ASSIGNMENT NO: 1 on FAMILY LAW: I

TOPIC: SOURCES OF HINDU LAW

Submitted By
D. VENKAT KRISHNA REDDY
Third year B.ALL.B

Submitted to
Prof. M.R PRIYANK JAGWANSHI
Assistant professor of law
DECLARATION:

I hereby declare that the research assignment no 1 titled SOURCES OF HINDU LAW carried
out

Under the guidance of M.R PRIYANK JAGWANSHI is a record of bona-fide research work

Undertaken by me in partial fulfilment for award 5 year B.ALL.B offered by Christ academy

Institute of law, Bengaluru. The said work is an authentic research and not submitted before

Any other university academic programs for the award of any degrees.

D.VENKAT KRISHNA REDDY

Reg No: 45419231019

B.ALL.B 5TH SEM

DATE: 13.01.2022

PLACE: BANGLORE
ACKNOWLEDGEMENT 

First and foremost, praise and thanks in the God, the almighty, for his shower of

             Blessings throughout my assignment to complete it successfully.

             

I would like to express my deep and sincere gratitude to my experience 

M.R PRIYANK JAGWANSHI, assistant prof., Christ Academy Institute of law Bangalore
for

Giving me the opportunity to work on this assignment. 

                    I am very grateful for his help throughout the assignment.

          Although, this report has been prepared with utmost care and deep routed   

                      Interest.  Even then I accept respondent and imperfection.

                                                                                    D. VENKAT KRISHNA REDDY 

                                                                                               B.ALL.B (B) 5thSEM 

                                                        
 CERTIFICATE

       This is to certify that the forgoing study by MR. VENKAT KRISHNA REDDY student
of

          Christ Academy institute of Law, Bangalore, in hereby approved as creditable

            Work on the topic “SOURCES OF HINDU LAW”.

Place:  Bangalore        

Date:  13-01-2022                                                         

                                                                                  

M.R PRIYANK JAGWANSHI

                                                                      (Assistant professor) CAIL, Bangalore

TABLE OF CONTENTS:

 Declaration

 Acknowledgement

 Certificate

 Table of contents

 Research methodology

 Research questions

 Introduction

 Sources of Hindu law

 Ancient sources

 Modern sources

 Conclusion

 Bibliography
RESEARCH METHODODLOGY:

This research is a doctrinal research with an illustration an explanatory approach the concept
has been substantiated with the relevant case laws and the researcher has made critical
analysis.

1. Library research
2. Primary and secondary sources (books, articles)

RESEARCH QUESTIONS:

1. What are the main source of Hindu law?

2. Whether ancient source & modern sources are primary in nature?
3. Whether the customs are useful for legal development?

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.

BIBLOGRAPHY:

1. Sources of Hindu law

https://www.scribd.com/document/404299529/Family-Law-II-Sources-of-Hindu-Law-docx

2. Concept of Hindu law religion

https://www.ukessays.com/essays/religion/examining-the-concept-of-hindu-law-religion-
essay.php

3. Sources of Hindu law student doc

https://www.studocu.com/in/document/university-of-lucknow/hindu-law/sources-of-hindu-
law/9291746