SESSION:- 2016-17

SUBJECT:- “Hindu Law”

TOPIC:- “Sources of Hindu Law”

SUBMITTED TO: SUBMITTED BY:Miss. Shaila Mehmood Mohd AshrafAsst. Prof. Department of Law 14B.A.LL.B.48 Aligarh Muslim University GI-4667 Murshidabad Centre. B.A.LL.B. Vth Semester

Aligarh Muslim UniversityMurshidabad Centre

TOPIC:- Sources of Hindu Law ( Ancient & Modern)

1. Introduction

2. Ancient Sources 2.1 The shrutis 2.2 Smiritis 2.3 Commentries & Diegest 3. Modern Sources 3.1 Judicial Decisions 3.2 Legislation 3.3 Equity Justice & good Conscience 3.4 Customs4. Conclusion Bibliography

Contents

HinduLaw, “An Introduction.”

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. 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 times, 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.

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 stages and ascetics have elaborated and refined the abstract concepts of life explained in the Vedas. (1)

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(1) Mulla, principle of hindu law, vol-i, p. no. 67 ed. Desai, S.A, 19th ed., Lexis nexis butterworths, 2005

Sources of Hindu Law

 The Hindu Law is credited to be the most ancient law system which is approximately 6000 years old. The sources of Hindu Law can be kept under two headings:-

• 1. Ancient or original sources.• 2. Modern Sources. (2)

• ------------------------------------------------------------------------------------

• (2) Diwan,p., Modern hindu law, p. no. 37 17th ed., Allahabad law agency, 2006

 ANCIENT SOURCES :- According to Manu there are four sources of Hindu Law as per following details, in addition to these four there was also that what is agreeable to one’s conscience:-

1. Shruti       2. Smriti       3. Digest and Commentaries 4. Custom and Usages.

MODERN SOURCES: - Following are the modern sources of Hindu Law :- 

1. Equity, justice and good conscience.

2. Precedents

3. Legislation.

Sources of Hindu

LawAncient Sources

Shruti

Smiriti

Diegest &

Commentrie

s

Custom &

Usage

Modern Sources

Equity, Justice & Good Conscie

nce

Precedent

Legislation

1. SHRUTI :-  The name “shruti” is derived from the word  “sru”  which means to hear and it signifies what is heard. Shruties are considered as the primary and paramount source of Hindu Law. The shruti consist of the four Vedas and Upanishads dealing with the religious rites that contain the meaning of attaining true knowledge and moksh as salvation. The Vedas are ‘Rig’, ‘Yajur’, ‘Sam’, ‘Atharva’. (3)

Dr. P.V. Kanne, in his book, “History of Dharamshashtra” said that, “If we want to see religion(Law) in a proper way, then we should analysis Shruti and Smritis.”

----------------------------------------(3) Dr. R.K. Agarwal, Hindu Law, p. no. 16, 24th Edition 2015, Central law Agency, Allahabad.

2. SMRITIS :-Means ,”What was remembered” thus Smritis were known as golden era, because it is era when well organised dependant on the remembrance of saints and the era of creation of and serial wise development of Hindu Law started. It is the second Important source of Hindu Law. It is of two types first is prose style and the other is of poetry style. (4)     Smritis are divided into two :i) Dharam Surtra (prose style) :- Dharam sutra are famous of Gautam, Buddhyan, Apastamb, Harit, Vishnu and Vasith.

ii) Dharam Shashtra (poetry style) :- Are famous for Manu Smriti, Yagyavalkya Smriti, Narad Smriti etc. Manu smritis made of 12 chapters and 2694 shlokas. Yagyavalkya smriti is divided into 3 parts  and is extremely clear, brief and organised. Narad Smriti being the last smiriti is such first legal code which mentions subjects related to Judicial process, courts and Judiciary.-----------------------------------------------------------------------------------(4) Supra note (3) p. no 17.

3.   Digest and Commentaries :- These are the third important source of Hindu Law. The commentaries through professing and purporting the rest on the smrities explains modified and enlarged tradition recorded there to bring them into harmony and accordingly to prevent practices of the day. Case : Atmarao v/s Bajirao (5) It was held that Digest writers and commenter’s has given the statements of Smritis  which can fulfil the present requirements & ahead from smrities.

The period of the commentaries and digest is between 700 AD -1700Ad. The last commentary was Vijayanti written by Nand Pandit. It is a commentary on Vishnu Dharmasastra. The principle commentaries are: i) Dayabhaga by Jimutwahana, ii) Mitakshara, a commentary on Yajnawalkya Smiriti by Vijneshwara, iii) Vivada Ratnakara by Chandeshwara, iv) Smiriti Chandrika by Devan Bhatta, v) Vyavahara Mayukha, by Nilkantha.

-------------------------------------------------------(5) 1938, 62 IA 139.

Mitkshara, is one of the most important commentary on Yajnawlkya Smiriti and is held in high steem throughout India. It owes its authorship to Vijneshwara. It is the prevailing authority throughout India except Bengal.

Dayabhaga, is the chief commentary in Bengal. It was written by Jimutvahana. It mainly deals with inheritance and partition.

Dr. Jolly, says that, “it is one of the most striking composition in the whole department of Indian Jurisprudence.”

4. CUSTOMS AND USAGES:- These are considered an important source of Hindu Law. Narad Smriti says that, “Customs are powerful” they are above the religion. D.F.Mulla says that, “ Among the three sources of Hindu Law Custom and Usage are the one.”According to Holland, “ Custom is a step of generally followed conducts As  a way is created over gress by repeated walking similarly custom is created in accordance to the conduct of everyday life.” (6)

Case: Collector of Madurai v/s Mottaramlingam, (7)

: Privy Council held that, “in Hindu Law the clear proof of customs shall be more relevant then the basic epics of law.”

