In order to understand the concept of Dharma, we need to first know what that word

means. Although there is no literal translation of “Dharma” in English, many people use it in
different contexts. One of the most common meanings of Dharma is “duty”. Depending on other
contexts and religious connotations, Dharma often assumes different meanings. For example,
Buddhists refer to Dharma as a cosmic law, while Jains and Sikhs use it to mean religious paths.

According to Hindu jurisprudence, Dharma means duty in various contexts. This could
mean either religious duties or even social, legal and spiritual duties. Some people also use the
word to mean righteousness, which gives it a moralistic interpretation. In purely legal terms,
some people refer to the concept of justice as Dharma.

Several ancient Hindu texts define Dharma and concepts like law, justice, and religion
interchangeably. Therefore, there appears to be no distinction between Dharma and law in
general. However, we must understand that Dharma has a religious and moralistic basis as well.

Sources of Dharma

The earliest mention of “Dharma” occurs in Vedic texts like the Rig Veda to mean the
foundation of the universe. These religious texts claimed that God created life using by inculcating
principles of Dharma into all living creatures. Therefore, salvation (or “moksha”) is the eternal
Dharma for humans according to Hinduism.

Later Hindu texts like the Upanishads greatly refined the concept of Dharma and made it
more moralistic. Since this was the time period when nation-states started evolving, Dharma
attained a legalistic meaning. Hindu legal codes like Manusmriti used Dharma to mean religious
and legal duties of people. In other words, Dharma became a prescriptive concept as it described
what people should or should not do. This interpretation of Dharma continued and its traces exist
even in modern Hindu laws.

Even Hindu epics like Ramayan and Mahabharat refer to Dharma. They say that performing
one’s Dharma is the ultimate aim of every individual. Since the main function of a king is to uphold
Dharma, these texts often refer to historical figures as “Dharmaraja”.

Thus, we can see that Dharma as a concept emerged and was refined from many religious
Hindu texts. Its meaning and scope expanded with time until it came to be associated with the ideals
of law and justice. This is exactly how we understand Dharma today.

Nature of Dharma

Unlike other schools of jurisprudence, Hindu jurisprudence gives more emphasis to

duties over rights. This is because Dharma, in its various connotations, prescribes the ultimate
duties of every person. The nature of these duties might change from individual to individual, but
it always remains a central theme. For example, a king’s Dharma is to uphold religious law,
while that of a farmer is to provide sustenance.
Another feature of Dharma is that it greatly resembles natural law schools of jurisprudence. This
is because ancient Indian jurisprudence believes that it is God who granted rights to people.
Therefore, the ultimate source of all social, legal, political and spiritual rights is divinity.

Despite being a highly religious concept in nature, Dharma is multi-faceted. It contains laws and
customs regulating a wide range of subjects. For example, texts like Manusmriti deal with
religion, administration, economics, civil & criminal laws, marriage, succession, etc.

Legislation is a modern source of Hindu Law. It has been an important factor in the development
of Hindu Law. Most of them are in the direction of reforming Hindu Law. In different parts of
the country there were different rules and practices. It was difficult to find fixed principles of law
on several Areas.

Sources of Hindu Law

The main sources of Hindu law are as follows.

1. Srutis

2. Smritis

3. Commentaries and Digests

4. Judicial decisions

5. Legislation

6. Justice, equity and good conscience, and

7. Customs

Many important acts have been passed which have effect of changing the religious nature of
Hindu Law at several instances. Legislation has become at present potential source of law in
India.

Important Legislations which have modified altered and supplemented the textual Hindu law are
as follows.

1. The Hindu Inheritance Act, 1928

2. Child Marriage restraint Act, 1929

3. The Hindu gains of learning Act, 1930

4. The Hindu marriage Act, 1955

5. The Hindu Succession Act, 1956

6. The Hindu adoption and Maintanance Act, 1956

7. Hindu minority and guardianship Act, 1956

8. Hindu widow’s re-marriage act, 1856

9. The Special marriage Act, 1872

10. The Indian Majority Act, 1875

Thus Hindu law was reformed and modified to some extent. But these reforms were half hearted
and piecemeal (Slow / bit by bit). Piecemeal reforms have their own drawbacks. One result of
these piecemeal reforms that, through reforms were introduced to change some aspects of Hindu
law, their implication on other aspects was overlooked.

