Hindus alone who must follow Hindu law but there are several other communities and religious
denominations that are subject to its dominion such as Jains, Buddhists, Sikhs, Brahmo-
Samajists, Prarthana-Samajists, the Virashaivas and Lingayats and the Santhals of Chhota
Nagpur besides others.

Sources of Hindu Law

Broadly, there are following two types of sources of Hindu law:

• Traditional/Ancient sources.

• Modern sources.
Traditional/ ancient sources

Traditional sources refer to those ancient Hindu legal system which governed the conduct of
Hindus in that particular time. The traditional source of Hindu law is the guiding principle in the
present system also along with some modifications. So according to the traditional source of
Hindu law, there are 4 sources of Hindu law, which are as follows:

• Shruti (Vedas)

• Smrities

• Digest and commentaries.

• Customs

Shruti (Vedas)

Shruti means something which has been heard. The word is derived from “Shru” which means to
‘hear’. In theory, it is considered as a supreme and paramount source of Hindu law and is
believed the language of gods through the sages.

It is believed that sages have reached such a height of spirituality that they were informed about
Vedas by some divine order. Thus shruties include 4 Vedas – Rigveda, Yajurveda, Samveda,
Atharvaveda along their Brahmins, the six Vedangas and eighteen Upanishads.
Brahmins are considered as a guide to Vedas. Some people believe that Vedas contain laws and
code of conduct while others believe that laws have to be inferred from Vedas.

As mentioned before, there are four Vedas, it may be noted that each Veda has 3 parts viz:

• Sanhita(which consist of hymns)

• Brahmin(Which tell us duties and means of performing them)

• Upanishad(Essence of the duties)

Vedas provides rights and duties, Forms of marriage, the requirement of a son, partition, and
exclusion of women from inheritance but these can not be regarded as clear cut laws. Also, and
life was divided into various ashrams(Brahamchayra, Grihastha, Vanaprastha, sannyasa).
The concept of karma was also evolved during this time. It was believed that a person will be
rewarded as per his karma. Also the concept of ‘moksha’ was prevalent which provided that a
person could achieve salvation through knowledge and good deeds.

It is assumed that the Vedic period existed between 4000 to 1000 BC. During this time various
pre smrities and Gathas were composed.

Smrities

The word Smriti has been derived from ‘smri’ which means ‘to remember’. 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. Smrities can be referred to as a step ahead of smrities.

There are two types of smrities viz Dharamsutras and Dharamshastras. There is a very thin line
of difference between the two. The basic difference lies in the fact that dharamsutras are written
in the form of prose, in short maxims while dharamshastras are written in the form of
shlokas(poetry).

There are many Smriti writers and it is impossible to determine how many authors are there of
smrities. However, there are some notable Smriti writers, enumerated by yajanvalkya are Manu,
Attri, Vishnu, Harita, Yama, katyana, Brihaspati, Parashar, Vyas, etc.

The rules laid down by smritis can be laid down into the following categories:

• Achar(relating to conduct and morality)

• Vyavahar( Substantive rules which a king should follow)

• Prayaschitta( penal provision for the commission of wrong)

Manusmriti

This Smriti is the earliest and most important of all. It does not define a code of conduct in India
but also in various other countries such as Jawa, Sumatra, Bali, etc. The name of the author of
manusmriti is unknown as the author has formulated it under a hypothetical name of Manu, who
was considered to be the first human. Maybe it was done to gain divine and authoritative status.
Manusmriti is a compilation of all presmrities and gathas. Manu was a brahmin protagonist and
was harsh on women and Shudras. He holds customs to be of utmost importance and asks the
king to follow customs and he cloaked the king with divinity. He emphasized the concept of
‘danda’ which was meant for a proper enforcer of the law.

Digests and commentaries

Digests and commentaries came after smrities during the 7th century to 1800 A.D. During earlier
stages commentaries were based on smrities but in the later period, the works were like digests
containing various smrities and explaining and reconciling various contradictions.

The evolution of different schools of Hindu law is a result of these digests and commentaries as
these digests and commentaries are interpretations of the Smriti and hence the difference of
opinion is bound to occur. Owing to this reason, different schools of Hindu law emerged.

It was only after 200 AD, most of the work was done only on the existing material given in
Smrtis. 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 smritis.

Some of the prominent commentaries include Manubhashya, Manutika, and Mitakshra. One of
the most important digest is Jimutvahan’s Dayabhaga that is applicable in Orissa and Bengal.

Mitakshara is one of well known and supreme source of law in India. It is based on the
commentaries written by Vijayneshwara on the code of yajanvalkya while Dayabhaga law
school is based on the commentaries of Jimutvahana. Dayabhaga and Mitaksara are two main
sources of Hindu law in India.