Case: Harparsad v/s Shiv Daya –(1816): It was said that, “the custom is  family or particular class or area owing a long tradition.”

------------------------------------------------------------(6) Supra note (1), p. no. 75.(7) {(1868) 12 MIA 397}

Although codified law has given place to custom, but it is limited. Codified Hindu Law recognises custom only when it has been expressly given a place. Custom under Hindu Marriage Act 1955 can be applied over two topics:i) Any Marriage may be solicited by the customary tradition ofthe parties.ii) Divorce can be obtained br prevailing custom or usage and a married male or female above the age of 15 years can be adopted as customary rules.

The Judicial Committee explained that, “Custom is a rule which in a particular family or in particular district has from long usage, obtained the force of law. (8)

Hindu sages have recognized good custom binding on the Hindu. Manu says, “ In memorial is transcendent Law.”---------------------------------------------------(8)  http://indianhindulaw.googlepages.com/sourcesofhindulaw last visited on 15/11/2016 at 7:05 p.m.

Custom is divided in three parts:-

Local custom, Such custom is belongs to some particular locality, or district and they are binding on the inhabitants of such place.

Class custom, Such custom are of a caste, or of a sect, or of the followers of a particular profession or occupation, such as, agriculture, trade, mechanical art and the like.

Family custom, Such custom relates to a particular family, particularly concerning succession to an impartible Raj, or succession to Maths, or religious foundations.  

5. EQUITY, JUSTICE AND GOOD CONSCIENCE:- In India the origin of equity is traced the Hindu period when jurists explained the old law and gave new rules of interpretation and equitable solutions in cases of conflict between the rules of various law. In case of a conflict between the rules of Smrities that should be followed which is based on reasons, justice and principles of equity. 

        In view of the above observations and its practical application it will not be incorrect to mention equity justice and good conscience as the next source of Hindu Law. Actually Britishers not only established a judicial system in India but also facilitated though the High Court charters that wherever there is lack of lawful rules, their decision should be on the principles of equity, justice and good conscience.

Case : Gurmukh Singh v/s Kamla Bai (9) : It was held that, “ Where there is lack of rules of Hindu Law over any subject, there court should pronounce their decision on the basis of principle of equity, justice and good conscience.”

  -------------------------------------------------------------(9) {(1951) S.C.R. 1135}

6. PRECEDENT:-  It is an important source of law. It means the Judicial decision over any disputed matter which shall be guideline for the disposition of future similar disputed matters. (10)

Udhao v. Beshar, (11)

“A precedent is not merely an evidence of a law but also a source of law and the courts are bound to follow the precedents.” Generally the decision of Supreme Court, High Court, and Privy Council have the effect of precedent over the subordinate court.              The importance of Precedent as a source of Hindu Law can be understood from the example that if we have to look into the importance of custom and Usages in Hindu Law, then we shall have to analyse the case : Collector of Madurai v/s Mottaramlingam, (12) it is pertinent to mention here that there are certain rules for the application of precedent like :- 

-----------------------------------------------------------------(10). Supra note (3) p. 21. (11). ( AIR, 1946 Nag. 203.)(12). (1868, 12 MIA 397),

i) The decision of Supreme Court is binding over all the subordinate courts.ii) The decision of Supreme Court is binding to its subordinate courts.iii) The decision of Privy Council is binding over all High Courts provided that it has not be over ruled by the Supreme Court.

7. LEGISLATION:- The last important source of Hindu Law is the legislation. Their source has originated after the establishment of English State in India, when English rulers started enacting several laws.  Laws were enacted in accordance to the state, time and circumstances, there were amended too. Legislation has become at present potential source of Law in India. Today most of the subjects of Hindu Law has been codified. (13)

---------------------------------------------------------------------(13) Dr. U.P.D. Kesari, Modern Hindu Law, p. no. 25, 10th Edition 2015, Central law publications, Allahabad.

Some of the important Acts in this respect are:-

01. Hindu Widow Remarriage Act 1856.02. Hindu Disposition of Property Act, 1916. 03. Hindu laws of Inheritance (Amendment) Act, 191904. Hindu Women’s right to Property Act. 1930.05. Hindu Women’s right to separate Residence and Maintenance Act 1946.06. Hindu Succession Act 195607. Hindu Marriage Act. 1955 08. Hindu Adoption & Maintenance Act. 195609. Hindu Minority and Guardianship Act 1956.10. Hindu succession (Amendment) Act, 2005.

In the arena of personal laws hindu law play a very vital role and it govern the persons who comes with in the perview of hindu.

In ancient period Hindu law had only its divine nature i.e., law of the God, but in now days its nature has totally changed.

Its devine nature has been seized by its interpretation, enacting laws and also by the judicial precedents.

By the interpretation of the ancient sources of Hindu law, its scope has become very wide.

Modern sources of Hindu law has a colossal importance, in the evolution of modern Hindu law.

CONCLUSION

**Dr. R.K. Agarwal, Hindu Law, 24th Edition 2015, Central law Agency, Allahabad. ** Dr. U.P.D. Kesari, Modern Hindu Law, 10th Edition 2015, Central law publications, Allahabad. ** Diwan,p., Modern hindu law, 17th ed., Allahabad law agency, 2006

** Mulla, principle of hindu law, vol-i, ed. Desai, S.A, 19th ed., Lexis nexis butterworths, 2005.

** http://indianhindulaw.googlepages.com/sourcesofhindulaw last visited on 15/11/2016 at 7:05 p.m. **http://en.wikipedia.org/wiki/hindu_law  last visited on 17/11/2016 at 6:50 p.m.

Bibliography