The Hindu women’s right to property act, 1937 was passed with a view to granting property
rights to women but it joint on the law of joint family was overlooked. The result was that these
piecemeal reforms solved some problem but created others.

Legislation is the latest and vital source of modern Hindu Law. These Legislations have not only
brought in profound changes in ancient Hindu Law but also have made the law certain and
definite by various Acts, Rules and Regulations.

Sources of Hindu Law

1. The srutis:-the name (sruti) is derived from the root “sru” (to hear) and signifies “ ‘what is
heard’.

 By sruti or what was heard from above, it meant the veda.

 It is believed to contain the very words of the diety revealed to inspired sages.
 Srutis are considered to be the primary and paramount sources of Hindu law.
 This is a supreme authority as it is considered to be divine source.
 But practically the srutis is of no legal significance.
 The srutis consists of the four Vedas and the Upanishads dealing chiefly with religious
rites and the means of attaining true knowledge and Moksha or salvation.

The four vedas are as follows

1. Rig veda

2. Yajur veda

3. Sam veda

4. Atharva veda

1.The Rig Veda : it is the oldest text. It contains the eulogies of gods and laws of sacrifices. It
consists of 1028 hymns arranged into 10 groups (mandala) some of which are sub-divided into
smaller groups, the compilation of each group being ascribed to some renowned saintly poet-
priest (Rishi) of ancient times.
2.The Yajur Vedas :-it is liturgical arrangement of part of hymns of the Rig veda with additions,
for intoning in the appropriate manner at sacrificial ceremonies. It is in prose containing
explanations and directions, for the guidance of the priests.

3.The Sam Vedas:- it consists of prayers composed in mantra intended to be chanted at

sacrifices.

4.The Atharva vedas:- it consists of magic charms.

The Upanishads are denominated as the Vedanta or the concluding porting of the Vedas and
embody the highest principles of hindu religion and philosophy.

2. Smritis:-the smritis means “what was remembered” and is of human origin and is believed to
be the recollections of Rishis handed down to us, constituting the principle sources of Hindu
Law.

The smritis are divided into primary and secondary smritis,

The primary smritis are again classified into

a. Dharma sutras:-Baudhyana, Apastamba, Harita, Vasishtha and Vishnu are the chief writers.

b. Dharmashastras :-Manu, Yajnyavalkya, Brihaspati and Narada are the writers of this Shastras.

The Smritis are of 2 kinds:

i. In prose style:- the Smritis in prose are called “Dharma Sutras”.

ii. In Poetry style:- the smritis in verse are called “ Dharmashastras”.

The code of Manu has always been treated by Hindu sages and commentators, as a being of
paramount authority.

According to Brihaspati Manu holds the first place because he has expressed in his code the
whole sense of the vedas and no code is authoritative which contradicts him.

Next to Manu it is work of Yajnayavalkya, in fact it is more dynamic though based on Manu
smriti. His work deals with rules of procedure in greater detail. His work is more concise and
logical.

3. COMMENTARIES AND DIGESTS:-

The period of commentaries and digest is between 700 A.D. to 1700 A.D..

The commentaries and digests were also the records of the traditional customs recorded in the
Smritis as well as the new customs claiming for and found worthy of recognition.
Because of incompleteness and frequent conflicts in the rules of the smritis and desirability of
interpretation of the injunctions of smritis in a manner so as to suit prevalent custom and usages
of different parts of the country, there was the necessity to reconcile them on the points of
difference. In this process there arose this important source.

The commentaries, though professing and purporting to rest on the smritis, explained, modified
and, enlarged the traditions recorded therein to bring them into harmony and accord with
prevalent practices of the day.

4. CUSTOM

WHAT IS A CUSTOM?