The main objective of these texts is to gather the scattered material available in the form of
smrities and shruties and to compile it in a more comprehensive form for the betterment of
society. Thus, these were much logical and to the point in their approach.
Customs and usages

Custom can be defined as those crystallized practices which are followed by a community or
group of people for a considerable period, which now has become a governing norm in that
particular society or community. It means those established practices are being followed for a
considerable period.

Custom is also a principal source of law and its position is next to shruties and smritis. It is
superior to written law. Most Hindu law is based on the customs and it is recognized as a legit
means of a source of law even in smritis also. Customs can be classified into 4 types:

1. Local customs: These customs are followed in a particular geographical area and its
application is limited to that particular area only. For example in Rajasthan, there was a
custom of child marriage prevalent.

2. Caste and community customs: These customs prevail in a certain community of people
and the people of that particular community follow the custom. For example in Sikhs,
marriage is solemnized by Anand Karz.

3. Family customs: It refers to customs that exist in a particular family. They can be easily
abandoned as compared to other forms of customs.

4. Guild customs: These customs are followed by a certain group of traders.

The words customs and usages are often used interchangeably but there is some sort of
distinction between the two. Usage is the repetition of acts while custom is a law or general rule
that arises from such repetition. A usage may exist without custom but custom can never exist
without usage. Usage derives its authority from the parties to the transaction but custom where
existing is binding on the parties.
Requirements for a valid custom

1. Ancient: Ideally, a custom is valid if it has been followed from hundreds of years.

2. Continuous: It is important that the custom is being followed continuously and has not
been abandoned. Thus, a custom maybe 400 years old but once abandoned, it cannot be
revived.

3. Reasonable: There must be some reasonableness and fairness in the custom.

4. Not against morality: It should not be morally wrong or repugnant.

5. Not against any law: If a custom is against any statutory law, it is invalid.

6. Certainty: The custom has to clearly defined, it cannot be vague and confusing.

7. Consistency: There should be consistency between customs. Two customs that have
opposing viewpoints cannot be considered valid.

Modern sources of Hindu Law.

Modern sources of Hindu law refers to those sources which are comparatively new sources that
emerged over time and evolved in the present form. Following are the main source of Hindu law:

• Equity justice and good conscience

• Legislation

• Precedent

Equity justice and good conscience

Equity means being fair and implies fairness in dealing. Impartiality is the main attribute of
modern judicial systems. True justice can be delivered through equity and good conscience.
Where no rule is given, unreasonableness would prevail.
Sometimes it happens when a problem comes before the court for resolution, it cannot be settled
by prevailing laws. Such a situation may be rare but might occur. In such a situation, courts can
not refuse to provide a remedy, and also they are under obligation to decide such a case. In such
cases, the courts are guided by the principle of reasonableness, basic values, and fair play.

So this principle is known as equity, justice, and a good conscience and it is also known as
Natural law. This principle of natural law was prevalent in India since the British era.

So wherever conflict arises in the interpretation of Hindu law this principle is used by the courts
either to formulate a new law or to carry forward existing laws.

Legislation

The legislation is an act of parliament that plays an important role in the formation of Hindu law.
The legislation is often regarded as a tool for social change. The legislation provides a base and
authenticity to the laws. After the independence of India, there has been a steep increase in
legislation regarding the codification of personal laws.

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.

In modern society, this is the only way to bring in new laws. The parliament, in accordance with
the needs society, constitutes new laws. For example, a new way of performing Hindu marriages
in Tamil Nadu that got rid of rituals and priests was rejected by the SC on the basis that new
customs cannot be invented. However, TN later passed an act that recognized these marriages.

Examples of legislations include the Hindu marriage act,1955, Hindu succession Act, Hindu
minority and guardianship act, Hindu adoption and maintenance act, etc.

Also, most of the Hindu laws have now been codified as mentioned in the beginning.
Precedents

The doctrine of stare decisis started in India from the British rule. All cases are now recorded and
new cases are decided based on existing case laws.

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 judgment
of SC is binding on all courts across India and the judgment of HC is binding on all courts in that
state, except where they have been modified or altered by the Supreme Court whose decisions
are binding on all the Courts except for itself.

Precedent is called to be a source of Hindu law in two senses –

First – practically all the important principles and rules of Hindu law have now been embodied
in case law. In such matters, recourse to the source is not necessary. Reference to a leading
decision is enough.

Secondly, – Precedent is a source of law in the sense that by the purpose of judicial
interpretation, doctrines, principles, and rules of law stand modified or altogether new principles,
doctrines, and rules have been introduced in the body of Hindu law. For these principle doctrines
and rules, the sources of authority are Precedent.

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