Sources of Hindu Law
Sources of Hindu Law
Sources of Hindu Law
List of Contents
Hindu law unlike Roman law is more religious than secular in character. It is
not a codified law but extracted from various religious texts, commentaries
usages and custom and judicial decisions.Hindu law is mainly a law
governing the Hindu. This a personal law (Marriage, Divorce, Adoption,
Inheritance etc)and applicable to person andfamily relation only the Hindu
believe that their law is of divine origin andto them this is positive law
emanated from the deity. The Hindu kings werebound by the divine laws
contained in the Smritis and these were applicable to king and subject alike.
The king used to administer justice as the representative of God and royal
edicts though had the force of divine law in some matters.
According to Gautam
Dharmashastra and administration of justic shall be regulatade
the vedae The institutes of the secred law the vedangas and the puranas.
According to Yajnyavalkya
The Sruti ,the Smriti the approved usage, whet is agreeable to
one's good conscience and desires sorung from due deliberation ordained
as the founding of Dharma.
Ancient Sources:
Before the codification of Hindu Law. The ancient literature was the only
source of law. These sources can be divided into four categories:
1. Shrut:
The literal meaning of shruti is what was heard by the sages in a revelation
by almighty. It is originated from Vedas i.e. Rig, Yaju, Sama and Atharva
vedas. The deals with the mastery of rhyme and meter. Vyakarna deals wits
the study of word and sentence structure. Nirukta deals with the meaning of
complex words and phrases. Kalpa deals with the ethical moral and
procedural percepts associated with the perfomce of rituals as a way of life.
The vedantas are commentaries on vedas their putativ end and essence and
thus know as vedanta or end of the veda. They are considered the
fundamental essence of all the vedas.
2.Yajur veda: The Yajur veda deal with rituals and sacrifices and the
montras in this connection. A mantra is a sacred prayer addressed to any
Deity.
3. Sama Veda: The sama veda contains prayers composed in metre and set
to music.
2.Smriti:
Smriti literelly means that which was remember. Both sruti and smriti refer
to the utterances and precepts of the Almighty. which have been heard and
remembered respectively and handed down by the rishis (sages)from
generation to generation. The exact number of smritis (or codes) is not
definitely know but the earliest one seems to be the manu smriti. The
principal smriti are those of manu yajnavalkya and Narada.
The Smriti kars declared and stressed the divine origin and sanction of the
rules of dharma. Since the law is the king of king for more rlgid than they
nothing can be mightier than the law by whose aid as by that of the highest
monarch, even the weak may prevail over the strong.(Shatapatha Brahmana)
3. Puranas:
The purana eighteen in number(excluding upa-puranas) are also a source of
Hindu Law. The purana are codes which illustrate the law by instances of it's
application. As observed by the Allahabad High court.
somewhere in the order of precedence either between the shruti and smritis
or more probably after them come the purana which the celebrated author
colebrooke states are reckoned as a supplement to the scripture and as such
constitute a fifth veda.
Thay are but mythologieal pomes professing to give an account of the
creation to narrate stories of God and ancient King and in doing so thay
relate religious duties God and rigths. Though it is a source of law but hot
considered as authoritative.
Prof wilson observes The purana are not authorities in explanation or
illustration but not in proof.
4.custom:
custom is a set of rules and norms practice byparticular society
for a long period of time. It is a rule of action uniformly and continuously
followed by the bulk of the people for alongtime. custom is recognised as an
important source of Hindu law.custom may be divided into four types which
are :
(a)General custom
(b)Local custom
(c)Family custom
(d )class custom
1. General custom: There are the customs that are observed throughout
the common law of the land.
2. Local custom: These are the custom that are followed in a given of a
geographical area. In the case of Subbane vs Nawab. Privy Council observed
that a custom gets it force due to the fact that due to its observation for long
time in a locality it has obtained the force of law.
3. Famly customs:These are the custom that are followed by the family
from a long time. These are applicable to families where ever they live. They
are source is can be more easily abandoned that other custom . In the case of
Soorendranath vs Heeramonic. Privy Council observed that custom followed
by a family have long been recognized as Hindu Law.
4. class custom: These are the custom that are followed by a particular
on the members of that community or caste.
1. Ancient:
Ideally a custom is valid if it followed from hundreds of years. There is no a
Definition of ancientness however 40yrs has been determined to be ancient
enough . A custom cannot come into existence by agreement. It his to be a
existing from of Hind u marriage was not recognized in Tamil Nadir . In the
Case Rajothi vs Selliha a self respecter cult started a movement under which
Traditional ceremonies were substituted with simple ceremonies or marriage
that did not involve satire rites. Hc held that in modern times no one is the
free to create law or custom since that is a function of legislature.
2. Continuous Observance:
It is important that is custom is being followed continuous and has not been
Abandoned , it cannot be revived.
3. Certain:
The custom should be very clear in terms of what it entails. Any
amount of vagueness will invalid. The one alleging a custom must
prove exactly what it is.
4. Reasonable:
There must be some reasonable and fairness in the custom. Though what is
reasonable depends on the current time and social values.
Proof custom
The burden of the proving a custom is on the person who alleges it . Usually
Custom are proved by instances. But one a instance does not prove a
custom.
However in the of Ujagar vs jeo13 it was held that if a custom of has been to
brought to notice of the court repeated . Existence of a custom can also to be
Proved through d0cumentary evidence.
Modern Sources
Hindu law has been greatly influenced by the British rule. Which it is might
seem that the British brought with them the modern concept of a equity and
justice these a concept of existed even in a Dharamastras in a different form.
Narada and Katyayana have a mention the importance of dharma of source
(righteousness) in delivering justice. However we did not have a practice of
delivered. So it was not possible to apply state . This process started fromthe
British rule. Thus the following became the modern source of Hindu law:
(a) Commentaries,
(b) Legislation,
(c) Equity, Justice and good conscience,
a. commentaries:
The upa -puranas or minor or subsidiary puranas thought regarded generally
as spurious (not fact unauthentic) compositions some rules enunciated by the
authors of thus have found favor of with the court. The authors a called these
rules as rules of conducts. Raghunandana prohibition of the intermarriage of
the between different tribes though contrary to the Shastrss is based on of the
Aitya purana and it was accepted by the court in Malarm v. Thanooram
Case.
b. Legislation:
In modern society this is the only way to bring in new laws. The parliament
in accordance with the needs of society constitute new laws . For example a
new way of performing Hindu marriage in the Tamil in India that got rid of a
rituals was rejected by the Supreme court on the basis that new custom it is
to cannot be invented However of the Tamil Nadu later passed an Act that is
recognized these marriage. During the British rule a vast numbers of Act and
Ordinance were promulgated in undivided India to reform the Hindu laws of
existed at that time . i.e. the caste Disabilities Removal Act, 1850; the Hindu
Widow's Remarriage Act, 1850 etc (see Appendixes). Such legislations are
now part of our Hindu law.
d. Precedent:
The doctrine of stare decision started in India from the British rule. All
cases are now recorded and new cases are decided based on existing case
laws. Today the judgment of Supreme court of Bangladesh (both High court
Division and Appellate Division) is binding on all court subordinate to it
across Bangladesh. As a result the decision of Supreme court regarding any
matter arising out of Hindu law is binding upon the Hindus in Bangladesh.
Thus such decisions are considered as source of Hindu law in Bangladesh.