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Sources Of Hindu Law

"Hindu law has the oldest pedigree of any known system of jurisprudence, and even now it shows no sign of decrepitude." - Henry Mayne

Introduction
The term "source of law" does have a variety of meanings. First, it could be the authority that issues norms of conduct that are considered binding by courts. Second, the term source of law' refers to the person who creates the legislation. Finally, it could also refer to the material from which the rules and laws are derived. However, In this sense, the term "source of law" refers to legal evidence, and it is in this context, that the term "source of law" is acknowledged in jurisprudence.[1]

For thousands of years, People in the Indian subcontinent have been living their lives by complying with the rules and concepts laid out in the Vedas. These recommendations have grown into norms that people observe, and rulers execute, becoming de facto law. The very same law has been modified to meet the existing situation and formalized in many statutes; the most important ones are -the Hindu Marriage Act of 1955, Hindu Adoption and Maintenance act 1956, Hindu succession act 1956.

Hindu law is said to have come from the gods. It is not a pure customary law, as is the case in England's common law. Instead, it consists of a set of norms and laws that have been followed for centuries and are described in various Sanskrit and Hindu texts[2]. This is evidenced by the fact that numerous Kings followed these laws, which have remained unchanged until this day. "Also, the British rulers in India and Indian legislation affirmed its applicability to Hindus so far as they were not in conflict with the statute law."[3] Hindu law is dynamic in character, encompassing religious, moral, and civil systems of law.

The term Dharma is associated with Hindu law, as we all know. As per Hindu mythology, the word "Dharma" implies "obligation." Dharma has different meanings depending on the context and religious allusions. For example, Buddhists feel that the word Dharma only refers to a common law that is very important, but Jains and Sikhs believe it only refers to a religious path that leads to the triumph of the truth.[4]

Dharma, according to Hindu law, refers to a variety of responsibilities. Similarly to societal, legal, and spiritual responsibilities. Dharma can indeed be defined as the concept of justice(NYAYA) in this context. Therefore, Hindu law could be seen as a branch of this Dharma, with Dharma as its foundation.[5] This study, together with the Hindu law sources, will draw out certain inconsistencies in the sources. It will also offer various answers to the problem.

Origin
Hindu law is thought to be divine law. God revealed it to humans through the Vedas. The notion of life described in the Vedas has been extended and polished by different phases and ascetics. Ancient Hindu legislators were not monarchs, but sages, who could be considered semi-divine individuals due to their deep intellectual speculation and foresight, as well as strong sympathy for man-to-man social dealings.

It was these thinkers who established Hindu law, which can be found in the dharmasutras, dharmashastras, and the Artha sastra of Kautilya as explained and elaborated by various nibandhas and later era commentary.[6] The concept of "the rule of law" was acknowledged from the outset in ancient India. Hindu law dates back roughly 6000 years[7].

The origins of these legal and religious speculations must be traced back to the Vedic Deity Varuna's idea of Rita, or Natural Order. From the previous brief historical outline, it is clear that Hindu law was initially territorial in nature, applying to all residents of Aryavarta or India. However, after the arrival of the Muslims, it could no longer be considered to be downright territorial; it was now limited to the Hindu community alone.[8]

Application Of Hindu Law

The name "Hindu" initially appeared in Old Persian text. It was taken from the Sanskrit word Sindhu, which was the old local term for the Indus River in the Indian subcontinent's north-western region. A Hindu is someone who practises Hinduism[9]. Because there is no specific definition of Hinduism, determining somebody is a Hindu is extremely difficult. As a result, a negative definition is considered, with the term "who is not a Hindu".

The Hindu law applies to the following people, according to Section 2 of the Hindu Marriage Act, 1955:
  • By Religion:
    An individual is regarded as a Hindu if he or she practises any of the following religions: Hindu, Jain, Buddhist, or Sikh. The Supreme Court ruled in Sastri v. Muldas[10] that Hindu sects such as the Swaminarayan, Arya Samaj, and Satsangis are also Hindus. Furthermore, when individuals convert to Hinduism or perhaps even return to it, they are labelled a Hindu. Perumal v. Ponnuswami[11], a significant decision, held that people could become a Hindu if he or she shows a willingness to do so and performs Hindu practises to prove that desire.
     
