CHAPTER - III

SOURCES OF HINDU LAW

MEANING OF SOURCE OF LAW:

TRADITIONAL SOURCES AND MODERN SOURCES :

A source of law may be a literary source. In that sense we mean

by a source the quarter from which we must seek our knowledge of the law. A
source of law may mean the material source of law. In this sense we mean by a
source the method by which law is evolved. At the present day legislation and
judicial decisions are the material sources of law. In ancient times law was
developed by custom. Hindu law is of this kind. Custom is even at the present
day a material source of law. One requirement of a valid custom is that it should
be ancient. So custom has at present no significant law creative role. What law
had been created in ancient times by means of custom is to day enforced so long
as it is not opposed to legislation or rejected by judicial decisions. The ancient
Hindu legal system recognised four sources of law. The Vedas. The Smrities,
Custom and Self-satisfaction ie, good conscience. The Veda was regarded as of
paramount authority
The Smrities came next in order of preference and then custom. At the present
day the whole of Hindu personal law (other than legislation) is supposed to have
its authoritative basis only in custom or ancient usage.
TRADITIONAL SOURCES
THE VEDAS: THEIR CONTRIBUTION TO LAW:
Veda means Knowledge (from the root vid- to know). There are four vedas : Rig:
Yajur, Sama; and Atharva.
The four vedas are the fountain-head of Hindu religion and law. The oldest of
them is the Rig Veda Samhita (Collection of Hymn Veda) consists of 1028 hymns

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arranged into ten mandala (groups) some of which are subdivided into smaller
groups the compilation of each group being ascribed to some renowned saintly
poet-priest (Rishi) of ancient times.
Yajur Veda (sacrificial veda) is a liturgical arrangement of part of the hymns of
the Rig Veda, with additions, for intoning in the appropriate manner at sacrificial
ceremonies. This Veda contains passages in prose containing explanations and
directions for the guidance of the priests. It is grouped in two parts which are
known as the "Black Yaju" (Taittiriya Samhita) and White Yaju (Vajasaneya
Samhita).
The third Veda, Sama Veda (Chant Veda) is also a liturgical arrangement of
some of the hymns of Rig Veda and is intended to be chanted at particular
sacrifices in which the juice of the Soma plant (botanically known as the
Asclepias Acida or Sarcostemma Viminale) was the principal offering.
The fourth and last Veda, Atharva Veda, so called after the classes of priests
known as Atharvanas by whom it was compiled, has some hymns from the Rig
Veda along with original hymns of the same kind and consists chiefly of
incantations, spells, charms and exorcisms. These vedas contain the sacred lore
and esoteric knowledge of the Hindus. They came into existence long before
writing was invented but their text has been preserved and transmitted to us
unimpaired. This became possible for not only was the text memorised with great
accuracy but with a view to establish the text and prevent interpolations, every
word and syllable had been counted. We learn that the number of words in the
Samhita is 153, 826 and that of the syllables 432,000 contained in 10,622 verses.
The Vedic Religion as depicted in the Vedas is extremely simple, consisting of
worship of trinity of Gods the Fire-God Agni, the Rain-God Indra and the Sun-
God (Surya or Savita). There are other Gods such as Vayu (wind) Maruts (Storm
God) and Ushas (dawn). The head of the household is its spiritual representative
and leader, He lights the flame of the daily sacrifice singing the appropriate
hymns.

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The Vedas do not contain rules of law in a connected form. There are, however.
Vedic passages dealing with such topics as marriage, different kinds of sons,
adoption, partition, inheritance and Stridhana. The hymns of the Rig Veda as to
marriage are used even to this day.
The Taittiriya Samhita makes mention of Manu as having distributed his property
among his sons during his own lifetime. This Vedic passage is invoked later for
establishing an equal division of the paternal estate among the sons. The
exclusion of women from inheritance is also traced to a passage of the Taittiriya
Samhita which
speaks of women "destitute of strength" and so unfit to have any "portion" (of
the soma beverage). In this way there are incidental references in the Vedas to
topics which fall under the subject of law as conceived in modern times. There
is, however, no systematic treatment of law as such in the Vedas.
THE SMRITIS :
Next to the Vedas, the Smritis are the most important source of Hindu Law. THE
SMRITIS :
Next to the Vedas, the Smritis are the most important source of Hindu Law.
According to tradition the Vedas also called Sruti (What is heard) represent the
direct word of God as heard by the sagas while the Smritis (What was
remembered) represent what was recorded by the sagas in their own words of
what they had heard from the Deity.
The early smritis were termed as Dharma Sutras (800-200 B.C.). They were
mostly in prose form and were written by the teachers expounding Vedas for the
sake of their students. Gautama, Buddha yana, Apasthamba, Vasishta, Vishnu
and Harita are the main Dharma Sutra Karas. The later Smritis were termed as
Dharma Shastras which are more systematic expositions than Dharma Sutras. The
subject matter in these smritis is divided into Achara Vyavahara and Prayaschitta.
The principles of law are mostly covered under the part, Vyavahara.

