HINDU LAW

Introduction

The phrase “source of law” has several connotations. It may be the authority which issues rules
of conduct with are recognized by courts as binding. In this context, ‘source of law’ means ‘the
maker of law’. It may means the social conditions which inspires the making of law for the
governance of the conditions. In this context it means ‘cause of law’. It may also the expression
means the ‘evidence of law’ and it is in this sense that the expression ‘source of law’ is accepted
in Jurisprudence.

Vijnaneshwar ( commentator on the Yajnavalkya Smriti and founder of Mitakshara School) has
called it Jnapak Hetu i.e., the means of knowing law. It is important to study the sources of law
because in every personal legal system only that rule is law which has place in its sources. A rule
laid down or not recognized in the sources is not a rule in that legal system.

The word ‘Hindu’ first appeared in the old Persian language which was derived from the
Sanskrit word sindhu, the historic local designation for the Indhu River in the North-Western
part of the Indian subcontinent. A Hindu is an adherent of Hinduism.

Hindu law is a set of personal laws governing the social conditions of Hindu ( such as marriages
and divorce, adoption, inheritance, minority and guardianship, family matters, etc). It is not
Hindu alone who must follow Hindu law but there are several other communities and religious
denominations that are subject to its dominion such as Jains, Buddhists, Sikhs, Brahmo-
Samajists, Prarthana-Samajists, the Virashaivas and Lingayats and the Samajists, the Virashaivas
and Lingayats and the Santhals of Chhota Nagpur besides others.

In Sir Dinshah F.Mulla’s principles of Hindu Law’. The learned editor has defined ‘Hindu Law’
in the following words: “ Wherever the laws of India admit operation of a personal law, the
rights and obligations of a Hindu are determined by Hindu Law, i.e. his traditional law,
sometimes called the law of his religions, subject to the exception that any part of that law may
be modified or abrogated by statute.” Law as understood by Hindus is a branch of d
SOURCES OF HINDU LAW

The sources of Hindu Law can be classified under the following two heads:

1. Ancient Sources

Under this would come the following

i. Shruti
ii. Smriti
iii. Digests and Commentaries and
iv. Custom

2. Modern Sources

Under this head would come:

i. Justice, equity and good conscience

ii. Precedent and
iii. Legislation

Ancient Sources of Hindu Law

i. SRUTI

Hindu Law is considered to be divine, a reveled law. The theory is that some of the Hindu sages
had attained great spiritual heights, so much so that they could be in direct communion with God.
At some such time, the sacred law was revealed to them by God himself. This revelation is
contained in Srutis i.e “what was heard” or Vedas. The Vedas thus contain the divine revelation.
The term Sruti stands for four Vedas viz the Riga, the Yajura, the Sama and the Atharva, along
with their respective Brahamanas. The Brahamanas are like appendices to the Vedas which were
added later on and deal with various ceremonies, rituals and sacrifices. Since the Vedas are said
to contain the voice of God, they are considered to be the fundamental source of law and primary
source of all knowledge. The importance of Sruti as a source of positive law is doubtful. One
view is that the Vedas contain practically no law and are of little value. The Vedas contain
passages alluding to Brahma, Asura and Gandharva forms of marriages, to the necessity of son,
to the inclusion of women from inheritance.” The Vedas and they are to be gathered from it’s
entire body, yet it would be wrong to say that the Vedas are totally devoid of law.

The approximate period of the Vedas is now accepted to be 4000-1000 B.C. The Vedas depict
the way of life of our early ancestors. This is the period when the Vedic Aryans after trekking
into the rich and fertile lands of Punjab and the Doab had settled down. They constituted an
essentially pastoral cum agriculturist society. They had a tradition of civilized life and rich
thought. These Aryans were a vigorous, robust and unsophisticated people. They were engaged
in the pursuit of all that the life and the rich land could offer them. At that time two sets of rules
existed:

 Rules of Customary Law – These rules deal with rights and duties, with and wrong,
though it seems that the emphasis was more on duties and obligations than on rights. It
was Dharma which was practiced, and Dharma signified the privilege, duties and
obligations of a man, his standard conduct as a member of the Aryan community, as a
member of one of the classes (Varna) and as a person in a particular stage of life
(Ashram).

 The Aryans invoked the law of divine wisdom by which, according to their belief, all the
things on earth and heaven moved and were governed. Thus the appeal was to the divine
law. The Vedic Aryans believed that the soul is immortal and the baby is mortal and
perishable. According to them the soul of a being suffers or enjoys in the next birth in
accordance with bad or good Karmas that he had done in this world.

 The yajna was considered as a way of attaining salvation. To agni the Vedic Aryan
offered everything that was dear to him, ghee, butter, milk, corn and cattle so that he
could enjoy the life not merely in this world but in the next world also.
  According to them, a man could attain salvation, could return to Brahma by doing all his
Vedic Karmas, by doing all his duties and by performing all his Yajnas. Thus it was
karma or action which was emphasized.