  • By Birth:
    A child is Hindu by birth if he or she is born to Hindu parents. When one of the parents is Hindu, a child is also a Hindu if raised in a Hindu household.
     
  • If a person is not a Muslim, Jew, Parsi, or Christian, he or she is a Hindu. When an individual is not subject to any other law, he or she is subject to Hindu law][12].

Sources of Hindu Law
The sources of Hindu law can be categorized under two heads:
  1. Ancient and
  2. Modern

Ancient Sources of Hindu law
Sruti, Smriti, and Custom are the three primary ancient sources of Hindu law. Commentaries and digests, in addition to these three texts, are considered ancient Hindu law sources.
  1. Sruti is a Sanskrit word that means "something which can be heard." The Vedic people's lives are often described in Srutis. It is made up of the six Vedangas, the Upanishads, and the four Vedas, which are:
    1. The Rig Veda (which is the oldest of the four and includes songs and hymns);
    2. The Yajur Veda (which comprises rituals and mantras);
    3. The Sama Veda (which contains musical notes and prayers); and
    4. The Atharva Veda (which contains musical notes and prayers) (contains magical spells).
    "The Sruti is, in theory, the primary and paramount source of Hindu law and is believed to be the language of divine revelation."[13]As a result, it is the fundamental foundation of Hindu Law, yet it is not legally enforceable.
     
  2. Smriti comes from the Sanskrit word "smri," which means "to remember." Smriti, in basic terms, pertains to God's words that the sages forgot to tell in one's original form, but which the sages recalled and wrote in their own words[14]. Thus, Smriti translates to "that which is remembered."

    "Though the Smritis are not in the exact language of the God, they embrace what the sages learned from discoveries, and they are regarded to have arisen from the God in the context that they embrace what the sages remembered from revelations. Thus, Smritis suggests human authorship, putting human action into the substantive and procedural proclamation of law."[15] The Dharmasutras [old Smriti] and the Dharmashastras [new Smriti] are the main two types of Smriti.

  • Dharmasutras:
    These were written between 800 and 200 BC. They comprised local rituals and customs as well as Vedic preaching on various tasks that a person must carry out in various relationships. Sutras have a short and straightforward meaning that is easy to memorise. The Srauta Sutra (ritual related), the Grihya Sutra (domestic-related), and the Dharma Sutra (discipline related) are the three types of sutras (law-related). The Gautama (legal and religious topics), the Baudhayan (marriage and inheritance concerns), the Apastamba, and the Vashistha were the four important thinkers of the Dharma Sutra (remarriage of virgin widows).
     
  • Dharma Shastra
    In Dharmashastra, our moral code of conduct is stated. It was based on Dharmasutras and was more precise and systematic when compared to other texts. The three most important issues that the Dharma Shastra deal was Aachara; Vyavahar; and Prayaschitta[16]
     
  • Manusmriti is a Sanskrit word that means:
    It is considered the most authoritative source of Hindu law. Manu, its creator, is regarded as the first human being. All of the granthas and sutras are collected in Manusmriti. It is generally accepted and respected that the latter will lose if a fight emerges between it and other smritis.[17]
     
  • Yajnavalkya Smriti
    It appeared after Manusmriti and contained more logical and apparent views. However, it primarily dealt with civil law. Law, according to Yajnavalkya, is the king of kings, and the king's role is limited to enforcing the law.[18]
     
  • Narada Smriti
    He gave importance to regular customs. This Smriti did not deal with any religious or moral issues. It wholly concentrates on civil practices and laws.

Commentaries and Digests
"The law of the Smritis was empiric and regressive, and in the course of time, several commentaries and digests (Nibandhas) were written on it. The authority of several commentators varied in different districts, and thus arose the schools of law which are operative in different parts of India."[19] The two schools of Hindu law are Dayabahga and Mitakshara. Moreover, it is only because of the numerous commentaries available from various authorities that these schools could evolve and be properly studied.[20]

In the case Anjubai v. Hemchandra Rao [21], it was opined "that commentaries do not enact the law, but they explain and interpret the law and are evidence of the congeries of customs which form the law"[22].

