bdc4fsources of hindu law

8/19/2019 Bdc4fSources of Hindu Law

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Sources of Hindu Law

Hindu LawFrom thousands of years people living in the Indian subcontinent have been leading their lives by following theguidelines and concepts given in the Vedas. These guidelines have evolved into rules followed by the people andenforced by the rulers and have thus become de facto law. In this modern times, the same laws have been retrofitted

to suit present conditions and have been codified in the form of several acts of which the important ones are - HinduMarriage ct !"##, Hindu doption and Maintenance ct !"#$, Hindu Minority and %uardianship ct !"#$, and Hindu&uccession ct !"#$.

Application of Hindu Law precise definition of Hinduism does not e'ist. Hence, it is impossible to define a fi'ed criteria for determining who isa Hindu. &o a negative definition of (who is not a Hindu( is used. Further, in this land, several religions have been bornand they they follow the same customs and practices. &o it cannot be said that Hindu )aw can be applied only topeople who are Hindus by religion. *ue to these reasons, in general, the following people are considered to be Hinduwith respect to application of Hindu )aw.

!. Hindu by Religion - person who is Hindu, +ain, auddha, or &ih by religion. In Shastri v Muldas SC AIR

191, & has held that various sub sects of Hindus such as &waminarayan, &atsangis, rya &ama/is arealso Hindus by religion because they follow the same basic concept of Hindu 0hilosophy. onverts and1econverts are also Hindus. &, in the case of !eeru"al v !oonuswa"i AIR 19#1$ has held that a personcan be a Hindu if after e'pressing the intention of becoming a Hindu, follows the customs of the caste, tribe,or community, and the community accepts him. In Mohandas vs %ewaswan board AIR 19#&, 2erala Hhas held that a mere declaration and actions are enough for becoming a Hindu.

3. Hindu by 'irth - person who is born of Hindu parents. If only one parent is a Hindu, the person can be aHindu if he4she has been raised as a Hindu. In Sapna vs State of (erala$ )erala HC, the son of Hindufather and hristian mother was held to be a hristian.

5. 0ersons who are not Muslim, hristian, +ew, or 0arsee by religion.

6. 0ersons who are not governed by any other religious law will be governed by Hindu )aw.

*rigins of Hindu LawIt is believed that Hindu law is a divine law. It was revealed to the people by %od through Vedas. Various sages andascetics have elaborated and refined the abstract concepts of life e'plained in the Vedas.

Sources of Hindu Law&ources of Hindu )aw can be divided into two parts - ncient and Modern.

1+ Ancient Sourcesefore the codification of Hindu )aw, the ancient literature was the only source of the law. These sources can bedivided into four categories7

A+ Shruti

&hruti means 8what is heard8. It is believed that the rishis and munis had reached the height of spirituality where theywere revealed the nowledge of Vedas. Thus, shrutis include the four vedas - rig, ya/ur, sam, and athrava along withtheir brahmanas. The brahmanas are lie the apendices to the Vedas. Vedas primarily contain theories aboutsacrifices, rituals, and customs. &ome people believe that Vedas contain no specific laws, while some believe that thelaws have to be inferred from the complete te't of the Vedas. Vedas do refer to certain rights and duties, forms ofmarriage, re9uirement of a son, e'clusion of women from inheritance, and partition but these are not very clearcutlaws.*uring the vedic period, the society was divided into varns and life was divided into ashramas. The concept of armacame into e'istence during this time. person will get rewarded as per his arma. He can attain salvation through8nowledge8. *uring this period the varna system became 9uite strong. &ince vedas had a divine origin, the societywas governed as per the theories given in vedas and they are considered to be the fundamental source of Hindu law.



&hrutis basically describe the life of the Vedic people.

The vedic period is assumed to be between 6::: to !::: . *uring this time, several pre-smriti sutras and gathaswere composed. However, not much is nown about them today. It is believed that various rishis and munisincorporated local customs into *harma and thus multiple 8shahas8 came into e'istence.

'+ S"ruti

&mrit means 8what is remembered8. ;ith smrutis, a systematic study and teaching of Vedas started. Many sages,from time to time, have written down the concepts given in Vedas. &o it can be said that &mrutis are a written memoir of the nowledge of the sages. Immediately after the Vedic period, a need for the regulation of the society arose.Thus, the study of vedas and the incorporation of local culture and customs became important. It is believed thatmany smrutis were composed in this period and some were reduced into writing, however, not all are nown. Thesmrutis can be divided into two - <arly smritis =*harmasutras> and )ater smritis =*harmashastras>.

%har"asutrasThe *harmansutras were written during ?:: to 3:: . They were mostly written in prose form but also containverses. It is clear that they were meant to be training manuals of sages for teaching students. They incorporate theteachings of Vedas with local customs. They generally bear the names of their authors and sometime also indicatethe shahas to which they belong.&ome of the important sages whose dharmasutras are nown are 7 %autama, audhayan, pastamba, Harita,Vashistha, and Vishnu.They e'plain the duties of men in various relationship. They do not pretend to be anything other than the wor of

mortals based on the teachings of Vedas, and the legal decisions given by those who were ac9uainted with Vedasand local customs.

