LL.B.(HONS.

) THREE YEARS COURSE (2ND SEMESTER)

PAPER –III
FAMILY LAW-II (HINDU LAW)
SESSION: 2023-24

UNIT-I

SOURCES OF HINDU LAW

BY
MRS. ANJALIKA
ASSISTANT PROFESSOR
DEPARTMENT OF LAW
C.M. P. DEGREE COLLEGE
UNIVERSITY OF ALLAHABAD
PRAYAGRAJ
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SOURCES OF HINDU LAW

,
 SOURCES OF HINDU LAW
• Sources are the means of knowing law or sources means “basis from which law
is evolved.”
• The study of sources of Hindu Law is the study of various phases of its
development, which enabled it to conform to the changing need of the society.
• The sources of Hindu Law can be classified under the following categories:

1. Ancient Sources 2. Modern Sources

a. Shruti a. Equity, Justice & Good Conscience
b. Smriti b. Precedent
c. Digests & Commentaries c. Legislation
d. Customs and Usages
 I. ANCIENT SOURCES
1. SHRUTI
 The term ‘Shruti’ is derived from the word ‘SRU’ which means ‘to hear’ (what was heard).
 Shrutis are considered as the primary and paramount source of Hindu Law.
 It is divine revelation or divine law. The theory is that some of the Hindu sages had attained great
spiritual heights, so much so that they could be in direct communion with God. At some such time the
sacred law was revealed to them by God Himself.
 The term ‘Shruti’ relates to 4 Vedas viz; Rig Veda, Yajur Veda, Sama Veda and Atharva Veda along
with their respective Brahmanas (6 Vedangas) and 108 Upanishad’s.
 Brahmanas are like appendices to the Vedas which are added later on.
 Shruti deals with religious rites that contain the meaning of attaining true knowledge and Salvation
(Moksha).
 These Shrutis including Upanishads constitute the complete codes of the spiritual learning which are
helpful in the attainment of Salvation.
VEDAS:
 Vedas are considered as fundamental or primary source of law and source of all knowledge.
 Vedas primarily contains theories about sacrifice, rituals and customs.
 It depicts life of our early ancestors, their way of thinking, their customs. It is important to note that rule
of law was not in systematic manner in Vedas.
 Vedas refer to certain rights and duties, form of marriage, requirement of son, exclusion of women from
inheritance and partition.
 The approximate period of the Vedas is now accepted to be 4000-1000 B.C. During Vedic period the
society was divided into varna’s and life was divided into ashram.
 The following are the 4 Vedas-
i. Rig
ii. Yajur
iii. Sama
iv. Atharva
i. Rig Veda- It contains mainly mantras/hymns in praise of various vedic deities and prayers to them.
ii. Yajur Veda- There are 2 schools of Yajurveda. The Shukla Yajurveda and Krishna Yajurveda.
 Yajurveda consists mainly of procedural mantras used in Yajnas and it is in prose.
iii. Sama Veda- Samaveda consists of songs.
iv. Atharva Veda- Atharva veda comprises of mantras used for all worldly purposes such as healing, magic,
penances, fulfilment of wishes etc. and also adhyatma.
These Vedas contain only the fundamental principles of Hindu Law and law prevailing at present
amongst Hindus is not exactly the same as enjoined by the Vedas.

VEDANGAS:
(i) Kalpa
(ii) Vyakarna
(iii) Chhanda
(iv) Shiksha
(v) Jyotish
(vi) Nirukta
2. SMRITI
 It is the second important source of Hindu Law.
 The term ‘Smriti literally means ‘what has been remembered’.
 Smritis are collections of human mind put in consolidated form. (Based on memory of sages)
 The rules of law laid down in these Smritis are uncontroversial and their superiority is not doubted by anyone.
 The Smritis are divided into-
i. Primary Smritis
ii. Secondary Smritis

i. Dharma Sutras- (Also known as Early Smritis)

 The dharma sutras are mostly written in Prose form.
 The main dharma sutras are:
• Gautama,
• Baudhayana,
• Vashistha
 It was written during 800 to 200 B.C.
 It includes training manuals of sages for teaching students.
 It includes authors like Gautama, Baudhayana, Vashistha, Harita.
 It describes the duties of men in various relationship.