Custom

In India, Custom is the most widely used and recognised source of Hindu law. Customs were valued in all of the Srutis and Smritis. However, usage is not the same as Custom since usage is a common practice. Specific basic requirements must be met for a custom to be valid, namely:
  1. Custom must be put into practice over a long period.
  2. It must not be immoral or ethically repugnant
  3. In some places, it is regarded as a law.
  4. The tradition must be consistent in its essence.
  5. It must also be specific and not wavering or vague.
  6. It must be reasonable and not in violation of any public policy or law.
  7. It should not be discarded.][23]

Hindu law considers Custom to be the third source of law. Custom ('Achara') has been regarded as the ultimate 'dharma' since the beginning. According to the Judicial Committee, "custom" refers to a regulation that has gained legal force in a certain family, class, or district via lengthy usage.

The majority of Hindu law is founded on conventions and traditions that individuals observe all over the country. Even smritis have placed a premium on customs. They regarded customs as the supreme law, advising kings to judge based on customs after careful theological deliberation.[24]

These customs are of four types:

Local Customs:
These are the customs that exist in a specific geographic location. In the case of Subbane v. Nawab[25], the Privy Council stated that a custom has legal force because it has been observed for a long time in a particular location.

Family Customs:
These are traditions that have been passed down through generations in a family. This applied to all families, regardless of their location. They are less complicated to abandon than other practices. The Privy Council noted in Soorendranath v. Heeramonie and Bikal v Manjura[26] that family practises have long been recognised as Hindu law.

Caste and Community Customs:
These are the traditions that a specific caste or community adheres to. It binds the individuals of such a caste or group. This is, without a doubt, among the most important legal sources. For instance, the majority of the law of Punjab is of this type. This is likewise the case with the Custom of marrying a brother's widow in several societies.

Guild Customs:
These are the customs that traders adhere to.[27]

Modern Sources:
Many changes were made to Hindu law as a result of the arrival of the British. The modern sources of Hindu law arose as a result of this. The three Modern sources are equity, fairness, good conscience; precedents and judicial decisions; and legislation.
  1. Equity, Fairness, And Good Conscience:
    Sometimes, a dispute may arise before a Court cannot be resolved by applying an existing rule from any accessible sources. Although such a situation is uncommon, it is feasible since not every circumstance that emerges has a matching law governing it. In the lack of law, the courts have no choice but to resolve the dispute, yet they are obligated to do so. The Courts use core values, norms, and criteria of fairness and appropriateness to decide such situations.

    It is referred to as the principles of justice, equality, and good conscience. Natural law is another name for them. Since about the 18th century, when the British administration made it plain that the above concept would be implemented in the lack of regulation, this concept now has the stature of a source of law in our country.[28]
     
  2. Precedents And Judicial Decisions:
    The pyramid of Courts was developed after the beginning of British control. The theory of precedent was formed based on the premise of treating similar cases similarly. The Privy Council's judgements are now obligatory on all subordinate courts in India unless modified or revised by the Supreme Court, whose judgements are binding on all courts except itself. Occasionally, judicial judgements on Hindu law are referred to be a source of law[29].

    For example, when there were disagreements between individuals during the British rule in India, English judges turned to Hindu Pandits for help in interpreting local Sanskrit laws and using them to settle the conflicts. Thus these cases become precedent.
     
  3. Legislation:
     legislation is codified laws of parliament, which plays an essential role in forming Hindu law according to modern society. Some major elements of Hindu Law have indeed been codified since the Attainment of independence. The Hindu Marriage Act of 1955, the Hindu Adoptions and Maintenance Act of 1956, the Hindu Succession Act of 1956, the Hindu Minority and Guardianship Act of 1956, and others are just a few examples of crucial statutes.

    All point dealt with by the codified law is definitive after codification. If an express saving is provided for in the enactment itself, the enactment supersedes all preceding law, whether based on tradition or otherwise. The old textual law contains to have application in situations not specifically covered by the codified law.[30]

Conclusion:
As previously stated in this thesis, Hindu law is thought to be a divine law formed by sages and those who claim to have formed it by directly communicating with God. However, there is no evidence to support this assumption. Hindu law is exceedingly patriarchal, casteist, and not modern in nature.