%autama - He belonged to &am veda school and deals e'clusively with legal and religious matter. He tals aboutinheritance, partition, and stridhan.

audhayan - He belonged to the 2rishna @a/urved school and was probably from ndhra 0radesh. He tals aboutmarriage, sonship, and inheritance. He also refers to various customs of his region such as marriage to maternaluncle(s daughter.

pastamba - His sutra is most preserved. He also belonged to 2rishna @a/urveda school from ndhra 0radesh. Hislanguage is very clear and forceful. He re/ected pra/apatya marriage.

Vashistha - He was from Aorth India and followed the 1igveda school. He recogniBed remarriage of virgin widows.

%har"ashastras*harmashastras were mostly in metrical verses and were based of *harmasutras. However, they were a lot moresystematic and clear. They dealt with the sub/ect matter in three parts

• achara 7 This includes the theories of religious observances,

• Vyavahar 7 This includes the civil law.

• 0rayaschitta 7 This deals with penance and e'piation.

;hile early smrutis deal mainly with achara and 0rayaschitta, later smrutis mainly dealt with Vyavahar. Cut of maydharmashastras, three are most important.

Manus"ritiThis is the earliest and most important of all. It is not only defined the way of life in India but is also well now in +ava,ali, and &umatra. The name of the real author is not nown because the author has written it under the mythicalname of Manu, who is considered to the the first human. This was probably done to increase its importance due todivine origin. Manusmriti compiles all the laws that were scattered in pre-smriti sutras and gathas.He was a brahman protagonist and was particularly harsh on women and sudras. He holds local customs to be mostimportant. He directs the ing to obey the customs but tries to cloa the ing with divinity. He gives importance to theprinciple of (danda( which forces everybody to follow the law.



Manusmriti was composed in 3:: .

There have been several commentaries on this smruti. The main ones are7 2allua(s Manavarthmutavali,Meghthithi(s Manubhashya, and %ovindra/a(s Manutia.

,a-naval(ya S"ritiThough written after Manusmruti, this is a very important smruti. Its language is very direct and clear. It is also a lot

more logical. He also gives a lot of importance to customs but hold the ing to be below the law. He considers law tobe the ing of ings and the ing to be only an enforcer of the law. He did not deal much with religion and morality butmostly with civil law. It includes most of the points given in Manusmriti but also differs on many points such asposition of women and sudras. He was more liberal than Manu.This was composed in around : .

Vi/naneshwar(s commentary (Mitashara( on this smruti, is the most important legal treatise followed almosteverywhere in India e'cept in ;est engal and Crissa.

.arada S"ritiAarada was from Aepal and this smriti is well preserved and its complete te't is available. This is the only smriti thatdoes not deal with religion and morality at all but concentrates only on civil law. This is very logical and precise. Ingeneral, it is based on Manusmriti and @a/navalya smriti but differ on many points due to changes in social structure.He also gives a lot of importance to customs.

This was composed in 3:: *.

C+ Co""entaries and %igest/ fter 3:: *, most the of wor was done only on the e'isting material given in &mrutis. The wor done to e'plain aparticular smriti is called a commentary. ommentaries were composed in the period immediately after 3:: *.*igests were mainly written after that and incorporated and e'plained material from all the smruitis. s noted ealier,some of the commentaries were, manubhashya, manutia, and mitashara. ;hile the most important digest is+imutvahan(s *ayabhag that is applicable in the engal and Crissa area.Mitashara literally means (Aew ;ord( and is paramount source of law in all of India. It is also considered importantin engal and orissa where it relents only where it differs from dayabhaga. It is a very e'haustive treaties of law andincorporates and irons out contradicts e'isting in smritis.

The basic ob/ective of these te'ts was to gather the scattered material available in preceeding te'ts and present aunified view for the benefit of the society. Thus, digests were very logical and to the point in their approach. Variousdigests have been composed from D:: to !D:: *.

%+ Custo"sMost of the Hindu law is based on customs and practices followed by the people all across the country. <ven smrutishave given importance to customs. They have held customs as transcendent law and have advised the 2ings to givedecisions based on customs after due religious consideration. ustoms are of four types7

!. Local Custo"s - These are the customs that are followed in a given geographical area. In the caseof Subbane vs .awab, 0rivy ouncil observed that a custom gets it force due to the fact that due to itsobservation for a long time in a locality, it has obtained the force of law.

3. 0a"ily Custo"s - These are the customs that are followed by a family from a long time. These areapplicable to families where ever they live. They can be more easily abandoned that other customs. In thecase of Soorendranath vs Heera"onie and 'i(al vs Man-ura, 0rivy ouncil observed that customsfollowed by a family have long been recogniBed as Hindu law.

5. Caste and Co""unity Custo"s - These are the customs that are followed by a particular cast orcommunity. It is binding on the members of that community or caste. y far, this is one of the most importantsource of laws. For e'ample, most of the law in 0un/ab belongs to this type. ustom to marry brother(swidow among the +ats is also of this type.