Gautama-

 Gautama belonged to the Sama Veda School.

 It deals with legal and religious matter.
 It also deals with inheritance, partition and stridhan.
Baudhayana-
 Baudhayana belonged to Yajurveda School.
 Baudhayana deals with numerous subjects, including marriage, sonship, adoption and inheritance.
Vashistha-
 Belonged to Rigveda School.
 He recognises only 6 forms of marriage and excludes from his reckoning the Paishacha and the Prajapatya.
 He permits the marriage of virgin widows.
 ii. Dharma Shastras- (Also Known as Later Smriti)
 The Smritis which are in ‘Shlokas’ are popularly known as Dharma Shastras.
 It is clarity on Dharma-Sutras and is lot more systematic and clear.
 Dharma Shastras are divided into 3 parts: -
1. AACHARA- It deals with the rules of religious observance. (How will you follow the religion)
2. VYAVAHARA-It deals with civil law. (What will be your civil conduct)
3. PRAYASCHITA- It deals with the penance or expiation. (What will be the punishment, how you
will overcome your sins)

 Early Smritis deals mainly Achara and Prayaschita, later Smritis mainly dealt Vyavahara.
 Of these Smritis Manu, Yajnavalkya and Narada are the most important.
1. Manu smriti-
 This is considered as highest authority in the entire country.
 It was composed in 200 B.C.
 It is divided into 12 chapters and contains 2694 Shlokas.

Manu smriti is a landmark in the legal history of India and is a great reservoir of
concepts of law, legal rules and institutions. It also gives a vivid idea of the customs of the then
society and social and religious observances of the people.

2. Yajnavalkya-
 It is based on Manu smriti but is more concise, synthesized and logical and deals with
procedural law in detail.
 The approximate date of the Yajnavalkya Smriti is the beginning of the Christian Era (0 B.C.)
 Belong to Mithila (Northern Bihar).
3. Narada Smriti-
 It was composed in 200 A.D.
 Belongs to Nepal.
 It is first legal code which is free from moral and religious feelings.
 The Narada Smriti deals with the law of procedure and pleadings in detail. It is divided into 2 parts. The
first part deals with judicature and the second part deals with 18 titles of law.

 These Smritis are the foundations of Hindu Law. They contain vivid exposition of all such laws which
are generally relevant for regulating the conduct of man in various areas in modern times also. The
rules incorporated in these Dharma shastras bear distinct reflections of the changing needs of society.
 3. COMMENTARIES AND DIGESTS:
 These are the third important source of Hindu Law.
 The rules of law enunciated in the Smritis were not always clear cut and they did not cover all situations.
Besides this, the Smritis were not uniform in matters and sometimes in the same Smriti there were
conflicting texts. Thus, the need arose for further analysis, systematisation and assimilation of law.
 The commentaries & digests were written to fulfil this need and to avoid confusion posed by smritis.

 These commentaries and digests were written about 700 A.D. to 1700 A.D.
 Commentaries on Manu Smriti were written by Medhatithi (Manubhashya) ,Govindraja (Manutika) and
Kulluka (Manvartha Muktavalli).
 Commentaries on Yajnavalkya were written by Visvarupa (Balakrida), Vijaneshwar (Mitakshara), Apararka
(Aparaditya) , Shulapani and Mitra Mishra.

 Of these Medhatithis’s commentary on Manu and Vijaneshwar’s on Yajnavalkya are most famous.
In Atma Ram Abhimanji vs Bajirao Janrao [(1935) 62 I.A. 139-143] the judicial committee of Privy
Council laid down that “ in the event of a conflict between the ancient text writers and the commentators,
the opinion of the latter must be accepted.”
(i) The Mitakshara-
 It is one of the most important commentary on Yajnavalkya Smriti.
 It is written by Vijaneshwar.
 Mitakshara literally means ‘a new word’.
 This was the paramount source of law in all over India except Bengal and Assam.
(ii) The Dayabhaga-
 Digests were written after commentaries.
 Most important digest Dayabhaga was written by Jimutvahan.
 Dayabhaga is supreme authority in Bengal and Assam.
 It mainly deals with inheritance and partition.
 Digest gather the scattered material in previous texts in a logical and precise way.
4. CUSTOMS & USAGES:

Customs:
 Customs and usages in general have played a vital role in the evolution of law, but in Hindu Law they have
special significance.