 In sum, the Sruti depict the life of our early ancestors, their way of life, their way of
thinking, their customs, their thoughts but doesn’t deal with rules of law in any
systematic manner. Whatever rules of law exist, they have to be deduced from the vast
material contained in the four Vedas. Kane says that the Vedas do not profess to be
formal treatises on Dharma; they contain only disconnected states on various aspects of
Dharma; we have to turn to Smritis for a formal and connected treatment of the topic of
Dharmashastras.

ii. SMRITIS

Smriti literally means “what has been remembered”. In theory the Smritis are base on the
memory of the sages who were the repositories of the sacred revelation. The Smritis may be
divided into early Smritis or the Dharmasutras and later Smritis or the Dharmashastras.
Immediately after the Vedic period, the needs of the society which had made a progress from
agro pastoral society. There was a transition from Samhita Charanas or Sutra Charans. Of the
Sutras composed during this period, some were reduced into writing. The sutras consist of the
trilogy of Shruta (Sacrifices), Grihya (ceremonies relating to domestic fire) and samayacharika
i.e aphorisms on law and custom dealing with temporal duties of men in their varios relations.
The samayacharika is also known as the Dharmasutras.

Dharmasutra – They were mostly written in prose, though some of them were written both in
prose and verse. They generally bear the names of their authors. In some cases the Shakha or the
school to which the author belonged is also indicated. The period of Dharmasutras is reckoned to
be between 800 and 200 B.C. the main Dharmasutrakars are Gautama, Baudhayana, Apastamba,
Harita, Vasistha and Vishnu.

They deal with the duties of men in their various relations. They do not pretend to be anything
more than the compositions of mortals based on the teaching of the Vedas, on the decision of
those who were acquainted with law, and on the customs of the Aryans. Composed in different
parts of the country and at different times, they did not present any anomaly, but tended to slide
into each other. Most of the Dharmashastras mingled moral and religious precepts with secular
lae. The autors of the Dharmashastras took the law from earlier Gathas an Sutras and custom
which had grown up bit by and reduced them to some order and symmetry.

 Gautama – He belonged to the Sama Veda school. Gautama’s Dharmasutra is considerd

to be the oldest of the extant Dharmasutras. Written in prose, it deals extensively with
legal and religious matter and inheritance, partition and stridhan. Hardatta (12th century
AD) wrote a commentary called the Mitakshara on the Gautama Dharmaustra.

 Baudhyana – he belonged to the Krishna Yajurveda School. The Baudhyana

Dharmasutra is not available in it’s integrated form. It deals with numerous subjects,
including marriage, sonship, adoption and inheritance. He also refers to customs of his
region, such as custom permitting marriage with one’s maternal uncle’s daughter. He
also refers to the custom of people living in the North and to the custom and excise
duties.

 Apastamba – Apastamba Dharmasutra is the east preserved extant Sutra. He also

belonged to the Krishna Yajurveda School. He very forcefully rejected cetain practices
like the Niyoga and Paisacha and Prajapatya forms of marriage. He also did of
recognize secondary sons, not even an adopted son. He emphasized that the Vedas were
the source of all knowledge.

iii. DIGEST AND COMMENTARIES

The need for further analysis, systemization and assimilation of law was satisfied by the
commentators and digest writers. The commentaries and digests cover a period of about one
thousand years from 700 A.D to 1700 A.D. The last of the commentaries is by Nanda pandit on
the Vishnu Dharmasutra called the Vaijayanti, written in the 17th century. Till the 12th century,
we find that the general tendency was to write commentaies (tika) on a particular Smritis, but
from the 12th century onward the trend was to write Digests (nibandha) on several Smritis, and
thereby to attempt to synthesise all the topics in the Smritis. The authors of the commentaries
and digests assumed that the Smritis constitute a single body of law, one part of which supplant
the other; every part of which, if properly understood, is capable of being reconciled with the
other. They modified and supplemented rules in the Smritis, in parts by means of their own
reasoning and in part in the light of usages that had grown up.

In the apt words of Mr. Justice Desai, “if the productive era of the Dharmashastras was the
golden age of Hindu law, this was the period of critical inquiry, expansion and consolidation.”
The Privy Council said, “the commentaries, while professing to interpret the law as laid down in
the Smritis, introduced changes in order bring it into harmony with usage followed by the people
governed by the law: and that it is the opinion of the commentators which prevails in the
provinces where their authority is recognized. In the event of a conflict between the ancient text
writers and the commentators, the opinion of the latter must be accepted.”

It is noteworthy that apart from some who wrote their works under the patronage of kings or at
their instance, most of the commentators worked of their own without claiming any authority,
delegated or otherwise. Yet, their works assumed paramount importance, such was the
excellence attained by them.

