Sources of Hindu Law

Introduction:

It is believed that Hindu Law is a Divine Law and had been revealed by the God through the Vedas to the people. Hindu law is also considered to be the most ancient and prolific law in the world. The proof of its existence is in every phase and this is considered as about 6000 years old. Hindu is a common term; it denotes all those persons who profess Hindu Religion either by birth or by conversion to Hindu faith. It is both the instrument and the rhetoric by which most familiar, repeated, and quotidian of human acts are first placed in a system or structure larger than individual experience.[1]

The word ‘Hindu’ first appeared in the old Persian language which was derived from the Sanskrit word ‘Sindhu’ the historical local designation for the Indus River in the Northern-western part of Indian sub-continent.[2]

The best way to know the depth and deep knowledge of any system of law is to study thoroughly the sources of the law. Hindu law is made up of various text and scriptures, the growth of Hindu law was both natural and sometimes helped by the legislation that was enacted during the British period. Sources of Hindu law can be divided into ancient sources and modern sources.Hindu law has its own place in the history as well as in the modern era as; Shruti, Smriti, Digest and Commentaries, and Custom are the Ancient Sources of Hindu law whereas, Equity, justice and good conscience, Precedent, and Legislation are taken as Modern Sourcesof Hindu laws.

Hindu law can be understood as;           

  • Personal law– Laws that apply to a specific religion in common.
  • Divine law– Laws which has Divine origin because I is believed that Hindu law is derived from Vedas by God.
  • Stateless law– It is considered as a stateless law because it is described as a specific legal tradition.
  • Religious and indigenous law– The Hindus need not hold any specific religious beliefs, it is a law which developed through customary practices and historical records of the Brahmin.[3]

Ancient Sources of Hindu Law:

Shruti:

The word Shruti means; ‘what was heard’ and Hindu law is considered as revelation by God, which is contained in Shruti. Shruti is divided into Vedas, Brahmanas, Aranyak and Upanishad.

Veda is a synonym of Shruti, is derived from the root word; vid meaning to know, and Veda is based ontradition that they are source to all knowledge. The term Shruti stands for four Vedas i.e. the Rig, the Yajur, the Sama and the Atharva, along with their respective Brahmanas[1]. The Brahmanas are like appendices to the Vedas which were added later on. They deal with various ritual, ceremonies and sacrifices. It is Apaurusheya means it has no author.

Rig Veda is the first estimated collection of Hymns and it is divided into 10 Mandals and to be recited by the chief priest. Yajur Veda is the book of Sacrificial Prayers, in this book the method of performing Yagna is mentioned and it is only for Adhvaryus i.e. officiating priest. Sam Veda is the book of melodious prayers and has Rythemic compilation of hymns. And, Atharva Veda is containing a collection of spells and incantations, stories, prediction, apotropaic charms and some speculation hymns.

Aranyakasare the warriors/priests who are retired and went to forest for the knowledge of Philosophy and Mysticismand it reflect an explicit transition in the philosophy of life of man. And Upanishadis the knowledge imparted to disciples for spiritual progress. Upanishad derived from the word upa-(near), ni-(below) and shad-(sit) means to sit near the feet of spiritual God.Most of the Upanishads are in forms of dialogues between a master and a disciple.

Smriti:

The word Smriti means ‘What has been remembered’. The era of this is accepted to be 800BC to 600AD, this is also known as the golden era of Hindu law. Both Shruti and Smriti refer to the words and principles of the Almighty, which have been heard and remembered respectively, and handed down by the Sages from generation to generation. The exact number of Smritis (or Codes) is not definitely known, but the earliest one seems to be the Manu Smriti. The principal Smritis are those of Manu, Yajnavalkya and Narada.[2]

It is divided into two stages i.e. Early Smriti and Later Smriti, the former called Dharma sutras and the latter, the Dharmashatras.[3]

The approximate period of Dharma sutras is usually calculated to be between 800 BC to 200 AD. It is mostly written in prose but some of them are also found in both prose and verses. Dharma sutra means righteousness thread. This is found in close format and contains law interpersonal relation. Dharma sutras are famous for Gautam, Buddhyan, Apastamb, Harit, Vishnu and Vashishtha. It has deal with the duties of men in their various relations.

The later Smriti or Dharma shastras are mostly in metrical verses and considered to be between 200AD to 600 AD and this is in more explanatory nature than of Dharma sutras, they are relatively clearer and elaborated. Most of them are divided in three parts:

  • Achar (Rules of religious observance)
  • Vyavhar (Civil law)
  • Prayaschita (Penance)

Dharma Shastras are famous for Manu Smriti, Yagyavalkya Smriti, Narad Smriti etc. Manusmriti is also considered to the first law book written by Manu.