6. uild Custo"s - These are the customs that are followed by traders.



Re2uire"ents for a valid custo"

!. ncient 7 Ideally, a custom is valid if it has been followed from hundreds of years. There is no definition ofancientness, however, 6:yrs has been determined to be a ancient enough. custom cannot come intoe'istence by agreement. It has to be e'isting from long before. Thus, a new custom cannot be recogniBed.Therefore, a new form of Hindu marriage was not recogniBed in Tamil Aadu.

In the case of Ra-othi vs Selliah, a &elf 1especterEs ult started a movement under which traditionalceremonies were substituted with simple ceremonies for marriage that did not involve &hastric rites. H heldthat in modern times, no one is free to create a law or custom, since that is a function of legislature.

3. ontinuous7 It is important that the custom is being followed continuously and has not been abandoned.Thus, a custom may be 6:: yrs old but once abandoned, it cannot be revived.

5. ertain7 The custom should be very clear in terms of what it entails. ny amount of vagueness will causeconfusion and thus the custom will be invalid. The one alleging a custom must prove e'actly what it is.

6. 1easonable7 There must be some reasonableness and fairness in the custom. Though what is reasonabledepends on the current time and social values.

#. Aot against morality7 It should not be morally wrong or repugnant. For e'ample, a custom to marry one(sgranddaughter has been held invalid.In the case of Chitty vs+ Chitty 1394, a custom that permits divorce by mutual consent and by payment ofe'penses of marriage by one party to another was held to be not immoral. In the case of opi(rishna vs+Mst 5agoo 196 a custom that dissolves the marriage and permits a wife to remarry upon abandonmentand desertion of husband was held to be not immoral.

$. Aot against public policy7 If a custom is against the general good of the society, it is held invalid. Fore'ample, adoption of girl child by nautch girls has been held invalid. In the case of Mathur vs 7sa, a customamong dancing women permitting them to adopt one or more girls was held to be void because it wasagainst public policy.

D. Aot against any law7 If a custom is against any statutory law, it is invalid. odification of Hindu law hasabrogated most of the customs e'cept the ones that are e'pressly saved. In the case of !ra(ash vs

!ar"eshwari, it was held that law mean statutory law.

!roof of Custo"

The burden of proving a custom is on the person who alleges it. sually, customs are proved by instances. In the

case of !ra(ash vs !ar"eshwari, it was held that one instance does not prove a custom. However, in the case

of 8-agar vs 5eo, it was held that if a custom has been brought to notice of the court repeated, no further proof is

re9uired.

e'istence of a custom can also be proved through documentary evidence such as in 1iwaB-i-am. &everal treaties

e'ist that detail customary laws of 0un/ab.

8sage and Custo"

The term custom and usage is commonly used in commercial law, but 8custom8 and 8usage8 can be distinguished.

usage is a repetition of acts whereas custom is the law or general rule that arises from such repetition. usage may

e'ist without a custom, but a custom cannot arise without a usage accompanying it or preceding it. sage derives itsauthority from the assent of the parties to a transaction and is applicable only to consensual arrangements. ustom

derives its authority from its adoption into the law and is binding regardless of any acts of assent by the parties. In

modern law, however, the two principles are often merged into one by the courts.

Modern SourcesHindu law has been greatly influenced by the ritish rule. ;hile it might seem that the ritish brought with them the

modern concepts of e9uity and /ustice, these concepts e'isted even in dharamashastras albeit in a different form.

Aarada and 2atyayana have mentioned the importance of dharma =righteousness> in delivering /ustice. However, we



did not have a practice of recording the cases and /udgments delivered. &o it was not possible to apply stare decisis.

This process started from the ritish rule.

The following are the modern sources of Hindu law7

1+ 72uity$ 5ustice$ and ood conscience

<9uity means fairness in dealing. Modern /udicial systems greatly rely on being impartial. True /ustice can only bedelivered through e9uity and good conscience. In a situation where no rule is given, a sense of (reasonableness(

must prevail. ccording to %autama, in such situation, the decision should be given that is acceptable to at least ten

people who are nowledgeable in shastras. @agyavalya has said that where ever there are conflicting rules, the

decision must be based on (Ayaya(.

This principle has been followed by the privy council while deciding cases.

+ !recedent

The doctrine of stare decisis started in India from the ritish rule. ll cases are now recorded and new cases are

decided based on e'isting case laws.Today, the /udgment of & is binding on all courts across India and the

/udgment of H is binding on all courts in that state.

6+ Legislation

In modern society, this is the only way to bring in new laws. The parliament, in accordance with the needs society,constitutes new laws. For e'ample, a new way of performing Hindu marriages in Tamil Aadu that got rid of rituals and

priests was re/ected by the & on the basis that new customs cannot be invented. However, TA later passed an act

that recogniBed these marriages.

lso, most of the Hindu laws have now been codified as mentioned in the beginning.

bdc4fsources of hindu law

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