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Manusmriti.-The oldest Smriti is the Manusmriti. The Code of Manu in its
present form of 2694 Slokas dates from 200 B.C. according to Max Muller. The
Code deals with many matters, but the part bearing upon law deals with the
subject under 18 titles; debts, pledges, sales, deposits, partnership, gifts, wages,
agreements, boundary, disputes, master and servant, husband and wife, partition
and inheritance, betting and gambling, assault, defamation, theft, robbery and
adultery.
Manu ordained that "Law is the king of kings" and he recognises the divine power
of kings to enforce the law through Danda. He gave importance to Custom as a
source of Dharma. In his various doctrines he was harsh towards women and
Sudras.
The Yajnavalkya Smrithi (2nd Century A.D.) which contains 1010 slokas is
divided into Achara (Ritual); Vyavahara (Secular) and Prayaschitta (Expiation),
Kandas or Parts. The Chapter on Marriage is found in Achara Kanda. In secular
law the Code deals with courts, procedure, ardeals, debts, pledges, partition, 12
kinds of sons, sales, defamation, assault, theft, and adultery.
Yajnavalkya Smriti provides that king was subordinate to Law though endoned
with power of Danda. Relatively he was less harsh towards women and Sudras
when compared to Manu.
In the sacred Books of the East, Vol. XXXII, it is pointed out that "In modern
Hindu Law as administered in the British Courts in the on of India, the smriti of
Yajnavalkya has become the guiding work for the whole of India. This position
is richly deserves by its concise but clear statement of Principles, its breadth of
vision and its impartiality towards the claim of both sexes and the different
varnas".
The paramount position of the Yajnavalkya smriti is largely due to the
commentary on it by Vijnaneshwara. This commentary known Mitakshara holds
sway throughout India. The Mitakshara school of law is paramount outside
Bengal. Even in Bengal the Mitakshara ranks next only to the Dayabhaga which

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is accorded primacy in that part of the country. For this reason the Yajnavalkya
smriti as expounded by Mitakshara holds a dominant position amongst the
various smrities. The Narada Smriti (4) Century A.D.) and Brihaspati Smriti
which Other smrities to which a reference may be made are deal largely with legal
subjects.
The Smriti of Brihaspati is fragmentary and has had to be complied from the
reference to that smriti in various commentaries on other smrities. Since
Brihaspati is referred to as smritikarta by Yajnavalkya, the smrities of Brihaspati
must be older than the Yajnavalkya smrithi. Narada smriti recognised the power
of the kings to make laws without going beyond the injunctions of Vedas. He
gave paramountcy to custom event overriding sacred Laws. He was liberal in
dealing with women and sudras.
DIGESTS OF HINDU LAW:
Several Digests and Commentaries were written on smritis during the period
between 700 A.D. to 1700 A.D.
For facilitating the administration of justice a code of Hindu law was prepared in
Sanskrit languaage by ten learned pundits during the time of Warren Hastings. It
was called Vivada Arnava Sethu (Bridge over the Ocean of litigation) and was
completed between 1773 and 1775. This was translated into Persian language
from which an English version was prepared by Halheid known as Halheid's
Gentoo Code. During the Governor-Generalship of Lord Cornwallis, Sir William
Jones, a great linguist, a Judge of the Calcutta Supreme Court, undertook the
translation of the sacred laws of the Hindus. In 1794 he translated the ordinances
of Manu. Under his direction Jagannadha Tarka Panchanan (Jagannadha, the lion
of dialectics) prepared a digest of Smriti writings called Vivada Bhangarnava
(ocean of solved legal problems). Jones intended to translate this work, but died
before he could do so. The translation was made by Colebrooke. It was very
useful to the British in the early days of the administration of justice in this
country. The British Judges were assisted in the administration of justice by

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native pundits, who gave their opinions on the Dharma Sastra law applicable to
the Hindus. This system was abolished in 1864 as the English Judges felt that
they could administer the native laws without the assistance of the pundits.
CUSTOMS AS A SOURCE OF HINDU LAW:
(a) Authority of Custom :- Manu recognised custom to be transcendent law:
ACHARAHA PARAMODHARMAHA
Yajnavalkya defines custom as "That which a person practices whether it is
Dharma or not, because it is the usage of the country"
He definitely says that a person should not practice even what is ordained by the
Smriti if it is opposed to custom.
The Privy Council also has recognised the supreme authority of custom in Hindu
Law, In the famous Ramnad ase, 12 MIA 397, the arose whether in the Dravida
country (South India) a widow could make an adoption even in the absence of
express authority from her husband. Examples such customary practices were
given to show that with the authority of deceased husband's Sapindas a valid
adoption could be made by the widow. The relevant text of the Sage Vasishta was
to the effect that a woman should not adopt except with her husband's permission.
The Privy Council pointed out that it was not open to the judges to embark upon
an independent enquiry into the meaning of the Dharma Sastra text.
(b) Different kinds of custom :
Local Custom :- This is a custom prevailing in a particular locality. The Ramnad
Case dealt with a custom of this kind. In the Dravida country it was proved in that
case that widows can adopt but that they can do so only with the consent of the
deceased husband's Sapindas. Other customs of this kind are encountered in the
law of the marriage. In the South the rule as to prohibited degrees in marriage is
considerably relaxed by custom.
Thus marriage of the maternal uncle's daughter and paternal aunt's daughter are
permitted.

