Sources of Hindu Law

 SOURCES OF HINDU LAW

By: Robin Pandey                                                      Date: 19/Feb/2022

 Classical Hindu law built on the conceptual foundations of the Vedic period by developing a number of interrelated ideas into a coherent system of obligations centred around the more individualized concept of Dharma. It remains impossible to give clearly defined dates for the transition between Vedic Hindu law and Classical Hindu law because there was no sudden change, but a process of deconstruction and reconfiguration over a long time. Gradually classical Hindu law is being replaced by modern Hindu law which are based on statutory enactments, judicial decisions and justice, equity and good conscience.

The sources of Hindu law are

 (1) the Smrities or the Dharmasastras

, (2) the Commentaries and the Digest, and

 (3) Custom.

 The enactments of the legislature declaring or allering rules of Hindu law have now become an additional source. Where the Smrities and the Commentaries are silent or obscure, the principles of Justice, equity and good conscience are now, as in ancient Hindu law, available Within limits to supplement the rules of Hindu law. Decisions of courts have sometimes been referred to as an additional source, but strictly speaking the courts do not make laws but only ascertain and interpret them. However, the Supreme Court has observed in Luhar Amritlal v. Doshi Jayantilal, that the judicial decisions have become part and parcel of the Hindu law as is administered today and when there is an exposition of the text in a judgment or the Privy Council it is not necessary to decide the question afresh with reference to conflicting texts.

(1) THE SHRUTIS OR VEDAS 

The Shrutis (which has been heard) is in theory the primary and paramount source of Hindu law and is believed to be the language of divine revelation (Mayne). The word "Shrutis" literally means what is heard. Shrutis or Veda are that which have been revealed to and heard by the inspired sages. The six Vedangas (appendages to the Vedas) and the eighteen Upanishads dealing chiefly with religious rites and means of attaining true knowledge or Moksha or salvation.

(2) THE SMRITIS OR DHARMASHASTRAS

 The word "Smritis" literally means "What is remembered". Smritis were recollected and created by the inspired sages and is believed to be based on the lost texts of the Vedas, although not in the exact language of the revelation. The Smrities are considered to have emanated from the deity in the sense that though they are not in the very words of God, but embody what the sages remembered from revelations. Their authors do not claim to be divinely inspired, but being perfectly familiar with the Vedas they profess to compile from memory the divine rules handed down by tradition. The Smritis thus imply human agency in the declaration of the law, which is both substantive as well as procedural. So we can say that Smritis are of human origin. The Smritis constituted one of the principal sources of classical Hindu law. The Smritis are many in number. Among them, Manu's smriti stands foremost. After it Yajnavalkya, Narada, Parashara and Brihaspati's smritis are more important for purposes of ascertaining the law. 

(3) THE PURANAS 

Somewhere in the order of precedence either between the shrutis and smritis or most probably after them come the Puranas. Puranas are reckoned by the celebrated author, Colebrook as a supplement to the scripture, and as such, constitute a fifth Veda. They are eighteen in number. They are codes which illustrate the law by giving examples of its application. They are occasionally treated as authoritative. Mitra Mishra in his commentary on the Yajnavalkya smriti says that Puranas are not authoritative on law.

(4) CUSTOMS AND USAGES

 Customs and usages in general have played a vital role in the evolution of law, but in Hindu law they have special significance. From the earliest period achara' is considered to be the highest Dharma. Consequently good custom (Sadachara or approved usage) and Practices of good men (Shishtachara) were of great importance. Hindu law originated from customs. With the passage of time the original body of customs was defined and reshaped by great sages. If there is disagreement between the Smriti and custom, the custom has a upper hand because it is in practice. The obligatory character of customs is so much recognized by the ancient text-writers that every custom is supposed to be based on a lost text of the elations. The modern authorities are equally emphatic in their acceptance of the binding force of customs. This is said that Smritis and Commentaries were largely based upon customary laws. On matters not covered by the Smritis and Commentaries, Usage supplements the law laid down in them.

According to Section 3 (a) of the Hindu Marriage Act, 1955 the expression 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 is certain and not unreasonable or opposed to public policy; provided further that in the case of a rule applicable only to a family it has not been discontinued by the 1amily. Thus, custom is a rule which in a particular locality or in a particular class or persons or in a particular family has, from long usages obtained the force of law. For custom to have the colour of a rule or law, it is necessary that it must be ancient, invariable and continuous. certain and unambiguous, reasonable not Oppose to public policy or law or morality and must be obligatory.

(5) JUDICIAL DECISIONS (PRECEDENT)

 Judicial decisions are regarded as precedents for future cases. A precedent is not merely an evidence of law but a source of it and the courts of law are bound to follow the precedents. Strictly speaking, legislation and judicial decisions are not sources they have modified and supplemented the pure Hindu law, but now they have emerged as important sources of Hindu law. Precedents are a very rich source of law like a gold mine in the field of Hindu law. During the British regime the English Judges were facing great difficulties in interpreting the Sanskrit texts. However, the judicial committee of Privy Council and the High Courts in India have given Judgements in such a large measure that all the important points of law are included. These Judicial decisions upon the various points have developed as an important source of law and immensely contributed to the growth of Hindu law. There are a number of important issues of Hindu law on which legislation, are silent. The courts have thrown light on these dark alleys of Hindu law and made the law definite.