HINDU LAW

SOURCES OF HINDU LAW

• It is believed that Hindu law is a divine law. It was
revealed to the people by God through Vedas.
Various sages have elaborated and refined the
abstract concepts of life explained in the Vedas.
From thousands of years’ people living in the Indian
subcontinent have been leading their lives by
following the guidelines and concepts given in the
Vedas.
• India remains one of the most religiously
diverse nations in the world. Hindus, Muslims,
Jains, Buddhists, Sikhs, Jews, and Christians
have a home in India. The oldest and most
widely practiced religion in India, Hinduism,
has deep roots in the subcontinent.
• Hindu beliefs developed over the centuries
and include many influences, including
numerous sacred texts, thousands of deities,
and holy sites that continue to draw millions
of pilgrims. This Photo by Unknown Author is licensed under
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• Hindu law refers to the system of personal laws
(marriage, adoption, inheritance, etc.), traditionally
derived from Hindu texts and traditions, that shaped the
social practice of Hindu communities.
• In Vedic times, Hindu law was the legal system described
and imagined in Dharmaśāstra texts. Classical Hindu law,
brings the realm of legal practice together with the
scholastic tradition of Dharmaśāstra by defining Hindu
law as a usable label for myriad localized legal systems
of classical and medieval India that were influenced by
and in turn influenced the Dharmaśāstra tradition.
• Hindu law has a very old ancestry. It was given by Hindu
seers and sages who after their long penance and
meditation discovered certain rules of conduct which,
according them, are necessary for peaceful co-existence
of society.
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• The word ‘Hindu’ first appeared in the Old Persian
language which was derived from the Sanskrit word
Sindhu, the historic local designation for the Indus River
in the north-western part of the Indian subcontinent. A
Hindu is an adherent of Hinduism.
• In Sir Dinshah F.Mulla’s in ‘Principles of Hindu Law’, has
defined ‘Hindu law’ in the following words:
“Wherever the laws of India admit operation of a
personal law, the rights and obligations of a Hindu
are determined by Hindu law, i.e. his traditional law,
sometimes called the law of his religion, subject to
the exception that any part of that law may be
modified or abrogated by statute.”

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 The sources of Hindu law can
be classified under the
following two heads:
SOURCES OF
HINDU LAW: I.Ancient Sources

• Shruti
• Smriti
• Digests and Commentaries and
• Custom
 II. Modern
SOURCES OF
Sources
HINDU LAW: •Justice, equity
and good
conscience
•Precedent, and
•Legislation
ANCIENT
SOURCES:
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. It is
believed that the rishis and munis had reached the height of
spirituality where they were revealed the knowledge of Vedas.
Thus, shrutis include the four vedas - rig, yajur, sam, and athrava
along with their brahmanas. The brahmanas are like the apendices
to the Vedas.
• Vedas primarily contain theories about sacrifices, rituals, and
customs. Some people believe that Vedas contain no specific laws,
while some believe that the laws have to be inferred from the
complete text of the Vedas.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. Since vedas had a divine origin, the society was
governed as per the theories given in vedas and they are
considered to be the fundamental source of Hindu law. Shrutis
basically describe the life of the Vedic people.

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 SHRUTI
• There are four Vedas namely:

I. Rig Veda - containing hymns in Sanskrit to be recited by the chief priest

II. Yajurva Veda - containing formulas to be recited by the officiating priest
III. Sama Veda - containing verses to be chanted by seers
IV. Atharva Veda- containing a collection of spells and incantations, stories, predictions, apotropaic
charms and some speculative hymns

Each Veda has three parts:-

• Sanhita - which consists mainly of the hymns
• Brahmin - tells us our duties and means of performing them
• Upanishad - containing the essence of these duties
 • The shrutis include the Vedas along with their
components. The brahmanas are like the appendices
to the Vedas. Vedas primarily contain theories about
sacrifices, rituals, and customs.
SHRUTI
• Some people believe that Vedas contain no specific
laws, while some believe that the laws have to be
inferred from the complete text of the Vedas.
• Vedas do refer to certain rights and duties, forms of
marriage, requirement of a son, exclusion of women
from inheritance, and partition but these are not very
clearcut laws. During the vedic period, the society
was divided into varns and life was divided into
ashramas. The concept of karma came into existence
during this time. A person will get rewarded as per his
karma. He can attain salvation through "knowledge".
During this period the varna system became quite
strong.
SHRUTI • The vedic period is assumed to be between
4000 to 1000 BC. During this time, several
pre-smriti sutras and gathas were
composed. However, not much is known
about them today. It is believed that
various rishis and munis incorporated local
customs into Dharma and thus multiple
"shakhas" came into existence.
 • 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
SMRITI 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.
• 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, Yama, Katyayana, Brihaspati, Parashar, Vyas,
Shankh, Daksha, Gautama, Shatatapa, Vasishtha, etc.
 • The rules laid down in Smritis can be divided into
three categories viz.
i. Achar - relating to morality,
SMRITI
ii. Vyavahar - signifying procedural and substantive
rules which the King or the State applied for
settling disputes in the adjudication of justice
iii. Prayaschit - signifying the penal provision for
commission of a wrong
• Many sages, from time to time, have written down
the concepts given in Vedas. So it can be said that
Smrutis are a written memoir of the knowledge of
the sages. Immediately after the Vedic period, a
need for the regulation of the society arose. Thus,
the study of vedas and the incorporation of local
culture and customs became important. It is believed
that many smrutis were composed in this period and
some were reduced into writing, however, not all are
known.
SMRITI

