By P. Nithin Pramod Kumar (School of Law, Presidency University, Bangalore)
INTRODUCTION OF HINDU LAW
Hindu law is taken into account to be the foremost ancient law and prolific law within the world. It’s been around every phase. Hindu law has been established by the people to follow it so as to achieve salvation. Originally Hindu law was established in order that the necessity of the people gets fulfilled. The concept of Hindu Law was initiated for the welfare of the people. The sources of Hindu Law contain both Ancient type sources and also modern type sources. The Ancient sources discuss with shruti, smriti, customs, Digest and commentaries. And the modern sources of Hindu law deals with legislation, precedent, and Justice, Equity and Good Conscience.
SOURCES OF HINDU LAW
The Sources of Hindu Law is specifically classified into two divisions. They are:
- Ancient sources
- Modern sources
- Ancient sources
There are four sources under Ancient source. They are:
- Digests and commentaries
Shruti is the primary and paramount source of Hindu Law. The word Shruti is derived from the root “Shru” which means ‘to hear’. Shruti is the word that means that which has been listening to (or) heard. Shruti is believed to be the language of the divine revelation through sages.
The Shruti is comprised of 4 Vedas, 6 Vedangas, 18 Upanishads. The four Vedas are: Rig Veda, Yajurva Veda, Sama Veda and Atharva Veda.
- Rig Veda – Rig Veda is an ancient Indian collection of Vedic Sanskrit hymns.
- Yajurva Veda – Yajurva Veda is the Veda primarily of prose mantras for worship rituals.
- Sama Veda – Sama Veda is a Veda of chants. It is an ancient Vedic Sanskrit text, and part of the scriptures of the Hinduism.
- Atharva Veda – Atharva Veda is the knowledge storehouse of atharvanas, the procedures for everyday life.
It is believed that Munis and Rishis had reached the height of spirituality where they revealed Vedas’ knowledge. Vedas primarily contain theories about rituals and customs. Since Vedas had a divine origin, the society was governed as per the theories given in them and they considered to be fundamental source of Hindu Vedangas.
The Upanishads are known as the Vedantas. Vedas refer to certain rights and duties, forms of marriage, exclusion of the women from an inheritance, and a son’s requirement, but these are not very clear-cut laws.
The word Smriti is derived from the root of “Smri”; which means ‘to remember’. Smriti contains the portions of the shrutis, which those portions are forgotten in their original form and written in their own language with the help of their memory.
The rules laid down in Smritis can be divided into three categories
- Achar – Relating to the morality
- Vyavahar – signifying procedural and substantive rules which the King or the State applied for settling disputes in the adjudication of justice
- Prayaschit – signifying the penal provision for the commission of a wrong
There are two kinds of Smritis. Those are:
- Dharma sutras (Early smritis)
- Dharma shastras (Later smritis)
Dharma Sutras (Early Smritis)
Dharma sutras are written in the prose, in short maxims which are called as Sutras. The Dharma sutras are written from 800 to 200 BC. It is clear that they are meant to be training manuals of sages for teaching students.
They incorporate the teachings of the Vedas with in local customs. Some of the important sages whose Dharma sutras are known are: Gautama, Baudhayan, Vashistha, Harita, Apastamba, and Vishnu.
- Gautama – He belongs to the SamVeda school. He deals exclusively with religious and legal matters. He talks about partition, stridhan and inheritance.
- Baudhayan – He belonged to Krishna Yajurveda school and he was from Andhra Pradesh. He talks about sonship, inheritance, and marriage.
- Apastamba –He also belongs to the Krishna Yajurveda school from Andhra Pradesh. His language was very clear and forceful. He rejected Prajapatya’s marriage.
- Vashistha – He was from the North part of India and followed RigVeda school. He recognized the remarriage of virgin widows.
Dharma Shastras (Later Smritis)
Dharmashastras are composed in a poetry manner which is called Shlokas. Dharmashastras are mostly metrical verses and were based on the Dharmasutras. These are more systematic and clearer. Occasionally, we found Sutras in the Dharmashastras and Shlokas in Dharmasutras
“Smriti” means “what is remembered”. With Smritis, the systematic study and teaching of the Vedas have started. Many sages have written down the concepts given in the Vedas. So, it can be said that Smritis are a written memoir of knowledge of the sages.