Digest and Commentaries:

Later sages started to interpret the verses of Manu Smriti. The commentaries and digest cover a period of one thousand year from 700 BC to 700 AD. Commentaries interpreters are called Tikakar(700AD to 1700AD). They interpret Smriti which is of broad topics. And Digest interpreters are called Smritikar, these interpretations are called Nibandha and are on Specific topics (1200AD onwards).

The need of Digests arose because the rules which were mentioned in the Smriti are not always clear and they were not cover all the situations. These needs were satisfied by the digest writers.

In the case of AtmaramAbhimanji v. BajiraoJanrao, 1935the High Court of Judicature at Bombay held that if there is a conflict between ancient text writer and commentators then the opinion of commentator (Tikakar) will prevail.

Various digests and commentaries have been written by various authors on the two most famous smritis that is manusmriti and yajnavalkya smriti namely.

On Manu smriti:

  1. Govind Raja has written Manuka.
  2. Kalluka Bhatta has written Manvaarthamuktavli.
  3. MedhaTithi has written Manubhasya.

On Yajnavalkya Smriti:

  1. Vigneshwara has written the famous commentary on Mitakshara.
  2. Arpaka has written Aparaditya.
  3. Visvarupa has written Balakrida.
  4. Mitra Mishra has written Virmitrodaya.

The digests were generally arranged by topic, referred to many different Dharmasastras for their contents. They would identify an idea or rule, add their comments, and then cite contents of different Dharma texts to support or explain their view.[4]

Customs:

Customs are the most significant and the oldest form of law making, customs mean the traditions, practices, activities, which have been following by the people from ages and overtime recognized as law. According to Holland, “custom is a step of generally followed conducts as a way is created over years by repeated walking similarly custom is created in accordance to the conduct of everyday life..[5]Customs are considered as the sources of law from earliest time and the Custom should be a valid Custom to be considered as the source of law. Custom is a long-established practice. Even smritis have given recognition to customs. Vedas and Smrities have incorporated most of the customs of their time. Subsequently, Digest and Commentaries exposition for Smrities and Shruties and these have modified the rules laid down by the Smrities in the light of the custom prevailing of that time.

According to section 3(a) of Hindu Marriage Act, 1955, this provide essential conditions of custom:

The expression ‘custom’ and ‘usage’ signify any rule which, having been continuously and uniformly observed for a long time, has got the force of law among Hindus in any local area, tribe, community, group or family; provided that the rule is certain and not unreasonable or opposed to public policy; and provided further that in case of a rule applicable only to a family it has not discontinued by the family.

With Deivanai Achi v R.M.Al.Ct.ChidambramChettiar, , a cult spectator issued an unfamiliar type of marriage (not a shastra ceremony) in 1925, in 1950 they held it that 25 years is not a sufficient time to recognise any ceremony as a custom. And in 1966 the court said that in the modern times no one is free to create a law on custom, lawmaking is a work of legislature.

With Collector of Madura v Muttu Ramalinga Sathupathy and Others, 1868 Madras High Court held that if there is a conflict between custom and the written text of Smriti, then custom will override Smriti.

Modern Source of Hindu Law:

Equity, Justice and Good Conscience:

Equity means fair and just dealing with any issue. Modern judicial systems always try to be unbiased and always been a fair system. Exact justice can only be delivered through equity and good conscience. A sense of ‘reasonableness’ must prevail where no law given. 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.[6]

As the Supreme Court has observed in Gurunath v. Kamalabai[7], in the absence of any clear Shastric text, the Courts have the authority to decide cases on principles of justice, equity and good conscience.

Precedent:

The hierarchy of Courts was established by the Britishers. The doctrine of precedent based on the principle of treating similar cases as alike was established, and therefore, Precedent means that decision of upper court is binding on all the subordinate courts. The court decides the cases and interpret some laws and they alter or modify wherever it needed. So, all the important rules and principles have been incorporated in case laws.

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

Firstly, 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 needed. Only with the help of decided cases, new judgement is given by the courts. And 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.

Legislation:

This is the important source of Hindu law. The legislation is an act of parliament that plays an important role in the formation of Hindu law. In a modern era, this is the only way to bring recent laws. The parliament, under the needs of the society, makes up recent laws.

Those legislations which were passes before independence of India is called Pre-independence Act and those which are passed after independence are Post-independence Act.

(a) Pre-independence Act-

– Caste Disabilities Removal Act, 1850- This act removed the disability regarding the inheritance in the respect of those persons who either abandoned their religion or were boycotted.

–   Hindu Widow Remarriage Act, 1856- Before this Act a Hindu widow couldn’t remarry under Hindu law, such marriages were started to be valid by this Act.

–  Child Marriage Restraint Act, 1929- Earlier the minimum age for marriage for girls was 14 years and for boys was 18 years. After the Act it became 18 for girls and 21 for boys. This Act restraint Child marriages and made such marriages punishable under the law.

