The Hindu system of Jurisprudence is the most ancient legal system in the world and it has been prevalent since the emergence of humanity. So, it is essential to know the various sources of Hindu law from which it has evolved. The term “source of Hindu law” means the authority from which the law has been derived. It denotes the basis from which the Hindu law came into existence and these sources of Hindu law are also considered as the evidence of Hindu law. In this article, we will explore the meaning and nature of Hindu law along with the modern sources of Hindu Law and Ancient sources of Hindu law from which the Hindu law has evolved.
Definition of Hindu law
The term Hindu has been derived from the old Sanskrit word “Sindhu”. It was first used in Persia around the 6th BCE. The term Sindhu was used for the local residents of the North-Western part of the Indian subcontinent near the Indus river. The Hindu law is a collection of personal laws that regulates the social affairs of the members of the Hindu religion. These social affairs include marriage, adoption, inheritance, partition and other family matters. In India, every religious group governs their social affairs as per their own personal laws.
Hindu law is a “body of principles, ideas, theories and doctrines which connects human beings’ life. The Hindu Law is itself a jurisprudence as it deals with the Law and Dharma, Law and Morality, etc. This Hindu jurisprudence is mainly premised on the concept of “Dharma”. The word ‘Dharma’ is derived from the root ‘dhri’ which means to uphold. It indicates the essential quality of persons or things. By the term ‘Dharma has understood the rules which govern the whole mankind.
Further, the “Doctrine of Karma” is pervasive in the concept of Hindu Law.
Now, it is essential to understand who is a Hindu for the purpose of determining the application of Hindu law.
As per Hindu Marriage Act, 1955, a person will be called a Hindu, if
- He/She is a Hindu by way of religion.
- He/She belongs to either Budh, Jain or Sikh community by religion. In this category, both legitimate and illegitimate children are included.
- He is not a Parsi, Christian, Muslim or Jew by religion.
It is important to note that if a person is born as a Hindu but later on turns atheist or becomes non-religious, he/she will still be counted as Hindu.
Origin of Hindu Law
There are 2 main theories regarding the origin of Hindu law.
As per the first theory, the Hindu law is considered to have a divine origin from the Almighty God. It is believed to have originated from the Vedas, which are the revelation of God. It further states that the law is independent of the state and it is binding on both the king and the subjects with the same legal force. Hindu law is also called Apauruseya.
Whereas, the second theory states that the Hindu law is based on immemorial customs, religious texts and scriptures that were in existence prior to Brahmanism. After the invasion of the Aryans, some customs and usages that were familiar with their earlier practices were adopted by them. It results in the formation of Hindu law. The Aryans don’t recognise such customs as polyandry, incestuous marriage etc.
In ancient times, the law was often equated with “Dharma”. With the changing times, it was modified to ensure that the social and moral life of the Hindu’s continued with a diverse element of Harmony. It was rightly quoted by Mr Henry Maine that the “Hindu law has the oldest pedigree of any known system of jurisprudence and even now it shows no signs of decrepitude”.
Nature of Hindu Law
According to the Jurist, the law was not the command of the sovereign but it was the obedience to our Supreme authority known as “Dharma”. The law for a person was to follow his Dharma. Both the kings and the subjects had to abide by the rules of Dharma. It tells about our rights and duties and guides us to achieve salvation. As per the jurist, Dharma binds the individual through the code of conduct.
Further, the nature of Hindu law is progressing and it evolved subsequently as per the changing needs and dynamics of the society. The Privy Council in Mookka Kone vs Amma Kutti held that the nature of Hindu law was not static or rigid. There is a continuous progression while following the basic virtues or values of the law.
Sources of Hindu law
It is believed that the nature of Hindu law is prevalent from time immemorial. There are various ancient texts and scriptures from which their genesis can be traced. It includes Shruti, Smritis and various Upanishads written by the learned scholars. In modern times, the nature of Hindu law was developed through new legislations and codification.
Various Sources of Hindu Law
The sources of Hindu law is broadly divided into 2 parts
1) Ancient Sources of Hindu law
2) Modern Sources of Hindu law
Ancient sources of Hindu law
Ancient sources of Hindu Law refers to those laws which regulate the conduct of Hindus in the ancient time when there were no codified laws and regulations. In reality, these were the real sources from which the nature of Hindu law came into existence. The ancient sources act as a guiding principle for our modern-day legal system.
