In ancient times, the word Law is equal to Dharma, so the source of Dharma and Law were the same.
- According to Manu there are four sources of Dharma (Law), namely the Vedas, the Smritis, Sadachara and what is agreeable to one’s conscience.
- According to Yajnavalkya there are fourteen sources of law which includes four Vedas, Six Vedangas, Dharam Shastras, Nyaya, Puran and Mimansa.
The Study of sources of Hindu Law is the study of various phases of its development which gave it new drives and vigour and enabled it to confirm to the changing needs.
Source of Hindu Law
There are four sources covered under this category, which are as under-
- 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.
- It consists of the Four Vedas and Eighteen Upnishads, which dealing with the religious Rites that contain the meaning of attending true knowledge and Moksh as solution.
Four Vedas are- Rig Veda, Yajur Veda Sama Veda and Atharva Veda.
In Vedas we may find the life of our early ancestors, their way of life, their way of thinking, their customs, their thoughts, but Vedas do not deal with rules of law in any systematic manner. Whatever rules of law exist, they have to be deduced from the material spread here and there.
- The word Smritis are the Utterances and precepts of the almighty, which literally means “what has been remembered”.
- The theory of Smritis are based on the memory of sages (ऋषि ) who were the repositories of the sacred Revelations (रहस्योद्घाटन).
- The Smritis may be divided into earlier Smrities and the later Smrities.
- The earlier Smritis are called as Dharamasutras. It were written in prose and the later Smritis as Dharamshastras. It were written in poetry.
- The main Author of the Dharamasutras are Gautama, Baudhayana, Apastamba, Vasistha Harita and vishnu. The most eminent Author of Dharamashastras are Manu, Narada, yajnyavalkaya, katyayana, Birhaspati and Vyasa.
- The main Smrities are Manu, Yajnavalkya and Narand.
Commentaries and Digest
- The rules enunciated in the Smritis were not clear and they did not cover all the situations.
- The provisions of Smritis was conflicting and incompleteness, and the desirability or necessity of so Moulding and Modifying their Injunctions, a clear and systematic exposition of rules of law, legal concept and principles were necessary. Thus the commentaries and digest were written to fulfill this need and to avoid confusion posted by Smritis.
- These commentaries and digests were written about 700 A.D. to 1700 A.D.
- The Commentaries are now considered to be more authoritative than the original texts themselves.
- Custom is one of the most important Source of Hindu Law. A custom may be defined as ‘a habitual course of conduct generally observed in our community’.
- In Sanskrit language it is called Sadachara which means ‘the approved uses‘.
- It is thus a rule which, as a result of a very long usages has obtained the force of law in a particular community or in a particular District.
- Custom modify and supplement the written Law.
Collector of Madura Vs. Mottoo Ramlinga, 1868
The Privy Council laid down that a clear proof of usage will out weigh the written text of Hindu law.
- As per Section 3 of the Hindu Marriage Act, “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 certain and not unreasonable and opposed to public policy and provided further that in the case of a rule applicable only to a family it has not been discontinued by the family.
Kinds of Customs
There are Following three kinds of custom-
- Local custom prevails in a particular locality that is in a geographical area like a District, Town or Village or all building on all the inhabitants of that locality.
- It denotes certain practices and usages of a caste or of sect or of the followers of a particular profession or occupation.
- Certain practice and usages established by long use in a particular family, are called family customs. they relate to modes of marriage ceremonies, succession, etc., Which are binding only on the members of that family.
Essentials of valid custom
- Custom must be ancient
- It must be certain and uniform
- It must be continuous
- It must also be reasonable
- It must not be opposed to public policy
- It must not be opposed to any law.
So, a Custom cannot be enlarged by parity of reasoning, since it is the usage, and not the reason underlying the custom, that makes the law. A custom should be established before the court by means of clear and reliable evidence, and a court takes Judicial notice of a custom if such custom is so clearly established.
Under this category there are three types of sources as under-
Equity, Justice and Good Conscience
- Equity, Justice and good conscience as a source of modern Hindu law owes its origin to the beginning of the British administration of justice in India.
- In a particular topic, no express provisions of law are in existence, it should be decided according to the natural justice, i.e., equity, justice and good conscience.
- In Other words, what should be most Fair and equitable in the opinion of the Judge would be done in a particular case.
Gurunath Vs. Kamlabai, 1951 SC
The Hon’ble Supreme Court held that it is now 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.
Precedents/ Judicial Decisions
- ‘Judicial Decisions‘ are considered as the most fertile and practical source of Hindu law.
- It is contribution of British Administration. This source includes the decision of the Privy Council, the supreme court as well as of the High Courts and Chief courts of India.
- In deciding a particular cases the judges enumerate what that law is. These decisions are regarded as precedents for future cases.
- A Precedent is not merely an evidence of law but a source for it and the courts of law are bound to follow the precedents.
Shri Krishna Singh VS Mathura Ahir 1981 SC
The Hon’ble Supreme Court stated that “In applying Hindu law, the judge should not introduce his own concepts of modern times, but should enforce the law as derived from recognized and authoritative sources of Hindu law i.e. Smritis and Commentaries as interpreted in the judgments of the courts”.
- Legislation is the Modern Source of Hindu law and has a Colossal (अति विशाल) importance in the evolution and development of Hindu 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 and also present Hindu law enacted amended by the Legislature.
- There are four major enactments of codified Hindu law-
- Hindu Marriage Act 1955 (18th May 1955)
- Hindu Succession Act, 1956 (17th June 1956)
- Hindu Minority & Guardianship Act,1956 (25th August 1956)
- Hindu Adoption and Maintenance Act, 1956 (21th December 1956).
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