(b) Post-independence Act-

–  Special Marriage Act, 1954

–  Hindu Marriage Act, 1955

–  Hindu Succession Act, 1956

–  Hindu Adoption and Maintenance Act,

–  Dowry Prohibition Act,

–  Child Marriage Restraint Amendment Act, 1978

–  Prohibition of Child Marriage Act, 1976,

And much more legislation came which brought drastic changes in Hindu law. Parliament always tries to remove the disabilities and defect in the laws and customs which are prevailing in the society. And most of the Hindu law, now, has been codified.

Conclusion:

It has been seen that Hindu law has been criticised for its orthodoxy, patriarchal and old character and does not bear a very modern outlook of society. The most important problem is that the exact meaning of a ‘Hindu’ is not given in any source yet.

According to scholars, there are many Smritis and texts which are yet to be identified and many differences of views and definitions have arisen and will arise. There are also many places where there is confusion over Hindu rule because many ancient texts are not clear. By examining the sources of Hindu law, we can understand that it has come across many phases as it is one of the oldest religions. And changes are also remarkable, because the society which was at the earliest time and the society which is now, have a huge difference. With time the society and the need of society changes, which brings new sources into existence.

Questions:

  1. How many Vedas are there in Hindu law?

Four Vedas are there according to Hindu Law. Rig Veda is the first estimated collection of Hymns and it is divided into 10 Mandals and to be recited by the chief priest. Yajur Veda is the book of Sacrificial Prayers, in this book the method of performing Yagna is mentioned and it is only for Adhvaryus i.e. officiating priest. Sam Veda is the book of melodious prayers and has Rythemic compilation of hymns. And, Atharva Veda is containing a collection of spells and incantations, stories, prediction, apotropaic charms and some speculation hymns.

  • Who are Aranyakas?

Aranyakasare the warriors/priests who are retired and went to forest for the knowledge of Philosophy and Mysticism and it reflect an explicit transition in the philosophy of life of man.

  • Whatare Dharma Sutras and Dharma Shastras and what is the difference between them?

Smriti is divided into two stages i.e. Early Smriti and Later Smriti, the former called Dharma sutras and the latter, the Dharma shastras. Dharma sutras are in close format and deal with the duties of the men in different relations, whereas Dharma shashtras are more explanatory in nature, clearer and elaborated than Dharma sutras.

  • Give some examples of Legislation as the source of Hindu Law?

Here are some examples of Post-independence Legiaslation:

–  Special Marriage Act, 1954

–  Hindu Marriage Act, 1955

–  Hindu Succession Act, 1956

–  Hindu Adoption and Maintenance Act,

–  Dowry Prohibition Act,

–  Child Marriage Restraint Amendment Act, 1978

–  Prohibition of Child Marriage Act, 1976,

  • What are the essential conditions under Hindu Marriage Act, 1955 for recognise a custom as ‘custom’?

According to section 3(a) of Hindu Marriage Act, 1955, this provide essential conditions of custom:

The expression ‘custom’ and ‘usage’ signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family; provided that the rule is certain and not unreasonable or opposed to public policy; and provided further that in case of a rule applicable only to a family it has not been discontinued by the family.

References:

[1]M.S.Ramarao, “Hindu Law”, “MSRLawbooks”,http://msrlawbooks.com/file/HINDU_LAW_2012.pdf visited on 12th June 2020

[2]Sources of Hindu Law- Ancient and Modern”,  “Indian Law News” https://indianlawnews.wordpress.com/2016/03/21/sources-of-hindu-law-ancient-and-modern/ visited on 12th June 2020

[3]Anita Koirala, “Hindu Concept of Law”, “SSRN”, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3589070#:~:text=Sources%20of%20Hindu%20law%20such,as%20modern%20sources%20of%20law. Visited on 12th June 2020

[1]Paras Diwan, “Modern Hindu Law”, 28 (12th ed. 2019)

[2] Mayank Shekhar, “Sources of Hindu law”, “Legal Bites”,  https://www.legalbites.in/sources-hindu-law/ visited on 12th June 2020

[3]Paras Diwan, “Modern Hindu Law”, 30 (12th ed. 2019)

[4]Anita Koirala, “Hindu Concept of Law”, “SSRN”, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3589070#:~:text=Sources%20of%20Hindu%20law%20such,as%20modern%20sources%20of%20law. Visited on 12th June 2020

[5] Mayank Shekhar, “Sources of Hindu law”, “Legal Bites”, https://www.legalbites.in/sources-hindu-law/ visited on 12th June 2020

[6]DevanshuKhettry, “Sources of Hindu law”, “Legal Service India”, http://www.legalservicesindia.com/article/329/Sources-of-Hindu-Law.html#:~:text=The%20Dayabhaga%20and%20Mitakshara%20are,on%20the%20Code%20of%20Yajnavalky. Visited on 12th June 2020

[7]A.I.R. 1955 S.C. 206

One Reply to “Sources of Hindu Law”

Leave a Reply

Your email address will not be published. Required fields are marked *