Sources of Hindu Law

 

 

Q. 11. Enumerate the various sources of Hindu law pointing out the relative importance of each.

Or

What are the main sources of Hindu Law? Discuss their importance.

Or

Discuss the sources of Hindu Law. Critically examine their relative importance also.

 

Ans. Sources of Hindu Law. Sources of Hindu Law are the following:

1. Vedas (Shruti).

2. Smritis,

3. Commentaries and Digests,

4. Customs,

5. Legislations, and

6. Precedents or Judicial decisions.

 

1. Vedas (Shruti)

 

Hindu law, according to the Hindu belief, is divine revelation in the utterances of the creator. 'Shruti' is the synonym used for 'Veda', and it means 'what was heard' from God. Since Vedas are said to contain the utterances of God, they are considered to be the fundamental or paramount source of law.

Sruti is the original and primary source of Hindu system of law and one of divine origin. 'Sruti' literally means that which was heard; the name (sruti) is derived from the root 'sru (to hear) and signifies "what is heard". Manu has defined 'sruti' thus:

 

Vedas belong to the class of 'Sruti'. Veda is believed to contain the very word of Deity (God) revealed to mankind through holy sages and are more a code of religion and religious rites and rituals than a code of law.

 

"By Sruti or what was heard from above, is meant the vedas".

Vedas are four in number: Rigveda, Yajurveda, Samaveda and Atharvaveda.

 

Manu says "The whole Veda is the first and paramount source of Hindu Law"-"The whole Veda" here means that not only the direct texts themselves are authoritative but also those rules which are deducible from them.

 

Vedas are in theory the paramount source of Hindu law. But they do not contain positive precepts (vidhi) on matters of dharma in a connected form. They only contain incidental references to various topics that fall under the domain of dharmashastra as conceived in latter times. Some examples are: marriage, adoption, inheritance and partition.

The Taittiriya-Samhita mentions the story of Atri who gave his only son in adoption to another rishi Aurva. The law deduced from this story is that the adoption of the only son is valid. In Balusu v. Balusu, (1899) 26 Indian Appeals 113, the Privy Council, with reference to the story of Atri Aurva, decided that the adoption of the only son is valid.

 

2. Smritis

 

Rules, as distinct from instances of conduct, are, for the first time, embodied in the Smritis. Smritis means "what was remembered" and is believed to contain the precepts of God, but not in the language they had been delivered. The language is of human origin, but the rules are divine. The authors do not arrogate to themselves the position of legislators, but profess to compile the traditions handed down to them by those to whom the divine commands had been communicated.

 

Smritis are the principal sources of lawyer's law, but they also contain matters other than positive law. The Smritis of Manu and Yajnavalkya deal with religious rites, positive law, penance true knowledge and liberation. Some of them deal with positive law alone, such as, Smritis of Narada, Brihaspati and Katyayana. Some Smritis like Parashar-Smriti deal very little with positive law. Yajnavalkya Smriti gives a list of twenty sages as law givers. This list comprises of the following sages, who are law givers. (dharmashastra prayojakah)-Manu, Atri. Vishnu, Harita, Yajnavalkya, Ushanas, Angira, Yama, Apastamba, Samvarta Katyayana, Brihaspati, Parashara, Vyasa, Shankha Likhita, Daksha, Gautama, Satatapa and Vasistha. According to Mitakshara this list is only illustrative, not exhaustive.

 

All the Smritis have their source in the Veda save those portions that deal with temporal or visible matters. If a Smriti is in conflict with Veda, it must be rejected as being not founded on revelation. If there is a conflict between the rule of one Smriti and the rule of other Smriti, they both be reconciled, if it is not possible, then the Manusmriti shall prevail over other Smriti. Yajnavalkya Smriti is next to Manusmriti in order of authority. That is, if there is any conflict between the rules of Yajnavalkya Smriti and any other Smriti (except Manusmriti), the rule of Yajnavalkya Smriti shall prevail.

 

Smritis are written either in verse (shloka) or in prose or in mixed prose-verse. Smritis which are in verse are known as "Dharma-Shastra" Such Smritis are of Manu, Yajnavalkya, Narada, Katyayana and Brihaspati. Smritis which are in prose or prose and verse are called "Dharm-sutra", such as of Gautama, Baudhayana and Vashistha.