In 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 family.

Difference between custom and useage.

It often that custom and useage terms are used as synonym but there is difference that is Custom
must be of antiquity and useage is of recent origin.

So, the custom to have the force of law or rule of law, it is necessary for the party claiming it to
plead and thereafter prove that such custom is ancient, certain and reasonable.

Kinds of custom.

a. Local custom

b. Class custom

c. Family custom.

a. Local custom:-such customs belong to some particular locality, or district and they are binding
on the inhabitants of such place.

Case Law Smt.Subhani V. Nawab [AIR 1941 Lah 154]

That “it is undoubted that a custom observed in a particular district derives its force from the fact
it has from long usage obtained in that district the force of law. It 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 still less that it is ancient in the English technical sense.

What is necessary to be proved is that the useage has been acted upon its practice for such a long
period and with such invariability as to show that it has been acted upon in practice for such a
long period and with such invariability as to show that it has, by common consent, been
submitted to as the established governing rule of the particular district.

B. Class custom:-

such customs are of a caste, or a sect or of the followeres of a particular profession or

occupation, such as agriculture, trade, mechanical art and the like.

C. Family customs:-

such customs relate to a particular family, particularly concerning succession to an impartible

Raj or succession to Maths or religious foundations.

ESSENTIALS OF CUSTOM

• In order that a custom to be valid, it must be-

• Ancient

• It must be ancient in India.

• It need not necessarily be from time immemorial in the english technical sense.

• In India the Hindu lawyers have laid down a reasonable rule on this question. One hundred
years is the limit suggested by them.

• What ever is beyond a century is immemorial or out of mind of man whose span of life
according to the sruti extends to one hundred years only.

1. Ancient:-

A custom should be very old. It should have been accepted as law binding upon them.

In India the Hindu lawyers have laid down a reasonable rule on this question. One hundred years
is the limit suggested by them.

In GOKAL CHAND V. PRAVIN KUMARI [ AIR 1952 SC 231]

• The Hon’ble supreme court held that a custom in order to be binding must derive its force from
the fact that by long usage it has obtained the force of law but the English rule that a custom in
order that it may be legal and binding must have been used so long that the memory of men
runneth not to the contrary should not be strictly applied to Indian conditions.

• All that is necessary to prove is that the usage has been acted upon in practice for such a long
period and with such invariability as to show that it has, by common consent been submitted to
as the established governing rule of a particular locality.

2. Invariable and continuous :-

Continuity is as essential to the validity of a custom as antiquity.

• In the case of a widely spread local custom, want of continuity would be an evidence to the fact
that it never had a legal existence.

• It is difficult to imagine that a custom once thoroughly established, would come to an end
suddenly.

• Thus when a particular custom has been discontinued for a period it would come to an end.

• It is immaterial whether the discontinuance results from accidental cases, or from the intention
of the persons affected by it.

3. Established by clear and unambiguous evidence :-

The evidence of custom must be clear and unambiguous.

• A custom may be proved either by actual instances or by general evidence of the members of
the tribe or family who would naturally be cognizant of its existence.

• Custom must be proved by clear and unambiguous evidence.

• The testimony of experienced and competent person that certain acts done in accordance with a
particular usage are held by them to be legal and valid, is admissible in evidence, provided that
statements are supported by examples of class, the history of the class is to be considered, in
order to establish the custom.

• The burden of proof as to the existence of a custom rests on the persons who sets up a custom
contrary to law.

• The burden of proving that the family has abandoned the law of origin and has adopted the law
of state where it has settled, lies on the party setting it up, and the burden can be discharged by
showing that in the matter of devolution of property, the rules obtaining in the country of
adoption have been accepted as rules governing the family.

4. Reasonable :-
The custom must be reasonable.

• Customs are not to be enlarged beyond the usage without the parity of reason.

• It cannot be said that a custom is founded upon reason, though an unreasonable custom is void.

5. It must not be opposed to morality or public policy and

• Though a custom may be clearly established, it cannot be enforced if it is immoral or is against

public policy.

