Sources of Hindu Law

Author: Priyanka Yadav

Introduction

India is a secular state where different religious group live together like Hinduism, Islam, Christianity, Sikhism, Buddhism, Jainism and many others. Hindu law is one of the oldest known jurisprudence theories and this law has been established by people, not for the purpose of removing any crime from the society but it was established so that the people will follow it in order to attain salvation and need of the people get fulfilled .This concept of the Hindu law was initiated for the welfare of the people.

There are two types of law, i.e.

1. General law:-includes IPC, CONSTITUTIONAL LAW, INDIAN CONTRACT ACT, etc.
2. Personal law:- includes HINDU LAW, MUSLIM LAW, etc.

Origin

The word ‘Hindu’ came into existence through Greeks who called the residence of the Indus Valley nation as ‘Indoi’. Later it became ‘Hindu’. This nation came to be referred as ‘Hindustan’ and its people as Hindu. The Hindu law has been changed through centuries and has been existing since the last 5000 years and has also continued to manipulate the social and moral figure of Hindu life by following the various elements of Hindu cultural life.

Who are Hindus?

All the members are Hindu except the person who are Muslim,Parsi,Jews and Christian.The term Hindu denotes all those persons who profess Hindu religion either by birth,by religion or by conversion.

LANDMARK CASES OF HINDU LAW:-

Shastri vs Muldas- In this case the term Hindu is defined. This case is connectedwith the Swami Narayan temple in Ahmedabad. There is a bunch of individuals known as Satsangi who were managing the temple and they restricted non – SatsangiHarijans from entering the temple. They argued that Satsangi are from different religion and not bound by Hindu law.

The supreme court of India held that the Satsangi, Arya Samajis and Radhaswami, of those belongs to the Hindu religion due to their origin under Hindu philosophy.

Perumal vs Poonuswami –In this case, Perumal was the father of Poonuswami who got married to an Indian Christian. Within the future due to certain differences, they were living separately. In the future, the mother of Poonuswami asked Perumal for the share of his properties. Perumal denied and said “marriage between a Hindu and a Christian is void”. The Supreme Court of India held that a true intention is sufficient evidence of conversion and no formal ceremony of purification is required (Conversion of Hinduism). So it’s not void and Poonuswami would get a share.

Sources of Hindu Law

Sources of Hindu Law has been classified into two parts:- Ancient sources and Modern sources.

1. Ancient sources-

It include religious text such as Shrutis and the Smritis, aside from that this source includes Commentaries & digest and Custom.

• Shruti – The word is derived from the root “shur” which suggests “to hear”. Shruti is claimed to be the major source of Hindu law. Another term for Shruti is Veda. It includes 4 vedas – Rigveda, Yajurveda, Samveda and Athravaveda. The brahmins used to pronounce whatever was written in these Vedas to the people. Since brahmins were considered to be most knowledgeable people, whatever they said was of supreme importance therefore shrutis contain what’s written and pronounced by the brahmins. It contains theories about sacrifices, rituals, customs.
• Smriti – Smriti is derived from the word “smri” which means to remember. Smritis are those parts of shrutis which the sages forgot to put in their original form and thus shrutis are considered to be the basis of smritis. There are 2 kinds of smritis – Dharmasastras and Dharmasutras. Dharmasastras contains the principles regarding the moral code of conduct for Hindus, whereas Dharmasutras contains the principles regarding the government, caste, the connection between people, economic affairs, eating habits, etc.
• Manusmriti – This Smriti is the oldest and most vital of all. It’s the compilation of all presmrities and gathas.

• Commentaries and Digest – They expanded the scope of Hindu law and played a serious role in developing the concept of hindu law. Single interpretation of the smritis is called as a commentary whereas Digest contains all the important aspect of smritis. Dayabhaga and Mitakshara are considered to be the most important commentaries.
• Custom – Customs are the most important and the oldest sort of lawmaking, customs mean the traditions, practices, activities that has been practised in society since past. This practice is under the continuous observations of individuals. Smritis has given importance to customs.

Indian Courts has  recognised the three types of customs viz:

(a) Local custom – these are customs recognised by Courts to have prevalent in an exceedingly particular region or locality.

(b) Class custom – these are customs which are acted upon by a specific class.

(c) Family custom – these  customs are binding upon the members of a family.  

2. Modern source–

After the advent of British many changes were brought in the personal laws of Hindus and many legislations were also passed, the modern sources of Hindu Law the doctrine of justice equity and  good consciousness, legislation and precedents.

• Equity and Good Consciousness –  Equity means fairness in dealing. These are the basic rules of law. This rule of law applies when an existing law doesn’t apply in a case where there was no proper law to settle the disputes, then the judges used to give judgments according to the concept of Equity and Good Consciousness. This doctrine played a major role in changing the personal laws of the Hindus.
• Precedents – Precedent means following the decision of the higher courts by the courts below it, if a particular case has already been decided, it seems reasonable to follow the same decision if the facts of the case are similar to the decided case. In today’s time, the decision of the supreme court is binding on all the decisions made by other courts.
• Legislation – The legislation means the acts of the parliament which have been playing a profound role in the formation of Hindu law. Some important Acts were passed by the legislature such as the Child Marriage Restraint Act, 1929, Hindu Succession Act, 1956, Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956. Legislation is codified this means it has been written in a proper way and it has to be accepted and followed by all the people. In modern times legislation is also called as the lawmaking body.

Conclusion

It has been seen that Hindu law has been critiqued for its orthodoxy, patriarchal character and does not bear a really modern outlook of society. There are many areas where the Hindu law must upgrade itself. It is often said that proper codification of Hindu law without room for ambiguity is that the need of the hour. There are many Smritis which are yet to be found consistent with Historians and lots of conflicts of opinions and interpretations have been arisen for the prevailing ones, thus creating a window of ambiguity under Hindu law. There are also several areas where Hindu law is silent. It is often said that where this sources of Hindu law are uninviting the Legislature could check out sources and customs of other religions and incorporate them into Hindu law if it caters to the necessity of the society and meets the test of the time.