The smiritis can be divided into two

–
I. Early smritis
(Dharmasutras) and
II. Later smritis
(Dharmashastras).
 EARLY SMRITIS (DHARMASUTRAS)
• The Dharmansutras were written during 800 to 200 BC. They were mostly written in prose form but also contain
verses. It is clear that they were meant to be training manuals of sages for teaching students. They incorporate the
teachings of Vedas with local customs. They generally bear the names of their authors and sometime also indicate
the shakhas to which they belong. Some of the important sages whose dharmasutras are known are: Gautama,
Baudhayan, Apastamba, Harita, Vashistha, and Vishnu.
• They explain the duties of men in various relationship. They do not pretend to be anything other than the work of
mortals based on the teachings of Vedas, and the legal decisions given by those who were acquainted with Vedas
and local customs.
• Gautama - He belonged to Samveda school and deals exclusively with legal and religious matter. He talks about
inheritance, partition, and stridhan.
• Baudhayan - He belonged to the Krishna Yajurved school and was probably from Andhra Pradesh. He talks about
marriage, sonship, and inheritance. He also refers to various customs of his region such as marriage to maternal
uncle's daughter.
• Apastamba - His sutra is most preserved. He also belonged to Krishna Yajurveda school from Andhra Pradesh. His
language is very clear and forceful. He rejected prajapatya marriage.
• Vashistha - He was from North India and followed the Rigveda school. He recognized remarriage of virgin widows.
 • Dharmashastras: Dharmashastras were mostly in metrical
verses and were based of Dharmasutras. However, they were a
lot more systematic and clear. They dealt with the subject
DHARMASHASTRAS matter in three parts. While early smrutis deal mainly with
: Aachara and Prayaschitta, later smrutis mainly dealt with
Vyavahar. Out of many dharmashastras, three are most
important smrities:-
• Manusmriti: This is the earliest and most important of all. It is
not only defined the way of life in India but is also well known
in Java, Bali, and Sumatra. The name of the real author is not
known because the author has written it under the mythical
name of Manu, who is considered to the first human. This was
probably done to increase its importance due to divine origin.
Manusmriti compiles all the laws that were scattered in pre-
smriti sutras and gathas. He was a brahman protagonist and
was particularly harsh on women and sudras. He holds local
customs to be most important. He directs the king to obey the
customs but tries to cloak the king with divinity. Manusmriti
was composed in 200 BC.
DHARMASHASTRAS:

• Yajnavalkya Smriti: Though written after Manusmruti, this is a very important smriti. Its
language is very direct and clear. It is also a lot more logical. He also gives a lot of
importance to customs but hold the king to be below the law. He considers law to be the king
of kings and the king to be only an enforcer of the law. He did not deal much with religion and
morality but mostly with civil law. It includes most of the points given in Manusmriti but also
differs on many points such as position of women and sudras. He was more liberal than
Manu.
• Narada Smriti: Narada was from Nepal and this smriti is well preserved and its complete
text is available. This is the only smriti that does not deal with religion and morality at all but
concentrates only on civil law. This is very logical and precise. In general, it is based on
Manusmriti and Yajnavalkya smriti but differ on many points due to changes in social
structure. He also gives a lot of importance to customs. This was composed in 200 AD.
• 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 DIGESTS AND
century to 1800 A.D. In the first part of the period most of COMMENTARIES
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.
• 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
DIGESTS AND COMMENTARIES-

• As noted ealier, some of the commentaries were, manubhashya, manutika, and mitakshara. While
the most important digest is Jimutvahan's Dayabhag that is applicable in the Bengal and Orissa area.
• 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.
Mitakshara literally means 'New Word' and is paramount source of law in all of India. It is also
considered important in Bengal and orissa where it relents only where it differs from Dayabhaga. It is
a very exhaustive treaties of law and incorporates and irons out contradicts existing in smritis.
• The basic objective of these texts was to gather the scattered material available in preceeding texts
and present a unified view for the benefit of the society. Thus, digests were very logical and to the
point in their approach. Various digests have been composed from 700 to 1700 AD.
 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. Custom is regarded as the important source of
Hindu law. From the earliest period custom
(‘achara’) is regarded as the highest ‘dharma’.
CUSTOM 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.