• A custom should not be opposed to the express provision of any law nor should it be forbidden
by law.

• A custom opposed to rules given in the texts of smritis or commentaries is not void.

Case law

• Collector of Madura v. Mootoo Ramalinga

In this case the Privy Council observed, under Hindu system of law, clear proof of custom will
outweigh the written text of law.

6. It must not be forbidden by any express enactment of the legislature.

A mere agreement among certain persons to adopt a particular rule cannot create a new custom
binding on others, wherever its effect may be upon themselves.

5. LEGISLATION

• Legislation is modern source of Hindu Law. It has been an important factor in the development
of Hindu law. Most of them are in the direction of reforming Hindu law and some of them
supersedes Hindu law.

The important legislations which have modified, altered and supplemented the textual Hindu law
are as follows,

1. THE CASTE DISABLITIES REMOVAL ACT 1850:-

A Person renouncing his religion or losing his caste is not deprived of his rights of inheritance
under the Act.

2. The hindu widow’s remarriage Act 1956

This Act legalized remarriage of Hindu widows in certain cases and declared their rights and
disabilities on remarriage.
3. The native converts marriage dissolution Act 1866

A hindu who converts to Christianity may obtain a dissolution of marriage under circumstances
laid down in the Act, though under the pure Hindu Law, marriage being a sacrament, would not
be dissolved.

4. The Special Marriage Act 1872:-

It is amended in 1923 and now as repealed by Act 43 of 1954.

5.The Indian Majority Act 1875:-

Except is cases of marriage, divorce and adoption, the age of majority has been fixed on the
completion of the 18th year.

6. The T.P.Act 1882:-

It superseded the Hindu Law relating to Transfer of property.

7. The Guardian and wards Act 1890:-

It applied to appointment of guardianship by the court.

8. The Hindu Disposition of Property Act 1916:-

It allowed bequest to an unborn person.

9. The Indian succession Act 1935:-

It modified the Hindu law relating to wills.

10. Inheritance (Removal of Disabilities) Act 1928.

It amended the Hindu Law relating to exclusion from inheritance of certain classes of heirs on
account of physical defects.

11. The Hindu Law of Inheritance (Amendment)Act 1919.

It altered the order of heirs on intestate succession and created new female heirs.

12. The Child marriage Restraint Act 1929.

It restrained child marriage.

13. The Hindu Gains of learning Act 1930

It provides that the property acquired by a coparcerner by means of learning becomes his
separate property.
14. The Hindu women’s rights to property Act 1937:-

A widow of a deceased Hindu was entitled to get a share along with the son.

15. The Arya marriage validation Act 1937:-

It recognized the validity of inter-caste marriage.

16. The Hindu marriage Disabilities Removal Act 1946.

17. The Hindu married women’s Rights to separate residence and maintenance Act 1949.

18. The Hindu marriage Validity act of 1949.

19. The special marriage Act 1954.

20. The Hindu marriage Act 1955

21. The Hindu minority and guardianship act 1956.

22. The Hindu succession Act 1956.

23. The Hindu Adoption and Maintenance Act 1956.

24. The Child marriage Restraint (Amendment) act 1978

25. Marriage law (Amendment) Act 1976.

26. Hindu Succession (Amendment) Act 1976.

Judicial Decision :-

During the British regime, for administering law in India, the courts exercised the old Smritis
and their commentaries while deciding the legal issues applicable to Hindus.

The English Judges administered Hindu law with the assistance of Hindu pandits, later it was
abolished.

The Judicial decision constitute an important source of law. A large number of decision have
now piled up on almost every point of law which have superseded the law laid down in
commentaries on several fronts.
The precedent is not merely an evidence of a law but also a source of law and the courts are
bound to follow the precedents.

The judicial decision have modified and supplemented the pure Hindu Law and now they have
emerged as important source of law.

There are numerous instances where the judges in administering the Hindu law either modified
or altered it.

Ex:-Adoption, son to pay father’s debts, restriction on definition of stridhan, curtailment of

women’s rights