There are mainly 4 ancient sources of Hindu law namely –
- Commentary and Digest
Shrutis is the first source of Hindu law. Shrutis is what we heard from our ancestors. It is the first and the most authoritative source of Hindu law. The word Shruti has been derived from the Sanskrit word “Shru” which means “to hear”. It means the words of law pronounced by the divine God and heard by our holy sages. The sages further passed on this knowledge to the common people and it became the law of the land.
At the time of Shrutis, there was no written material available. The person who used the way to communicate their knowledge orally. This knowledge was distributed by sages to their families. This knowledge was supplemented by the families of sages and carried forward.
There are four Shrutis which are known as
- Rig Veda
- Yajur Veda
- Sam Veda
- Atharva Veda
Originally there were only three Vedas in history. Atharva Veda was added later. Rig Veda is considered as the tree and Yajur Veda and Sam Veda are known as the offshoots of Rigveda.
The Vedas do not describe the law. They just talk about Dharma and the way of living. These Vedas say that the Hindu society is made up of families which we know as Hindu undivided families. The business of the Hindu undivided family is run by the Karta of the family who is also known as Grihpati.
The Shruti is also known as “Vedas’ ‘ which is considered the most sacred document in our Hindu religion. The Vedas are divided into 4 parts namely, Rigveda, Samveda, Yajurveda, Atharveda. These Vedas made us aware of our duties and their manner of performance while living in society. The essence of these duties is mentioned in the Upanishads.
The Vedangas came into existence in the post-Vedic period. These are 6 in number which includes, Sikha, Kalpa, Vyakarana, Chhandas, Jyotish, Nirukta.
The Vedas also talk about our rights, forms of marriage, partition, inheritance, etc. The Vedic period existed between 4000 to 1000 BC and during that period the society was divided into 4 Varnas (Brahmin, Kshatriya, Vaishya, Shudra).
The theory of “Karma” was also developed during the Vedic period. This theory states that each and every individual shall be rewarded as per his deeds. Further, the concept of salvation also emerged during that period.
Smritis are the second source of Hindu law. These were considered as the body of text which was written by an author and after that transmitted and supplemented through the families.
The word Smriti is derived from the Sanskrit word “Smri” which means to remember. In simple language, Smriti refers to those words of God, which the sages forget to tell in their original form and these words were remembered by the sages and they wrote down in their own words. Thus, we can say that Shruti is the direct language of God whereas Smriti is the indirect one. In case of any dispute between Shruti and Smriti, then the Vedic text of Shruti will prevail.
The Smritis are mainly of two types namely, Dharmashastras and Dharmasutras. The basic difference between the two is that the former is written in the form of “prose” (short maxims) whereas the latter is composed in the form of “Shlokas”. Apart from this, In Dharmashastra, our moral code of conduct is stated whereas, in Dharmasutras, the rule regarding government, population, economic affairs, etc is mentioned. A large number of Smritis are available in the nature of Hindu law but the renowned and the most authoritative smritis are the Yajnavalkya Smriti and the Manusmriti.
Manusmriti is the oldest Smriti and supplemented further by the generations. Manu was the author of Manusmriti. According to the Manusmriti, the Brahmins had an eminent position in society. Manusmriti did not provide any rights for women and Shudras at that time.
It was the first law book written by Manu and it is considered as the backbone for the system of governance. The Manusmriti is a compilation of all the Presmritis and Gathas. Manu gave special importance to the “custom” and advise the king to follow customs in the true sense. For the proper enforcement of the law, he also propagated the concept of “Danda”.
The text of Smritis dealt extensively with the 3 core areas of law namely-
- Achar – It relates to the code of conduct and Morality
- Vyavahar- It deals with the Substantive rules which a king should follow to settle a dispute.
- Prayaschitta – It is also known as the theory of Punishment. It deals with the penal provision in case of commission of any offence.
Yajnavalkya Smriti was written between the period of Buddha and Vikramaditya Singh. Yajnavalkya Smriti was more liberal than Manusmriti because:
- It recognised the rights and safety of women
- It provided the right for women to inherit the property
- Yajnavalkya Smriti gave a better status to Sudra.
It was the sage named Narada from Nepal who gave Narada Smriti. He was a very broad-minded person. It lay down various rights for women and others such as:
- Widows can remarry
- Women can hold the property
- This Smriti was in the favour of the Supremacy of the king made laws
- Smriti laid down rules related to litigation evidence and witnesses also.