Most of the Hindu law is based on customs and

practices followed by the people all across the
country. Even smrutis have given importance to
customs. They have held customs as transcendent
law and have advised the Kings to give decisions
based on customs after due religious consideration.
 • Customs are of four types:
1. Local Customs- These are the customs that are followed in
a given geographical area. In the case of Subbane vs Nawab,
Privy Council observed that a custom gets it force due to the fact
KINDS OF that due to its observation for a long time in a locality, it has
CUSTOMS obtained the force of law.
2. Family Customs- These are the customs that are followed
by a family from a long time. These are applicable to families
where ever they live. They can be more easily abandoned that
other customs. In the case of Soorendranath vs Heeramonie
and Bikal vs Manjura, Privy Council observed that customs
followed by a family have long been recognized as Hindu law.
3. Caste and Community Customs- These are the customs
that are followed by a particular cast or community. It is binding
on the members of that community or caste. By far, this is one of
the most important source of laws. For example, most of the law
in Punjab belongs to this type. Custom to marry brother's widow
among certain community is also of this type.
4. Guild Customs - These are the customs that are followed
by traders.
 1. Ancient ;- Ideally, a custom is valid if it has been followed from
hundreds of years. There is no definition of ancientness, however, 40yrs
has been determined to be an ancient enough. A custom cannot come into
existence by agreement. It has to be existing from long before. Thus, a new
custom cannot be recognized. Therefore, a new form of Hindu marriage was
not recognized in Tamil Nadu. In the case of Rajothi vs Selliah, a Self-
Respecter’s Cult started a movement under which traditional ceremonies
were substituted with simple ceremonies for marriage that did not involve
Shastric rites. HC held that in modern times, no one is free to create a law
or custom, since that is a function of legislature.

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

3. Certain: The custom should be very clear in terms of what it entails.

Any amount of vagueness will cause confusion and thus the custom will be
invalid. The one alleging a custom must prove exactly what it is.
 Reasonable: There must be some reasonableness and fairness in
the custom. Though what is reasonable depends on the current time
and social values.
5. Not against morality: It should not be morally wrong or
REQUIREMENTS
repugnant. For example, a custom to marry one's granddaughter has
FOR A VALID been held invalid. In the case of Chitty vs. Chitty 1894, a custom
CUSTOM: that permits divorce by mutual consent and by payment of expenses
of marriage by one party to another was held to be not immoral. In
the case of Gopikrishna vs. Mst Jagoo 1936 a custom that
dissolves the marriage and permits a wife to remarry upon
abandonment and desertion of husband was held to be not immoral.
6. Not against public policy: If a custom is against the general
good of the society, it is held invalid. For example, adoption of girl
child by nautch girls has been held invalid. In the case of Mathur vs
Esa, a custom among dancing women permitting them to adopt one
or more girls was held to be void because it was against public
policy.
7. Not against any law: If a custom is against any statutory law, it
is invalid. Codification of Hindu law has abrogated most of the
customs except the ones that are expressly saved. In the case of
Prakash vs Parmeshwari, it was held that law mean statutory law.
PROOF OF CUSTOM:
The burden of proving a custom is on the person who alleges it. Usually,
customs are proved by instances. In the case of Prakash vs
Parmeshwari, it was held that one instance does not prove a custom.
However, in the case of Ujagar vs Jeo, it was held that if a custom has
been brought to notice of the court repeated, no further proof is required.
Existence of a custom can also be proved through documentary evidence
such as in Riwaz-i-am. Several treaties exist that detail customary laws of
Punjab.
• The term custom and usage is commonly used in
commercial law, but "custom" and "usage" can be
distinguished. A usage is a repetition of acts whereas custom
is the law or general rule that arises from such repetition.
• A usage may exist without a custom, but a custom cannot
USAGE
arise without a usage accompanying it or preceding it. AND
Usage derives its authority from the assent of the parties to CUSTOM:
a transaction and is applicable only to consensual
arrangements. Custom derives its authority from its
adoption into the law and is binding regardless of any acts of
assent by the parties. In modern law, however, the two
principles are often merged into one by the courts.
• Hindu law has been greatly influenced by the British rule.
While it might seem that the British brought with them the
modern concepts of equity and justice, these concepts
existed even in dharamashastras albeit in a different form.
Narada and Katyayana have mentioned the importance of
dharma (righteousness) in delivering justice
MODERN SOURCE
EQUITY, JUSTICE, AND GOOD
CONSCIENCE:
• Equity means fairness in dealing. Modern judicial systems greatly rely on being
impartial. True justice can only be delivered through equity and good conscience.
In a situation where no rule is given, a sense of 'reasonableness' must prevail.
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 fair play and propriety.
MODERN SOURCE OF HINDU LAW

• 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.
• According to Gautama, in such situation, the decision should be given that is
acceptable to at least ten people who are knowledgeable in shastras.
Yagyavalkya has said that where ever there are conflicting rules, the decision
must be based on 'Nyaya'. This principle has been followed by the Privy
Council while deciding cases.
PRECEDENT:

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
LEGISLATION:

• 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.
• 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.
LEGISLATION:

• Hindu Code is divided into 4 parts:-

1. The Hindu Marriage Act, 1955,
2. The Hindu Adoptions and Maintenance Act, 1956,
3. The Hindu Succession Act, 1956,
4. The Hindu Minority and Guardianship Act, 1956, etc.
• 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.
Also, most of the Hindu laws have now been codified as mentioned in the beginning.