The fact which becomes obvious is; Vedas were divine laws, and the Smritis were more of secular laws dealing with religion and morality. The laws laid down in the Smritis included the law on morality, substantive rules applied in the adjudication of disputes, and the penal provisions meted out as a punishment on wrongdoers.
It was superior to the written law. Custom is regarded as the third source of Hindu law. From the earliest period custom was regarded as highest ‘Dharma’. Foremost of the Hindu law is based on the customs and practices followed by people all across the country. And also smritis have given importance to the customs. They have held the customs as transcendent law.
Customs are of four types:
- Local Customs: These are the customs that are followed in the geographical area or local locality.
- Family Customs: These are the customs that are followed within family for a very long time. These customs are applicable to the families where ever they live.
- Caste and Community Customs: These are the customs which are followed by a particular caste or community. This is one of the foremost important sources of laws.
- Guild Customs: These are the customs which are followed by the traders.
Essentials of Custom
- A custom is valid if the custom has been followed for hundreds of years. 40 years has been determined to be ancient enough.
- It was important that custom is being followed continuously and has not been abandoned. Thus, a custom has been 400 years old but once abandoned, it can’t be revived.
- There should be fairness and reasonableness in the custom.
- It must be morally correct.
- The custom has to be clearly defined, and should not be confusing.
- If the custom is against any statutory law, it is invalid.
- There must be consistency between customs. Two customs that have opposing viewpoints then are considered to be invalid.
Digests & Commentaries
Digests (Nibandhs) and Commentaries (Tika) covered a period over thousand years from the 7th century to 1800 A.D. At first, most of the commentaries were written on the Smritis; but later, the works were within the nature of digests containing a synthesis of the varied contradictions.
The work which is finished to elucidate the actual smriti is termed as commentary. A number of the commentaries were Mitakshara, Manubhashya, and Manutika. The foremost important digest is that the Jimutvahan’s Dayabhaga which is applicable within the areas of Bengal and Orissa.
“Mitakshara” means “New Word” and is a superior source of law altogether across India. It’s also considered important in Orissa and Bengal where it relents only where it differs from Dayabhaga. The Mitakshara and Dayabhaga are two major schools of the Hindu law. The Mitakshara relies on commentaries written by Vijnaneswar on the Code of Yajnavalkya and therefore the Dayabhaga School of law is predicated on commentaries of the Jimutvahana.
There are three sources under Modern Sources. They are:
- Justice, Equity, and Good Conscience
- Justice, Equity and Good Conscience
Our judicial system relies on being unbiased. True justice can be delivered through good conscience and equity. At times it may happen, a dispute arises before a Court which can’t be settle down by implication of any existing rule by any of sources available. Such situation might be very rare but it is possible because not every kind of situation which arises can have the corresponding law governing it.
The Courts can’t reject to settle down the dispute of non-existence law and they are responsible to decide such a case also. To solve such cases, the Courts depends upon the norms, basic values and the standards of fair play and propriety.
- In Gurunath v Kamlabai the supreme court held that in the absence of any existing law the rule of justice equity and good conscience was applied.
The doctrine of stare decisis started in India from British rule. All cases which are held till now are been recorded and the new cases are resolute based on the last existing case laws. After establishment of the British rule, ranking of Courts was established.
The doctrine of the precedent based on principle of treating like cases alike was established. Today, the judgment of Supreme Court is binding on all other courts in India and the judgment of High Court is binding on all other courts of the state.
The legislation is considered as the most important source of Hindu law. It was considered as the base for the growth of Hindu law in modern world. It was being stated that in order to meet new conditions of society it became a necessity to codify the law.
Hindu law does not tolerate modern view of the society. There are many areas where the Hindu law needs to improve itself, for example, Irretrievable breakdown theory of marriage as the valid ground for divorce is still not recognised under Hindu Marriage Act, 1955, and even the Supreme Court have expressed their concern on this.
The Ancient sources of the Hindu law were written in Sanskrit and it is well known that there is a lack of Sanskrit scholars in the present times. Since the time modern sources have emerged the importance of ancient sources has declined.