Commentaries and Digests
The third important ancient source of Hindu law is the Digest and Commentaries. The commentaries emerged as the source of law in the period ranging from the 7th Century to 1800 A.D.Commentaries are also known as Tika or Bhashya. The commentaries refer to the explanation of Smriti in simple language. The concept of digests came into existence after the commentaries and they mainly explain the matter of Smriti with contradictions. A large number of commentaries and digest were written by our ancient authors on various Smritis.
Both the Shrutis and Smriti were seen as supreme. So it became important to know the crux of these two. To make the crux of Shrutis and Smriti, these two were divided into two parts which are known as Mitakshara and Dayabhaga.
- Mitakshara is a brief compendium. Mitakshara is a commentary which is given by Vijananeshwara on “Yajnavalkya Smriti”.
- Mitakshara does not provide such rights to women. According to this, the son, grandson and great-grandson has the right over the property from his birth.
- Dayabhaga is written by Jimutavahana. Dayabhaga is not a commentary like Mitakshara but it is a digest of Shrutis and Smriti.
- According to the Dayabhaga, until the Karta of the family is alive, the son, grandson or great-grandson cannot have any right on the property.
The commentaries played a fundamental role in the emergence of various Schools of Hindu Law. The Mitakshara school of law was developed on the basis of the commentary written by Vijayneshwara on Yajnavalkya Smriti. On the other hand, the commentary of Jimutavahana laid the foundation of the Dayabhaga School of law which is followed mainly in the area of Bengal and Assam. These two schools are considered an integral part of our Hindu legal system.
It was mainly after 200 AD, the Smritis were simplified and the commentaries came into existence. Their main objective was to gather all the scattered material in one place and compile them in a comprehensive manner for the betterment of society. They were more logical and easy to understand in comparison to Smritis. Some of the popular commentaries include Manubhashya and Manutika.
Custom as a source of law
An important source of Hindu law is Custom. It refers to those traditions, activities and practices which the people are following for a very long time and over time they received the force of law. The main objective behind this source of law is that if the people are following a particular custom and it does not possess any harm to society, then the state should recognise them legally.
It is an important source of Hindu Law and some of our ancient Hindu scholars put customs ahead of the written law.
In the landmark judgement of the Collector of Madura vs Mootoo Ramalinga, it was held that the clear proof of custom will outweigh the written text of the law.
The custom can be divided into 3 types namely:
- General Custom – It refers to those practices which are followed throughout the country. They are not restricted to a particular geographical area.
- Local customs- It refers to those customs which are only found in a particular area of society.
- Class customs- It includes those customs which are followed by a particular class of the society.
- Family customs: It includes those customs which are prevalent in a particular family. They can be easily abandoned as compared to other forms of customs.
Basis of a valid custom
The Indian Judiciary has time to time clarified the grounds of a valid custom which involves –
- Antiquity- The custom shall be in practice from time immemorial. Though a period is not specified, it is believed that a practice following from the last 40 years may constitute antiquity.
- Reasonability – The practice in question shall be reasonable and there shall not be any arbitrariness.
- Continuance – The custom in practice shall be continuing in nature since its emergence.
- Certainty – A valid custom shall necessarily possess the element of certainty.
- Not Against the Public Policy – Lastly, It shall not be inconsistent with the public policy. For example- Child marriage is a custom in Rajasthan, but it is against basic human rights. So, it can’t be classified as a valid custom.
It is often observed that people use the term “customs” and “usages” interchangeably. However, there lie some notable differences between the two. The Usages is the repetition of the Acts whereas the Custom is the general rule or the law that emerge from such repetition. A usage could exist without a custom, but a custom can’t be possible without a usage.
Modern Sources of Hindu Law
It refers to those sources of law which are comparatively new and these have evolved in recent times to meet the changing needs of society.
The 3 modern sources of Hindu Law are described as follows –
- Equity justice and good conscience
- Legislation as a source of Hindu law
- Precedent as a source of Hindu law
Justice, Equity and good conscience
This concept of law is based on the principle of fairness and impartiality. Many times, the judges faced a case in which there is no legal remedy for the aggrieved party. However, if the remedy is not given, the party will suffer considerably. Thus, a concept was evolved to reduce the hardship of law and it was known as the principle of Equity. Under this principle, the court can provide appropriate relief to the concerned party on the ground of reasonableness and fair play. True justice can only be attained through Equity and good conscience.
