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Sources of Family Law
Sources of Family Law
Introduction
India is a country that comprises of people following different religions. It is obvious that
when it comes to governing them, religious beliefs of the people cannot be ignored, but the
question is what all things should be considered as law and what not, not only this which all
sources should be looked upon while framing laws in order to govern people of different
religions. The two major religions in India are Islam and Hinduism. Apart from that, there is
a considerable amount of population comprising of Sikhs, Buddhists, Jains, and Christian.
Therefore it is necessary to examine all the sources which are looked upon before framing
laws affecting the lives of people especially their personal matters like divorce, marriages,
inheritances, etc.
Hindu Law
Hindu law is nothing but the concept of dharma, the concept of dharma in Hindu law is not
defined precisely but it has come to mean the way of life a person lives and enjoys, which
includes every aspect of his life. Right from the birth till the death of a person everything is
included and governed by dharma. In other words, dharma is sometimes said to be the
guiding force for all the Hindus. It contains rules regarding the proper conduct of people, it
preaches love for everyone and contains the duties that every individual has towards the
society as a whole. Dharma also was the major law which the kings of ancient times,
especially the Hindu kings used to govern the people. All the laws which were passed had to
be in conformity with the dharma, in simple terms the king was not above dharma and had to
rule according to dharma.
Ancient sources include religious text such as shrutis and the smritis, apart from that there are
various Upanishads which also were a part of Hindu law.
Shruti as a source of law
Shruti means to hear, it is derived from the word “shur” which means to hear. Shrutis are
considered to be the major source of Hindu law. Another term for Shruti is Veda. according
to Hindu law, there are four Vedas namely, Rigveda, Samveda, Yajurveda, Atharveda. The
brahmins used to pronounce what is written in these Vedas to the people. Since brahmins
were considered to be knowledgeable people whatever they said was of supreme importance
and it was considered to be the law of the land, therefore shrutis contain what is written and
pronounced by the brahmins. Brahmins also tell us about the duties that the individual has to
follow and how to perform these duties. The Upanishads contain the essence of these duties.
Smriti is derived from “smri” which means to remember. Smrtis are those parts of shrutis
which the sages forgot to tell in their original form and therefore wrote down in the language
which they were familiar with, therefore shrutis are considered to be the basis of smritis.
There are 2 kinds of smritis first is Dharmasastras and the other is Dharmasutras.
Dharmasastras contains the rules regarding the moral code of conduct for Hindus, whereas
Dharmasutras contains the rules regarding government, caste, the relationship between
people, economic affairs, eating habits, etc. There are many smritis that one can not count but
the two famous smritis are Yajnavalkya smriti and manusmriti. Manusmriti is also considered
to the first law book written by Manu.
The third most important source of law is the digests and the commentaries written by
various authors of Hindu law. Commentaries generally comment on the smritis, the area of
commentaries is from the 7th century to 1800 AD. Commentaries also laid the foundation of
various schools of Hindu law. Digests contain the important aspects of all the smritis and
discussed their reconciling and contradictions. Various digests and commentaries have been
written by various authors on the two most famous smritis that is manusmriti and yajnavalkya
smriti namely.
On manusmriti
On yajnavalkya
Customs
Customs are the most important and the oldest form of lawmaking, customs mean the
traditions, practices, activities, that people have been following for generations and overtime
recognized as law. The essence behind considering customs as a major source of law is that
since people follow customs and if some customs are not harmful to society then the state has
no problem recognizing it. In order, that a custom becomes law there are some essentials
which it may fulfill such as a custom must be valid, it should be in continuity, it should be
followed by a large number of people and last it must not be discriminating and should not be
opposed to public policy.
1. Local customs- These are the customs that are prevalent in a particular local area.
2. Class customs- These are the customs that are prevalent amongst a particular class.
3. Family customs- These are the customs that are binding on the members of the family.
In cases where there was no proper law to settle the disputes nor there was an existing law,
then the judges used to give judgments according to the concept of Justice Equity and Good
Consciousness. This doctrine was based on the concept of fair play, this doctrine did not have
a uniform application since thinking of one judge may be different from the other, however,
this doctrine played a huge role in transforming the personal laws of the Hindus.
Legislations
The legislation means the acts of the parliament, various Acts were passed by the legislature
such as the Child Marriage Restraint Act, 1929, Hindu Successsion Act, 1956, Hindu
Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956. The legislation passed is
binding upon all the other sources of law.legislation is codified this means it has been written
in a proper way and it has to accepted and followed by all the people governing it. In modern
times legislation is also called as the lawmaking body.
Precedents
After the establishment of British rule, courts were established and the hierarchy was
introduced. 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 made by other courts.
1. Mitakshara school
2. Dayabhaga school
Mitakshara school
Mitakshara school derives its name from the commentary of Vijyaneshwara named
Mitakshara. Mitakshara school contains rules regarding marriages, division of society into
four castes, apart from this it contains rites and rituals that are to be performed during
pregnancy, all these rites and rituals are considered sacred. Mitakshara school prohibits the
marriage between a shudra and a brahmin, inter-caste marriages are allowed amongst the
upper caste only.
Banaras school
It is prevalent in North India expect the rural areas of Punjab, where this school has been
modified according to the customary laws.