The irreversible breakdown concept as a legal reason for divorce is not yet recognised under the Hindu Marriage Act, 1955, and even the Supreme Court has expressed their worry about this. The most legitimate objection is that the statutes only provide a negative definition of a "Hindu," which does not stand up to the scrutiny of time. It could be suggested that comprehensive codification of Hindu law, free of ambiguity, is a pressing need.

End-Notes:
  1. Debanshukhettry, Sources of Hindu Law: A critique, available at Sources of Hindu Law (legalservicesindia.com) (Last visited on June 08, 2021
  2. Vaniakone (Mokkakone) v. Vannichi Ammal, AIR 1928 Mad 299 (FB).
  3. Vidya Varuthi v. Baluswami, AIR 1922 PC 123.
  4. Ayush Verma, Introduction To Hindu Law In India, February 24, 2020, available at Introduction to Hindu Law in India (ipleaders.in) (Last visited on June 9, 2021)
  5. B M Gandhi, Hindu Law 3(2nd ed., 2003).
  6. Aafreen Manzoor, Hindu Law: Ancient Sources Of Hindu Law, available at Hindu law: Ancient sources of Hindu law (lawyersclubindia.com) (Last visited on June 9, 2021)
  7. Dr. Paras Diwan and Peeyushi Diwan, Modern Hindu Law (Codified and Uncodified), 1972, 23rd edition, Allahbad Law Agency2018), p 4.
  8. Aafreen Manzoor, Hindu Law: Ancient Sources Of Hindu Law, available at Hindu law: Ancient sources of Hindu law (lawyersclubindia.com) (Last visited on June 9, 2021)
  9. Debanshukhettry, Sources of Hindu Law: A critique, available at Sources of Hindu Law (legalservicesindia.com) (Last visited on June 08, 2021).
  10. Sastri Yagnapurushadji and Others v. Muldas Brudardas Vaishya and Another, AIR 1966 SC 1119.
  11. Perumal Nadar v. Ponnuswami, AIR 1971 SCR (1) 49.
  12. Discuss the sourced of Hindu Law, available at: http://hanumant.com/SourcesOfHinduLaw.html (Last visited on June 8, 2021).
  13. Ranganath Misra, J., Mayne's treatise on Hindu Law &Usage 15 (15th ed., 2003).
  14. Mayank Bansal, Sources of Hindu Law- Meaning and Nature of Hindu Law, May 08, 2021, available at Sources of Hindu Law- Meaning and Nature of Hindu Law | (legalstudymaterial.com) (Last visited on June 9, 2021).
  15. B M Gandhi, Hindu Law 3 (2nd ed., 2003).
  16. B M Gandhi, Hindu Law 3 (2nd ed., 2003).
  17. Ranganath Misra, J., Mayne's treatise on Hindu Law &Usage 15 (15th ed., 2003).
  18. Discuss the sourced of Hindu Law, available at
    http://hanumant.com/SourcesOfHinduLaw.html (Last visited on June 8, 2021).
  19. Satyajeet A Desai, Mulla on Principles of Hindu Law 78 (17th ed., 1998).
  20. Debanshu Khettry, Sources of Hindu Law, available at
    http://www.legalservicesindia.com/article/329/Sources-of-Hindu-Law.html (Last visited on June 08, 2021).
  21. Anjubai v. Hemchandra Rao, AIR 1960 MP 382.
  22. B M Gandhi, Hindu Law 3(2nd ed., 2003).
  23. Nitya Bansal, Ancient and Modern Sources of Hindu Law: A Concise Overview, July 29, 2020, available at Ancient and Modern Sources of Hindu Law: A Concise Overview (legalbites.in) (Last visited on June 9, 2021).
  24. ID
  25. Subbane v. Nawab , (1941) 43 BOMLR 432
  26. Bikal v Manjura , AIR 1973 Pat 208
  27. Supra at No. 23
  28. Debanshukhettry, Sources of Hindu Law: A critique, available at Sources of Hindu Law (legalservicesindia.com) (Last visited on June 08, 2021)
  29. Saraswathi v. Jagadambal, AIR 1953 SC 201.
  30. Mayank Bansal, Sources of Hindu Law- Meaning and Nature of Hindu Law, May 08, 2021, available at Sources of Hindu Law- Meaning and Nature of Hindu Law | (legalstudymaterial.com) (Last visited on June 9, 2021).

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