This concept of equity is very similar to the concept of natural law in ancient Hindu jurisprudence. So, whenever a conflict arises between the natural and the codified law, the natural law will prevail and will guide our actions as modern sources of Hindu law.
Legislation as the source of Hindu law
The legislation is also known as the codified form of law and is also considered in the modern sources of Hindu lawacient. It is the most common and reliable source of law in the present times. It is an act of the parliament in which all the provisions, rights and liabilities of the parties are mentioned. After getting independence, there was a sudden surge in the area of codified laws.
It was hard to find the exact law given under Shrutis Smriti and other laws in India. So the jurists start thinking about making a written law for all the citizens of India. But due to the diversity in India, it was difficult to apply a single law to every person. To solve this problem the jurist made the legislation to make the law uniform for all the persons. Most of the legislation was reformative in nature due to diversity in India.
The codified law is the binding and the most authoritative source that overrides all the other provisions of law. The parliament from time to time brings new Acts or amend the existing ones to keep pace with the rapidly changing society. The major enactment related to the nature of Hindu law is the Hindu marriage act,1955, Hindu adoption and maintenance Act, Hindu minority and guardianship act, etc
The legislation can be further divided into various parts like supreme legislation, colonial legislation, executive legislation, subordinate legislation, etc. In the present times, it is the main source of law as it can be easily amended keeping in mind the requirements of our changing society. It offers more certainty and reliability. The legislation is an exhaustive structure that provides a formal declaration of law.
Precedent as a source of law
The precedent is also a very important modern source of Hindu Law. The term “Precedent” means following the decision of a higher court by a lower court if the decision involves a common question of law. It is also important to note that the facts of both cases should also have some sort of similarity before applying this source. At present, the decisions of our Hon’ble Supreme Court of India is binding on all the lower courts and the decision of High courts is binding on all the lower courts of that particular state.
The precedent is an integral source of Hindu law as all the important rules, principles and doctrines of Hindu laws are mentioned in various landmark cases. Thus, any sort of dispute can be easily settled through their reference.
The precedents can be divided into binding, persuasive, original and declaratory.
Parts of a Precedent
- Ratio Decidendi – This term is taken from a Latin word that means the “reason for decision”. It implies the reasoning or the legal principles established in a case. The ratio decidendi is the crux of the judgement, and it is followed in future cases of a similar nature. The ratio decidendi of a Higher court is legally binding on the lower one.
- Obiter Dictum – It refers to the opinion or the remark made by the judge, which is not a part of the decision. It is not binding in nature as it hints toward the opinions, ideas, examples, statements, observations, etc that are made by the judge while making the decisions.
The precedent is an important source of Hindu law. When the legislation is not able to secure the ends of justice, the precedent comes into the picture and serves the necessary purpose. For example – When there was no legislation regarding the sexual harassment of women at the workplace, the supreme court in the matter of Vishakha vs the State of Rajasthan came up with detailed guidelines regarding it. Later on, these guidelines were enacted as legislation by the parliament.
In Luhar Amritlal v. Doshi Jayantilal, AIR 1960 SC 964, the honourable Supreme Court observed that the precedents have become an integral element of Hindu Law. They have modified and supplemented the Hindu law as per the needs of our dynamic society.
So, It not only helps to fill the lacunae in the law but also to induce faith in the people in the judiciary institutions of the country.
FAQ related to the sources of Hindu law
What are the ancient sources of Hindu law?
The Shrutis, Smriti, custom and digest and commentary are the ancient sources of Hindu law that were used in the ancient time to solve the conflicts between the societies.
What are the modern sources of Hindu law?
The doctrine of justice, legislation and precedent are the modern sources of Hindu law. The modern sources of Hindu laws were started in India after the arrival of the Britishers.
What is the interpretation of the statute?
Interpretation of statute is a theory to settle the dispute between two or more laws.
The nature of Hindu law is the most ancient legal system that has been living proactively for 6000 years. It is believed to have a divine origin and it was developed on the basis of the will of the people and to help them in attaining salvation. The sources can be classified into 2 parts namely ancient and modern sources of Hindu law. The modern sources of Hindu law are developed on the basis of the principles enshrined in the ancient sources of Hindu law. The ancient sources of Hindu law are also considered as the Identity of our Hindu religion.
Hindu law is not a body of law designed by the political authorities. It is an instrument by which the most familiar and respected human acts are first placed in a system or structure larger than individual experience. The nature of Hindu law doesn’t involve any command from the sovereign. It is only based on the ethical and moral practices of society.