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Sources of Hindu Law



For thousands of years, people living in the Indian subcontinent have been leading their

lives by following the guidelines and concepts given in the Vedas. These guidelines have

evolved into rules followed by the people and enforced by the rulers and have thus become de facto law. In this modern time, the same laws have been retrofitted to suit present conditions and have been codified in the form of several acts of which the important ones are - Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act 1956, Hindu Minority and Guardianship Act 1956, and Hindu Succession Act 1956.


Application of Hindu Law


A precise definition of Hinduism does not exist. Hence, it is impossible to define fixed

criteria for determining who is a Hindu. So a negative definition of 'who is not a Hindu' is

used. Further, in this land, several religions have been born and they follow the same customs and practices. So it cannot be said that Hindu Law can be applied only to people who are Hindus by religion. Due to these reasons, in general, the following people are considered Hindu concerning applying Hindu Law.


1. Hindu by Religion - A person who is Hindu, Jain, Bauddha, or Sikh by religion.


2. Hindu by Birth - A person who is born to Hindu parents. If only one parent is a

Hindu, the person can be a Hindu if he/she has been raised as a Hindu.


3. Persons who are not Muslim, Christian, Jew, or Parsee by religion.


4. Persons who are not governed by any other religious law will be governed by

Hindu Law.


Case Laws:


1. In Shastri v Muldas SC AIR 1961, SC has held that various sub-sects of Hindus such

as Swaminarayan, Satsangis, and Arya Samaj are also Hindus by religion because they

follow the same basic concept of Hindu Philosophy. Converts and Reconverts are also

Hindus.


2. SC, in the case of Perumal v Poonuswami AIR 1971, has held that a

a person can be a Hindu if after expressing the intention of becoming a Hindu, follows

the customs of the caste, tribe, or community, and the community accepts him.


3. In Mohandas vs Dewaswan board AIR 1975, Kerala HC has held that a mere

declaration and actions are enough for becoming a Hindu.


4. In Sapna vs the state of Kerala, Kerala HC, the son of a Hindu father and Christian mother was held to be a Christian.


Origins 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 and ascetics have elaborated and refined the abstract concepts of life

explained in the Vedas.


Sources of Hindu Law


The phrase “source of law” has several connotations. It may be the authority which issues

rules of conduct which are recognized by Courts as binding. In this context, the "source of law‟

means „the maker of law‟. It may mean the social conditions which inspire the making of

law for the governance of the conditions. In this context, it means „cause of law‟. It may also

mean in its literal sense the material from which the rules and laws are known. In this sense, the expression means the „evidence of law‟ and it is in this sense that the expression "source of law‟ is accepted in Jurisprudence.


Sources of Hindu Law can be divided into two parts - Ancient and Modern.


1. Ancient Sources

Before the codification of Hindu Law, ancient literature was the only source of the

law. These sources can be divided into four categories:


Shruti


Shruti means "what is heard". 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 Atharva along with their Brahmanas. The Brahmanas are like

the appendices to the Vedas. Vedas primarily contain theories about sacrifices, rituals, and

customs. Some people believe that the 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, a requirement of a son, exclusion of women from

an inheritance, and partition but these are not very clear-cut laws.


During the Vedic period, 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. 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.


Smriti


Smriti means "what is remembered". With smritis, a systematic study and teaching of Vedas

started. Many sages, from time to time, have written down the concepts given in Vedas. So it

can be said that Smritis are a written memoir of the knowledge of the sages. Immediately

after the Vedic period, a need for the regulation of society arose. Thus, the study of Vedas and the incorporation of local culture and customs became important. It is believed that many smritis were composed in this period and some were reduced into writing, however, not all are known. The smritis can be divided into two - Early smritis (Dharmasutras) and Later smritis (Dharmashastras).


Dharmasutras


The Dharmasutras were written from 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 sometimes 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.


Gautama - He belonged to the Sam Veda school and deals exclusively with legal and religious

matters. He talks about inheritance, partition, and stridhan.


Baudhayan - He belonged to the Krishna Yajurveda 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 his 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 Prajapati

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 on Dharmasutras. However,

they were a lot more systematic and clear. They dealt with the subject matter in three parts


Aachara : This includes the theories of religious observances

Vyavahar : This includes civil law.

Prayaschitta : This deals with penance and expiation.


While early smritis dealt mainly with Aachara and Prayaschitta, later smritis mainly dealt

with Vyavahar. Out of many dharmashastras, three are the most important.


Manusmriti


This is the earliest and most important of all. It is not only defined the way of life in

India 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 the first human. This was probably done to increase its importance

due to divine origin. Manusmriti compiles all the laws that were scattered in smriti

sutras and gathas. It gives importance to the principle of 'danda' which forces

everybody to follow the law. Manusmriti was composed in 200 BC.


Yajnavalkya Smriti


Though written after Manusmriti, 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 holds

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 the position of women and Sudras. He was more liberal than Manu. This was composed in around 0 BC. Vijnaneshwar's commentary 'Mitakshara' on this smruti, is the most important legal treatise followed almost everywhere in India except in West Bengal and Orissa.


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.


Commentaries and Digest:


After 200 AD, most of the work was done only on the existing material given in Smritis. 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. As noted earlier, some of the

commentaries were manubhashya, manutika, and Jimutvahan's Dayabhag. The most

important digest is Mitakshara which is applicable in areas other than Bengal and Orissa.


Customs:


Most of the Hindu law is based on customs and practices followed by the people all across

the country. Even Smritis 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. A custom gets it to force due to the fact that due to its observation for a long time

in a locality, it has obtained the force of law.


2. Family Customs - These are the customs that are followed by a family for a long

time. These are applicable to families where ever they live. They can be more easily

abandoned than other customs.


3. Caste and Community Customs - These are the customs that are followed by a

particular caste or community. It is binding on the members of that community or

caste. Custom to marry brother's widow among the Jats is also of this type.


Modern sources of Hindu law:


1. 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. According to Gautama, in such

a 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'.


2. Precedent


The doctrine of stare decisis’ started in India under British rule. All cases are now

recorded and new cases are decided based on existing case laws. 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.


3. Legislation


In modern society, this is the only way to bring in new laws. The parliament, in accordance

with the needs of 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, Tamil Nadu later passed an act that

recognized these marriages.


References:

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