3. Commentaries and Digests

 

It has already been mentioned that smritis are many But all the laws are not mentioned in every smriti. Sometimes there are inconsistencies between the provisions of one smriti and the provisions of other smri, Dharmashastra writers tried to reconcile these conflicting texts of Smritis or laws contained in those Smritis. These learned commentators and digest writers either commented on particular Smritis or made digests of the entire body of Smriti material. These writers modified and supplemented the rules in the Smuritis, in part by means of their own reasoning and in part in the light of usages that had grown up. These Commentators and Digest-writers purport to expound the law almost exlusively with reference to texts of the Smritis which are supposed to be only interpreted by them. These commentators while professing to interpret the law as laid down in the Smritis introduced changes in order to bring into harmony with the usage followed by the people governed by that law. A poignant estance of this fact is to be found in the discussion on the validity of marriage with a maternal sister The Commentators and Digest writers of Southern India support the validity of the marriage of maternal sister

 

Composed in different parts of India a number of these commentaries and digests gained ascendency in those parts of the country where the authors were accepted as of pre-eminent authority. In different parts of the country different works came to be referred to as the chief guides on law The result was that two Schools of Hindu law-Mitakshara and Dayabhaga sprang into existence

 

Commentaries and Digests have in effect superseded the Smritis in very large measure. In Amaram v. Bairan 37 Bom L R 533 (PC) the Privy Council emphatically laid down that "in the case of a conflict between the ancient text writers and the commentators, the opinion of the later must be accepted

 

The principal commentaries are

 

(1) Dayabhaga by Jimutavahana

(2) Mitakshara a commentary on Yajnavalkya by Vijnaneshwara

 (3) Viramitrodaya by Mitra Mira

(4) Vivada Chintamani by Vachaspati Misra

(5) Vivada Ratnakare by Chandeshwara

(6) Dayatattwa by Raghunandans

(7) Dayakramasangraha by Sri Krishna

(8) Smriti Chandrika by Devananda Bhatta

(9) Parashara Madhaviya, a commentary on Parashara by Madhavacharya, and

 (10) Vyavahara Mayukha by Nilkantha

 

4. Customs

Customs may be defined as the mode of life adopted by a set of people or by all the peoples of a particular locality or of the entire country.

Custom is defined as the unwritten law sanctioned by immemorial usage.

Custom may be defined as a habitual course of conduct generally observed in a community.

 

Custom is regarded as one of the most important sources of law. The Privy Council in Collector of Madura v Moto Ramalinga (1868) 12M.L.A. 397 held that "under the Hindu system of law a clear proof of usage of will outweigh the written text of the law."

 

The custom to be applicable should have the following essentials

 

(i) The custom must be ancient.

The custom must be immemorial. To be a valid custom the custom must be of long standing nature which would indicate that by common consent, it has been accepted as the law governing a particular locality. class or family. How long a custom must be in use for being regarded as ancient cannot be laid down by any hard and fast rules. The Mitakshara says that it must be 100 years in use. It has been held in earlier case that custom must be proved to have existed from time preceding the memory of man or at any rate it must have existed as far as living testimony can establish. In Subhani v. Nawab, [ILR (1941) Lah. 154] it was held that a custom must be ancient but it is not of the essence of this rule that its antiquity must in every case, be carried back to a period beyond the memory of man.

 

In Babu Narain Lakras v. Saboosa, [1949 ALJ 360] the Privy Council said that in India a custom need not be immemorial but the requirement of long usage is essential.

(ii) It must be certain and uniform.

A custom must be certain. It must not be vague, ambiguous, indefinite. In order to make a custom definite and certain, universality its observance is necessary. If a custom is varied or changed from time to time, there will be no universality and consequently it will not be a valid custom. The recognition of any custom can be extended only when its clarity or unambiguity is proved.

To make a custom a valid one, it is necessary that it is observed uniformly. There must be uniformity in its observance. If it is not observed uniformly then it is not a valid custom.

 

A belief in the propriety of the imperative nature of a particular course of conduct, produces a uniformity of behaviour in following it, and a uniformity of behaviour in following a particular cause of conduct produces belief that it is imperative or proper to do so. When from either cause or from both causes, a uniform and persistent usage has moulded the life and regulated the dealing of a particular class or community, it becomes a custom.

(iii) It must be continuous.

Invariability or continuity of a custom is essential for its acceptance as a valid custom. Also, continuity of a custom is as essential as its antiquity. To obtain legal existence for any custom a clear proof of its continuous observance is necessary. If there is a breach of a custom in a particular case, it cannot be said that the custom is destroyed because it may continue to be applicable thereafter.

(iv) It should not be immoral or against the public policy.