Mithila school
Bombay school
This school was prevalent in western parts of the country mainly Gujarat and Maharashtra.
This school covers the whole of southern India including Karnataka, Tamil Nadu, and
Andhra Pradesh.
Dayabhaga school
Dayabhaga school is prevalent in Bengal and Assam. Dayabhaga school professes benefit for
the governance of the rules of succession.The immediate effect of this school was that there
was an inclusion of many new people in the list of hires for succession which was not
mentioned in Mitakshara school. Dayabhaga school preaches logic and reason rather than
precepts and precedents. This school advocate for more practical and rational doctrines.
Quran which is the holy book for Muslims and is the main source of Islamic law. Quran is
said to contain the direct sayings of Allah through his messenger Muhammad.Quran contains
the rules and regulations regarding the conduct of Muslim people and various socio-economic
laws. Quran was compiled soon after the death of Muhammad. Quran is not a legal textbook
as it only contains the rules regulating man’s conduct with himself and God.
Sunnah
After the Quran the main source of Islamic law is the Sunnah, Sunnah contains the sayings of
Muhammad, his daily activities, his prayer and his way of life. Since Muhammad is
considered to be the perfect human being therefore whatever he says, does or advocates to
perform becomes law for the other people. Quran is essentially a religious book and therefore
it does not contain the legal and practical rules and therefore Muslims refer to sunnah on
issues where the Quran is silent or does not have proper regulation.
Secondary Sources
Ijma
Ijma is considered to be the third most important source of Islamic law, ijma refers to the
consensus among the learned Muslim jurists on a particular legal issue. However, there has
been a discussion among various jurists whether to consider Ijma as a primary source of law
or a secondary source of law. The Sunni jurists consider Ijma as an important source of law
for making legislation, whereas the Shia jurists consider it as a secondary source.
Qiyas
Qiyas is the analogical deduction and is a secondary source of Islamic law. It means deciding
cases according to reason, many Islamic jurists point towards the validity of Qiyas as a
primary source of law by citing the Quran, as Muhammad in the Quran has said that if he is
not able to resolve the dispute through a proper injunction then, in that case, he shall use his
reason to solve it. The main principle behind the concept of Qiyas is that since every
injunction is based on some benefit of the people, thus if a cause of injunction is taken from a
primary source then the analytical deduction can be applied to cases with similar causes.
The Hanifa School is the most popular school of thought among the other four schools of
thought. It is majorly followed in North India, out of the four schools of thought Hanifa
school of thought is much more liberal towards the non muslims, the Hanifa school of
thought gives greater importance to the rational deduction.
The Maliki school of thought is the second largest school of Islamic jurisprudence when it
comes to the percentage of its followers. This school is followed by at least 25% of the
Muslim population. This school of thought is predominantly different from other schools of
thought when it comes to sources to derive its sayings, however like other schools, the Maliki
school of thought also Quran as the major source of Islamic law. The only thing which differs
this school from the other school of thoughts is that, it also considers the practises followed
the people of Medina as an important source of Islamic law as Muhammad was born in
Medina, lived there, formed a government there and died there Another major difference
between Malki and other schools is in the way people offer prayer, according to the of Maliki
school during prayer the hands should be kept at side but this is not same in the other schools.
The Hanbali school of thought does not have great followership, still, it is an important
school of Islamic jurisprudence. It is considered to be the most orthodox schools of Islamic
jurisprudence as it wants to the strict implementation of the Quran and the sayings of
Muhammad, however it is considered to be one of the most liberal schools when it comes to
trade or for commercial purposes. The current set of individuals who believe in Wahabism is
influenced by this school.
The Shafi school of thought is mostly followed in Yemen, Sri Lanka, Indonesia, and
Palestine. It considers the Quran, Ijma, Sunnah, and Qiyas as the major source of Islamic law,
however, it relies less on qiyas while trying to construct its sayings. Apart from this it also
considers the sayings of Muhammad’s close companionship as a source of Islamic law.
The Holy Bible is made up of books that were written over a period of 1000 years. It contains
letters, history, genres, and poetry. The Bible can be divided into two sections: the first is the
old testament and the second is the new testament which contains the life of Jesus and the life
of early Christian society. some Christian consider every word of the Bible correct whereas
some consider the literature as the major ground for a moral foundation.
Traditions
Initially, traditions were interpreted as the teachings of Jesus Christ to his followers and then
the followers recited the teachings to the Christian people, today it has come to be associated
with the approaches that guide the of different Christian groups. Orthodox Christians gave
high importance to traditions.
Reasons
Reasons like tradition have very high importance among the Christians, it is sometimes used
to get an understanding of the Bible, there might occur situations when Bible and Traditions
might come in conflict with reasons but for that reason would be neglected.
Experiences
Conclusion
In India, since there are so many religions it is not possible to have a common source for the
personal laws of different communities and therefore different sources have to be approached
while making laws for people who follow different traditions. Although my personal opinion
is a bit different. When you have different laws governing people of the same nation it leads
to nonuniformity. For a nation to develop you need uniformity and considering the various
laws of different countries we find our law is much suited to the social conditions of India.
One of the major aims of law is to command obedience and there is no better way to demand
obedience by making people follow their own traditions which they have been following for
centuries.