SOURCES OF HINDU LAW
Like life, law is not static. Law exists to subserve the social need and therefore, it is always desirable that law should conform to the changing needs of society and life.
Just as society progresses and undergoes changes, so must the law. In this, Hindu law, despite the fact that before the advent of modern era, there was no direct law-making machinery, has shown remarkable adaptability. Hindu system of law has the most ancient pedigree of the known systems of law.
Just as society progresses and undergoes changes, so must the law. In this, Hindu law, despite the fact that before the advent of modern era, there was no direct law-making machinery, has shown remarkable adaptability. Hindu system of law has the most ancient pedigree of the known systems of law.
INTRODUCTION
Sources mean a place from where something comes. Sources of Hindu law means the originating point of Hindu law. Hindu system of law is the earliest system o law.
Hindu law is 6000 years old. Law is not static. Hindu law also comes through various stages. The study of sources of Hindu law is the study of various phases of its development.
Hindu law is 6000 years old. Law is not static. Hindu law also comes through various stages. The study of sources of Hindu law is the study of various phases of its development.
It would be convenient to classify the various sources under the following two heads:
I. Ancient sources
The ancient sources of Hindu law are as follows:
1. Sruti
2. Smriti
3. Digest and commentaries
4. Custom
II. Modern sources
The modern sources of Hindu law are as follows:
1. Legislation
2. Precedent
3. Equity, justice and good conscience
ANCIENT SOURCES OF HINDU LAW
1. SRUTI: Hindu law is considered to be divine law. Sacred law was revealed by God himself. It is essentially revealed by the divine to the Rishis and Munis(sages).
Sruti is the first ancient source of Hindu law.
Sruti is the primary and permanent source of Hindu law.
Sruti means 'what is heard'. It is believed that the Rishis and Munis had reached the height of spirituality where they were revealed the knowledge of Vedas. Thus sruti includes four vedas Rigveda, Yajurveda, Samaveda, Atharvaveda.
Vedas contains voice of God. Vedas are the source of all knowledge, thus known as the primary source of Hindu law.
2. SMRITI: The second ancient source of Hindu law is Smriti.
Smriti means 'what has been remembered'. It based on the memory of sages.
The smriti period is considered to be the golden period of Hindu law.
Smritis can be classified into two categories-
i) Dharmasutras (Early Smritis) :
The Dharmasutras are mostly written in prose.
Dharmasutras are the earlier and primary smritis.
Some of the dharmasutra writers are- Gautama, Harita, Vishnu.
The dharmasutras deal with the duties of men in their various relations.
ii) Dharmashastras (Later Smritis) :
Dharmashastras are the later and secondary smritis.
They are mostly written in verse (poetry).
They deal with the subject matter in a very systematic manner.
Some dharmashastra writers are- Narada, Yajnavalkya.
Dharmashastras are divided into three parts: Achara (Rule of religion), Vyavahara (Rule of behaviour), Prayaschitta (Rule of repentance).
Out of many dharmashastras, three are most important :
MANU SMRITI- Composed in 200 B.C. It is the earliest and most important of all. Manusmritis are considered to be the first ancestor of mankind. There is a lot of controversy regarding the existence of Manu itself. According to some other jurists, Manu is Adimanava (first patriarch).
According to Manu, law is supreme, the king must apply danda (punishment) to maintain peace and order in society. Manu's pre-eminent position is accepted not only by the Hindu law givers but also by the Buddhist writers of Java, Siam and Burma.
According to Manu, law is supreme, the king must apply danda (punishment) to maintain peace and order in society. Manu's pre-eminent position is accepted not only by the Hindu law givers but also by the Buddhist writers of Java, Siam and Burma.
YAJNAVALKYA SMRITI- It belonged to Mithila (northern Bihar). Law is king of kings. It defines civil law. It was liberal on woman and shudras. The yajnavalkya smriti deals with rules of procedural law in detail.
NARADA SMRITI- Composed in 200 A.D. It belonged to Nepal. It is logical and precise. This is the first legal code which is mostly free from moral and religious feelings. Narada deals only with Vyavahara and does not deal with Achara and Prayaschitta.
3. DIGEST AND COMMENTARIES: The smritis were not systematically arranged and there was the need for systematic arrangement of the smritis.
Thus need arose to further analysis. This need was fulfilled by the commentators and digest writers.