Customs which are immoral will not be enforced even though they may be clearly established. Whether a custom is immoral must be tested by the sense of the community as a whole and not of a section thereof. Although the standards of morality vary from time to time, from place to place and from community to community, the Courts take upon themselves the responsibility of determining what is moral in the facts and circumstances of the particular case. The immorality of custom is to be tested in the context of consensus of the whole community not of a part of it. In Hira V. Radha, [ILR 37 Bom. 177] it was held that where a temple dancing girl is allowed to adopt a girl with intention of training her up an immoral profession is invalid. An alleged custom permitting a woman to leave her husband and to remarry without his consent or a custom permitting husband to pronounce divorce on payment of a sum of money to wife without her consent or custom under which adoptive parents pay a sum of money to natural parents at the time of adoption, is void being against morality.

A custom which is opposed to public policy is void. In Rajah Vurmah v. Ravi Vurmaih, {1(1876)4 1A 76}  the Privy Council held that a custom permitting the trustee of religious endowment to sell the trust was void and contrary to public policy

 

(v) It should not be unreasonable.

The custom must be reasonable. Reasonable means the customs should not be contrary to public policy and they must be in accordance with the rules of justice, equity and good conscience.

An unreasonable custom is void. Customs differ from place to place and reasonableness or unreasonableness is a matter of social value. Therefore, the reasonableness of a custom is to be determined in the context of society in which it exists and not determined by the contemporary values of every society, although, there may be certain rules or practices which are considered unreasonable.

(vi) It should not be opposed to statutory law.

In order that the custom be a valid one, it must not be opposed to law for the time being in force. A custom must not be contrary to mandatory provision of a law. In this context, 'law' includes not only statutory law but also the mandatory texts of Dharmashastra law. But, here by being opposed to law, we mean opposed to statutory law. A custom opposed to sacred law prevails, but no custom opposed to statutory law can be given effect. Hence the custom must conform to Statute Law.

 

 

The codified Hindu law has abrogated customs in most of the manten except in those matters, where the customs have been saved in express words. But in those matters, where the uncodified Hindu law applies, the principle of law laid down in Collector of Madura v. Mootoo Ramalings (1868) 12 MIA 397 still holds good. For custom to have the colour of a rule of law, it is neccesary for the party claiming it to prove that such custom is ancient, certain and reasonable. [Dr Surajmani Stella Kujur v D C Hansdah, 2001 (42) ALR 347 (SC)]

Kinds of customs

1.       Local customs

2.       Class/cast customs

3.       Family customs

5. Legislation

 

Enactments of the Legislature declaring, abrogating, amending er modifying rules of Hindu law are additional and modern source. No longer do we look to the Smritis and Commentaries for the Hindu law but to the legislature. Most of the enactments are in the direction of reform of Hinds law and some of them supersede Hindu law.

 

 The Hindu law has been substantially changed by the following Acts:

 

1. The Caste Disabuities Removal Act, 1850.

 

2. The Hindu Widows' Re-marriage Act, 1856.

 

3. The Dissolution of Native Converts' Marriage Act, 1866.

 

4. The Special Marriage Act, 1872, and re-enacted in 1954 "The Special Marriage Act, 1954".

 

5. Child Marriage Restraint Act, 1929.

 

6. The Hindu Inheritance (Removal of Disabilities) Act, 1928.

 

7. The Hindu law of Inheritance (Amendment) Act, 1929.

 

8. The Hindu Gains of Learning Act, 1930.

 

9. The Hindu Women's Right to Property Act, 1937. 10. The Hindu Marriage Act, 1955.

 

11. The Hindu Succession Act, 1956.

12. The Hindu Adoptions and Maintenance Act, 1956.

 

13. The Hindu Minority and Guardianship Act, 1956.

 

The last four Acts have overhauled the provisions of Hindu law.

 

6. Precedent

 

Precedent means previous judicial decision. Strictly speaking, precedent is not the source of law in the sense in which the Legislature is. Because the function of a judge is not to make law but only to interpret it. In interpreting and applying the law to particular cases, the judges expressly or by necessary implication enunciate what the law is, and the view of the law expressed and acted upon by them serves as a guide in similar cases arising subsequently, and is taken to have a binding force.

 

The judicial decision is a source of law in the sense that it is binding on the subordinate courts. If the decision is by the Supreme Court of India or by the Privy Council, it is binding on all the courts. There is now large bulk of cases on Hindu law covering all its aspects that they have almost settled the law. In such matters recourse to the original sources is not necessary.

 

The judicial decision have amended and altered the Shastric Hindu law mainly on the matters relating to stridhan, adoption, coparcenary property, partition, alienation, debt, will, endowment and guardianship. The decision of the Privy Council in Hanuman Prasad Pande v. Mst. Babooee Munraj Kunvari (1868) 6 MIA 393 has ruled over our Hindu law for about a century until it has been amended by the provisions of the Hindu Minority and Guardianship Act, 1956.