 Most of the Hindu Law is based on customs and practices followed by the people all across the country.

 Custom in its legal sense means ‘A rule which in a particular family, class or district has from long and
continuous usage obtained the force of law.’ [Sec.3 (a)]

Usages:

 A usage is a repetition of acts. It is a practice or rule of conduct establish in a particular community,

locality or trade by long usage and obligatory on those within its scope.
 Essentials of Custom (Requirements of a Valid Custom)

The following are the essentials of a valid custom:

1. Custom should be ancient-The custom must be ancient, immemorial and of long standing demonstrably to
establish that by common consent they have been accepted as law governing a particular family, caste or locality
as the case may be.

The word “Ancient” means that it belongs to antiquity. According to Section 3(a) of the Hindu Marriage
Act, 1955, it should be observed for a ‘long time’.

In point of time, it is difficult to prescribe any time limit for the establishment of a custom as a valid
source of law. It must be ‘immemorial’ which shows that it must be beyond the living human memory.

2. Custom should be continuous- Continuity of a custom is as essential as its antiquity. A custom in, absence of a
clear proof of its continuous observance without any variation it would not obtain legal existence.

 Discontinuity is fatal to the legal existence of custom.

3. Reasonableness- An unreasonable custom is void, although it cannot be said that custom is always founded on
reason. Thus, A custom must be reasonable.

4. It should be certain- It is necessary to prove that custom is certain. Mere vague allegations as to existence of custom
will not suffice.

5. Not opposed to morality and public policy- A custom should be neither immoral nor opposed to public policy. The
immorality of a custom is to be tested in context of consensus of the whole community not of a part of it.

6. Not opposed to express provisions of law- It is a necessary condition for a valid custom that it is not opposed to the
mandatory provisions of a law.

7. Onus-The burden of proving the existence of a custom lies on the person who alleges it.

8. Judicial Notice of a Custom- If a custom is so clearly established that no further evidence of its existence is
necessary, a court takes judicial notice thereof. Such custom will form a part of law without any further proof.
 Kinds of Custom

Under Hindu Law, customs may be classified in 3 categories:

(1) Local Customs

(2) Class Customs, and

(3) Family Customs.

1. Local Customs- Local customs denote certain practices and usages which are binding on the Hindu
inhabitants of a particular locality which may be whole country or a state, or a district.

2. Family Custom- Where certain practices and usages are established by long use in a particular family,
they are termed as family customs. Such customs may relate to modes of marriage ceremonies, succession
etc.

3. Class Customs- The term ‘class custom’ denotes certain practices and usages of a caste or of sect or of the
followers of a particular profession or occupation.
 II. MODERN SOURCES
 Modern Sources of Hindu Law includes Equity, Justice and Good Science, Precedent and Legislation.

 These sources existed even in the Shastric Hindu Law, though in a different form.

1. Equity, Justice and Good Science-

 The Equity, Justice and Good Science is the principle of English Law, which as a source of modern Hindu Law owes its
origin to the beginning of the British administration of justice in India.

 The Ancient Hindu Law had its own version of doctrine of Equity, Justice and Good Science.

 According to Gautama, “In cases for which no rule is given, that course must be followed of which at least ten persons
who are well instructed, skilled in reasoning and free from covetousness approve.”

 According to Brihaspati, “No decision should be made merely exclusively according to the letter of the Shastra for in a
decision devoid of Yukti (reason or equity), failure of justice occurs.”