COMMENTARIES ON MANUSMRITI

 Medhatithi – the approximate date of this commentary is 825 – 900 A.D. this is earliest
extant commentary on the Manusmriti. On the whole, Medhatithi’s comments are
dependable and instructive, although at times he engages in caustic subtlety. Most of his
broad propositions are the result of his reflective generalization. He is perfect master of
the Mimansa rules, and his legal acumen is admirable. At times, he resorts to general
propositions and exposes himself to the attack of begging the question. The name of his
commentary is the Manubhashya.

 Govindaraja – the Manutika was written in 11th or 12th century A.D. according to Dr.Jolly
the work is very useful for the interpretation of the text as it contains a full paraphrase of
the text and is marked by conciseness of expression and philological accuracy. Mr.
 Justice Desai says: “there is not much subtlety in the work though there is depth. He is
particularly analytical and pedestrian but sound in his exposition.”

 Kulluka Bhatta – The Manvarthamuktavali by Kulluka is the most famous of all

commentaries on Manu. According to Kane, “Kulluka’s commentary is concise and lucid
and remarks are always to the point. He avoids all unnecessary discussion and is never
prolix. He was however, not original. He drew upon the commentaries of Medhatithi and
Govindaraja and incorporated a great deal from them into his work without
acknowledgement.”

 He frequently pours ridicules on Govindaraja and is critical on him and Medhatithi.

Kulluka’s exposition on the whole is better than the involved commentaries of others. It
cannot be gainsaid that he was a legist of the first rank. His forte was an ability to reduce
difficult rules to the simplest language. There is no obscurity about his style. Though a
master of his subject, he is not altogether free from sophistry in his reasoning. According
to Kane, his work belongs to about 1250 A.D.

IV. CUSTOM

After the law reduced into writing by the Smritikars, the process of legal development was
carried on by Digest and commentaries. The digest writers and commentators in their turn further
incorporated the existing custom. In the process, some of the custom of the times were
incorporated into the rules. But this incorporation was not always a faithful translation of
customary rules into principles of law.

The customary rules were modified to suit the needs of the time and also to suit the philosophy
of the times. Yet, neither the Smritikaras nor the digest writers and the commentators ever
claimed to incorporate custom. They specifically left an area open to custom by saying that the
king should decide a dispute in accordance with custom. They said that the four legs of law were
Dharama, Vyavahara, Charitra and Rajya Shasna and the latter prevailed over the preceding. At
the lower rung of judicial adminstratio disputes were mostly decided on the basis of custom. But
at the lower rung, the fundamental tenets of the Shastra seldom came into conflict with custom.
  Origin and nature of custom
 Requirement of a valid custom

Kinds of Customs

There are three types of customs

1. Local Custom
2. Family custom
3. Caste or Community

MODERN SOURCES OF HINDU LAW

i. Equity, Justice and Good Conscience

The ancient Hindu law had its own version of doctrine of equity, justice and good conscience.
According to Gautama, “in cases for which no rules is given, that course must be followed of
which at least ten persons who are well instructed, skilled in reasoning and free from
covetousness approve.” According to Brihaspati, “no decision should be made merely
exclusively according to the letter of the Shastra, for in a decision devoid of a yukti, failure of
justice occurs.”

Yajnavalkaya said that when on amatter there were conflicting rules of law, the matter should be
decided on the basis of Nyaya ( natural equity and justices). Katyayana also said that whatever is
inconsistent with equity and justice, that be avoided. In his mimansa, Jamini propounded the
doctrine of aridesha i.e., where a principle has been laid down with reference to a case it could be
applied to analogous cases. Thus it seems that Nyaya and Yukti were used merely not to fill the
lacunae in the sacred law but also to overrule sacred law whenever it is found to be irksome or
against conscience. The principles of nyaya and yukti were used to mitigate the rigour of law. In
the words of Mr. Justice Desai, “it does appear that the unified legal system arrived at by the
Smritikaras envisages a department oraspect of law which would permit, within limit,
interpretation of the sacred texts by resorting to something akin to what the modern lawyer at
time does when he appeals to the equity of the statute.”

In this modern version, the equity, justice and good conscience as a source of law owes its origin
to the beginning of the British administration of justice in India. The charters of the several high
courts established by the British government directed that when the law was silent on a matter
they should decide the cases in accordance with justice, equity and good conscience. Justice,
equity and good conscience have generally been interpreted to mean rules of English law on the
analogous matter as modified to suit the Indian conditions and circumstances. Thus we find there
is an area of Hindu law, where rules of Hindu law and English law have been blended together or
where the rules of English law have been grafted on the rules of Hindu law. This has been done
in those cases where rules of Hindu law have been considered wanting or too rigorous or not
consonance with justice or equity.

ii. PRECEDENT

We know practically nothing of the judicial decisions of ancient times. The doctrine of Stare
Decisis and precedent are essentially a gift of the British Administration of justice in India.
Precedent is also called to be a source of Hindu law in two senses:

First, practically all the important principles and rules of Hindu law have now been embodied in
case law. In such matters, recourse to original sources is not necessary. Reference to leading
decision is enough.