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(ii) Family Custom : A Custom may govern only one particular family. Thus the
incidents of impartibility and devolution by primogeniture of certain Zamindars
were attributable to family custom.
iii) Caste Customs :- There are some customs which prevail among particular
castes, e.g., Brahmins, Sudras etc. Thus in the law of adoption, among Brahmins
a Homam is necessary for adoption but among Sudras giving and taking of the
boy is sufficient.
Essentials of Custom:-A valid custom has to satisfy the following legal
requirements –
1. Antiquity:- A valid custom should be ancient In Ramalakshmi e
Savanatha, , the Privy Council observed: "It is of the essence of special
usages modifying the ordinary law of succession that they should be
ancient and invariable and it is further essential that they should be
established to be so by clear and unambiguous evidence" In that case a
zamindari was claimed by two sons by different wives of the late
zamindar. One claimant rested his claim on the ground that he was born
earlier. The other claimant rested his claim on the ground that his mother
was married earlier to the zamindar than the mother of his rival claimant.
The question was whether priority in birth of sons or priority in the
marriage of the mother was to govern succession to the estate. The
statements of several zamindars were examined as evidence but it was
insufficient to prove the existence of an ancient and invariable custom in
the district. The general custom of the first-born taking the impartible Raj
was given effect to as the family custom of devolution upon the eldest son
of the senior most Ranis was not proved.

2. Certainty :-- The evidence must establish unambiguously the usage set up.
The decision in Ramalakshmi case above considered shows that when the
evidence is conflicting a uniform custom is not established.

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 3. Reasonableness :Unreasonable customs which are contrary to public
policy are rejected by courts. Thus in Budansa Rowthar v., a custom of
polyandry allowing a woman to re-marry during the life-time of her
husband was held to be immoral. Customs permitting dancing girls to
adopt daughters for bringing them up as prostitutes are also immoral. The
Privy Council held that a custom permitting the sale of the office of a
temple trustee is repugnant to public policy and is void.
4. Discontinuance : - Family Customs which are applicable only to particular
families may be discontinued. Disuse puts an end to them. Thus in
Abraham v. Abraham, the Privy Council pointed out that when a Hindu is
converted to Christianity, it is open to him to continue the Hindu Law as
a family usage. He may also give up this usage and adopt the customs of
the community to which he has attached himself as a result of conversion.
So he may governed by Christian law at his option
The following can be considered as modern sources of Hindu Law
1. JUSTICE, EQUITY AND GOOD CONSCIENCE:Law:
It was maintained even under smritis that one's own satisfaction Dharma. It was
also ordained that any decision should be arrived based upon Yukti or Nyaya.
These aspects amply cover under Ancient law the modern concept of justice
equity and good conscience.
The common law tradition of applying the principle of "Justice, equity and good
conscience". When the law is silent on a given point was conveniently applied by
the Britishers in their administration of justice in India. Afterwards the Supreme
Court of India recognised that in the absence of any rule of Hindu Law the courts
have authority to decide cases on the principle of "justice, equity and good
conscience.
Some reformative legislation to satisfy growing public opinion were passed
during this period. Thus, Hindu Widows Remarriage Act, 1856, Child Marriage
Restraint Act, 1929, Hindu Inheritance (Removal of Disabilities) Act, 1928,

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Hindu Women's Right to Property Act, 1937; Arya Marriage Validation Act,
1937 and the like were passed. An effort to codify the law relating to Hindus was
made during 1941 by appointing a committee which recommended gradual
codification of Hindu Law starting with intestate succession. However during
1955-56 four major Acts governing the Hindus were passed. They are
the Hindu Marriage Act, 1955;
the Hindu Adoptions and Maintenance Act, 1956;
the Hindu Minority and Guardianship Act, 1956; the Hindu Succession Act,
1956.
2. PRECEDENT :
Binding nature of previous judicial decisions on a subsequent
similar case is of modern origin came into vogue during British period. Their
Lordships of the Privy Council expounded and evolved the principles and rules
on varied complex and complicated subjects of Hindu Law through their
decisions. This had facilitated easy understanding and ascertainment of principles
of Hindu Law without referring to complicated Scriptural source and has given
scope for adapting new suitable principles of Hindu law from relevant British
concepts and doctrines. The principle of Stare decisis is applied by the Indian
courts. The decisions of the Supreme Court are binding upon all courts except
upon itself and of the High Court on all of its sub ordinate courts.
3. LEGISLATION:
Legislation is a vital source of modern Hindu Law. During British period, only
very few legislations were passed touching personal laws of Hindus, in tune with
the British policy of non-interference in the matters of personal status of native
Indians.
TEST QUESTIONS
1. Estimate the contribution of the Vedas to positive law.
2. What are the important Smrities and how far do they serve
as sources of law?
3. What are the essentials of a valid Hindu custom?

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4. Explain the importance of custom in Hindu Law pointing out:
(a) The different kinds of custom (b) Essentials of a valid custom
(c) The effect of discontinuance of a custom / (d))

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