Commentaries are the record of traditional customs, as well as the new ones claiming for and worthy of recognition.
Digests were written after commentaries.
These were composed from 700 to 1780 A.D.
Till 12th-century general tendency was to write commentaries (Tika) on particular smriti but from 12th-century onwards the trend was to write digest (Nibandha) on several smritis.
Important commentaries on Manusmriti are Manubhasya by Medhatithi and Manutika by Govindraja.
Important commentary on Yajnavalkya smriti is Mitakshara by Vijnaneswara. Mitakshara literally means 'a new word'. This was the paramount source of law in all over India except Bengal and Orissa.
Most important digest is Dayabhag by Jimutavahana. Dayabhaga is the supreme authority in Bengal and Orissa. It mainly deals with Inheritance and Partition.
4. CUSTOM: Custom is a rule or habit which acquires the force of law in a particular caste, community or family. Most of Hindu law is based on custom and practices followed by the people all across the country.
Even smriti has given importance to custom. They have held customs as transcendent law and have advised King to give decision based on customs.
Customs are of four types-
i) Local Custom: Local custom is the custom which is followed by the people of a particular locality.
In Subbane vs. Nawab, privy council observed that a custom gets force due to its observation for a long time in a locality, it obtained the force of law.
ii) Family Custom: Family custom is the custom which is followed by the members of a particular family.
In case of Soorendra Nath vs. Heeranmonie, privy council observed that customs followed by family is long been recognised as Hindu law.
iii) Caste and Community Custom: Caste and community custom is the custom which is followed by a caste or community.
It is binding only to members belonging to that caste or community. This is a very important source of law.
For example, most of the law in Punjab belong to this type, like custom to marry Brother's widow among Jats.
iv) Gilt Custom: These customs are followed by traders. Everything like all terms and conditions is not necessary to be in written form but there are customs to be followed in some cases.
These are the ancient sources of Hindu law.
REQUIREMENTS FOR A VALID CUSTOM
There are certain essentials for a custom to be valid. They are-
1. Custom should be ancient: Custom must have start time immemorable. Ideally, a custom is valid if it has been followed from hundreds of years. There is no definition of ancientness however 40 years has been determined to be an ancient enough.
The word 'ancient' means that it belongs to antiquity. According to Section 3(a) of the Hindu Marriage Act, 1955, it should be observed for a long time. A custom cannot come into existence by agreement it has to be existing long before. Thus a new custom cannot be recognized.
In Rajothi vs. Sellia case, 'the self- respecters cult' started movement under which the traditional ceremonies of Hindu marriage were substituted with simple ceremonies of marriage that did not include shastric rites.
High court held that no one is free to create law or custom because making law is the function of the legislature.
High court held that no one is free to create law or custom because making law is the function of the legislature.
2. Custom should be continuous: Continuity of custom is as essential as its antiquity. It is important that custom is being followed continuously and has not been abandoned. Thus a custom maybe 400 years old but once abandoned it cannot be revived.
3. Custom should be certain: The custom must be very clear cut, defined any amount of vagueness will cause confusion and thus the custom will be invalid. It is necessary to prove with reasonable amount of certainty that the custom alleged exists.
4. Custom should not be unreasonable: Custom must be reasonable and fair. An unreasonable custom is void., although it cannot be said that custom is always founded on reason. No amount of reason can make a custom.
What is reasonable or unreasonable is a matter of social values. It may differ from time to time, from place to place. Therefore, whether a custom is reasonable or not is determined by the contemporary values of every society. Court has full power to decide the reasonableness of custom.
5. Custom must not be against morality: Custom should not be morally wrong. Immoral custom is void. For example, a custom to pay money to natural parent by adoptive parent is immoral thus void.
In Chitty vs. Chitty, a custom that permits divorce by mutual consent and by payment of expenses of marriage by one party to another party was held to be moral and valid.
6. Custom must not be against public policy: If the custom is against the general good of the society it is held to be invalid.
In Mathur vs. Esa, a custom among dancing women permitting them to adopt one or more girls was held to be void because it was against public policy.
7. Custom must not be against any law: If a custom is against any statutory law it is invalid. A custom opposed to sacred law prevails, but no custom opposed to statutory law can be given effect.
These are the most essential elements for a custom to be valid.
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