 Yajnavalkya said that “when on a matter there were conflicting rules of law, the matter should be decided on the basis
of Nyaya (natural equity and justice).”
 The Charters of the several High Courts established by the British Government directed when the law was silent on a
matter, they should decide the cases in accordance with justice, equity and good conscience.

 Necessity was felt by the judges to adopt certain principles of fairness and justice in those case where law became too
much complicated on account of conflicting texts or complete absence of law or judicial precedents on certain aspects
of Hindu Law.

 Rules of justice, equity and good conscience were, thus made applicable in the administration of Hindu Law to cases
not governed by Smritis and the Commentaries.

Case- Gurunath vs Kamlabai (1951)

In this case the Supreme Court said that it is now well established that in the absence of any rule of Hindu
Law, the courts have authority to decide cases on the principles of justice, equity and good conscience unless
in doing so, the decision would be repugnant to, or inconsistent with, any doctrine or theory of Hindu Law.

In short, the courts have authority to decide the cases under equity, justice and good conscience where
there is absence of any rule of Hindu Law but it must not be inconsistent with any theory of Hindu Law.
2. Precedents or Judicial Decisions-
 Judicial decisions pronounced by the courts upon the various points have also developed as sources of law.

 According to Oxford Dictionary, “Precedent” means a previous instance or case, which is or may be taken as an example of
rule for subsequent cases.

 Precedent is known as the source of Hindu Law because all the important principles and rules are recorded in case laws.

 It is source of Hindu Law because all the doctrines, principles and rules can be modified by the process of judicial
interpretation.

 While interpreting the provisions of Hindu Law, sometimes the courts lay down new principles of law. Such new principles
are considered to be the sources of Hindu Law.

 The Privy Council during the British period and High Courts and Supreme Court in the modern period have laid down new
principles by way of interpretation. (Ex.: The principles relating to women’s estate, the doctrine of relation back and several
principles relating to joint family.)

 Thus, in the administration of justice, precedent has great importance. The law declared by the Supreme Court is binding upon
all other courts including High Courts. Similarly, the decisions of the High Court are binding on all the subordinate courts.
 3. Legislation-
 The term “Legislation” is derived from the Latin word ‘Legislatum’, which means “law making power”.

 Legislation is the modern source of Hindu Law and has a colossal importance, in the evolution of modern
Hindu Law.

 The legislations have the effect of reforming the law and in certain respects have superseded the textual
law.

 The Hindu Law has been reformed and modified by the legislature through various enactments in this
regard.

 The British government itself passed certain Acts with a view to bring some reforms in certain aspects of
law.

 In post-independence era legislation of far-reaching effects has revolutionised the law.

A. Legislations in Pre-Independence Era:

(i) The Caste Disabilities Removal Act, 1850

Under this Act, a person renouncing his religion or losing his caste is not deprived of his rights of
inheritance.

(ii) The Hindu Widow’s Remarriage Act, 1856

This Act legalised remarriage of Hindu widow and made provisions with respect to their rights and
disabilities on remarriage.

(iii) The Indian Succession Act, 1925

It modified the Hindu Law relating to wills.

(iv) The Child Marriage Restraint Act, 1929 (Sharda Act)

It provided restraints on child marriages.

(v) Inheritance (Removal of Disabilities) Act, 1928

(vi) The Hindu Women’s Right to Property Act, 1937 etc.

B. Legislations in Post-Independence Era:

(i) The Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1949

The Act permitted a Hindu wife to reside separately and to get maintenance from the husband in certain cases.

(ii) The Special Marriage Act,1954

It validated marriage between two persons who belonged to two different religions.

(iii) The Hindu Marriage Act, 1955

The Act has completely overhauled the law relating to marriage between Hindus including Jain, Buddhist & Sikh.

(iv) The Hindu Minority and Guardianship Act, 1956

It supplemented the existing law in the matter.

(v) The Hindu Succession Act, 1956

It provided for the equal rights of inheritance to Hindu females and granted absolute rights to them with respect to a property
acquired by them through any lawful means.

(vi) The Hindu Adoption and Maintenance Act, 1956

It changed the old law of adoption and maintenance and conferred the right on the Hindu female to adopt a child.
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