Secondly precedent is a source of law in the sense that by the process of judicial interpretation,
doctrines, principles and rules of law stand modified or all together new principles, doctrines the
source of authority is a precedent. It is in this second that we are concerned with precedent as a
source of Hindu law.

During the British rule, although the legislative machinery existed, for several reasons, it use to
modify Hindu law was made sparingly. Then the only machinery available to carry forward this
process was the judiciary which is professedly not a law making authority, though, it is now
accepted that in the process of interpretation, judiciary does make law.
The difficulties of English judges administering the Hindu law were great and many. They did
not know the language of the Dharmashastras and they could not comprehend the spirit of Hindu
law. At that stage of understanding of Hindu law, it was difficult for the English judges to
grapple with a system of law in which legal obligations were co extensive with moral and
religious obligations. It was initially difficult to comprehend the distinction between mandatory
and recommendatory injunctions; it was difficult to make a clear distinction between the rules of
positive law and rules of morality. However, this is not to belittle the role of courts and
particularly of the Privy Council, as the highest court of appeal, in the development of Hindu
law. In the words of Mr. Justice Desai, “with their mastery of jurisprudential concepts and their
unmatched forensic abilities to expound and elucidate even the most complicated matters of
unfamiliar laws affecting the personal status of parties, their Lordship of Privy Council evolved
principles and laid down rules on varied and complex subjects in their own unique style and
generations of lawyers and judges in this country have acknowledged their indebtedness to that
august tribunal for the lead and guidance given by it.

Today, the doctrine of stare decisis is a part of Hindu law. Supreme Court’s decisions are binding
on all courts, though Supreme Court is not bound by its own decisions. The decision of State
High Courts is binding on all subordinate courts though decisions of the High Courts are not
binding on each other.

iii. LEGISLATION

Legislations is a modern source of Hindu law. As a matter of policy, Government during the
British rule was slow and cautious to change Hindu law to legislative intervention. However the
legislature modifications till August 15, 1947 are not insignificant. Some of the statutes which
have effect modification in Hindu law, either by reforming Hindu law or by superseding rules of
Hindus, may be noted here.

The earliest statute was passed in 1850, the Caste Disabilities Removal Act. It was followed by
Widows Hindu Remarriage Act, 1856, Hindu Gains of Learning Act, 1930, Hindu Inheritance
(Removal of Disabilities) Act, 1928, Hindu law of Inheritance (Amendment) Act, 1929, Hindu
Women’s Right to Property Act, 1937, Arya Marriage Validation Act,1937, Hindu Women’s
Right to Separate, Maintenance and Residence Act 1946, Hindu Marriage (Removal of
Disabilities) Act, 1946, Hindu Marriage Validity act, 1949.

The Hindu law was reformed and modified to some extent. But these reforms were half hearted
and piecemeal. Piecemeal reforms have their own drawbacks. One result of these piecemeal
reforms was that, though reforms were introduced to change some aspects of Hindu law, their
implications on other aspects was overlooked

Example

The Hindu Women’s Right to Property Act, 1937, was passed with a view to granting property
rights to women, but its repercussion on the law of oint family was overlooked. The result was
that these piecemeal reforms solved some problems but created others.

CONCLUSION

It has been seen that Hindu law has been critiqued for its orthodoxy, patriarchal character and
does not bear a very modern outlook of society. There are many areas where the Hindu law
needs to upgrade itself.

Example

The irretrievable breakdown theory as a valid ground for divorce is still not recognized under
Hindu Marriage Act, 1955, and even the of Supreme Court have expressed their concern on this.

The most valid concern is that the very definition of a ‘Hindu’ is still not given in any of the
sources. Statutes give only a negative definition which does not suffice the test of time. The very
proponent that Hindu law is divine law has been challenged by scholars and athesists.

There are many Smritis which are yet to be found according to Historians and many conflicts of
opinions and interpretations have arisen for the existing ones, thus creating a window of
ambiguity under Hindu law. There are also several areas where Hindu law is silent.

Most of the ancient sources of Hindu law is written is Sanskrit and it is well known that in the
present ties there is a dearth of Sanskrit scholars. There is hardly any importance left of the
ancient sources since the time the modern sources have emerged and been followed.
It can be said that proper codification of Hindu law without room for ambiguity is the need of the
hour. It can be said that where the present source of Hindu law are uninviting the Legislature
Could look into sources and customs of other religions and incorporate them into Hindu law if it
caters to the need of the society and meets the test of time.