Sources of Hindu Law

Sources of Hindu Law

Introduction

Hindu Law is mainly a law governing the Hindus. It is based on immemorial custom and secular law which was called Dharma. Hindu Law is considered to be of divine Origin. It is revealed by the Almighty God to our great sages, Philosophers and jurists who had attained Spiritual heights by their Tapasya and Yog. Since it is divine law, it cannot be changed by any human agency. It is enforceable at all time.

Sources of Hindu Law

I. Ancient Sources

1. Sruthi

The Sruthis are divine origin from Vedas

Sruthi means “What was Heared” by the sages in a revelation by God.

Some of the Sruthis are

1. Four Vedas by sage vyas

•         Rig  Veda                    (It is the Oldest Veda)

•         Yajur Veda                 (It contains Sacrificial Ceremonies)

•         Sama Veda                  (It shows the ways of Offering to God)

•         Atharvana Veda          (It  consists of Magic Charms)

2. Six Vedangas

•         The Siksha                   or         Orthography

•         The Kalpa                    or         Treaties dealing with rituals

•         The Vyakaran              or         Grammer

•         The Chandas               or         Prosody

•         The Jyotish                  or         Astronomy

•         Nirukta                        or         Lexicon

3. Upanishads

•         The Concluding part of Vedas

Vedas are revealed by the Almighty. They does not contain any Law, But deal with

a.                   Marriage

b.                  Adoption

c.                   Partition

d.                  The exclusion of women from inheritance

The Period of Vedas is estimated to be 4000 – 1000 BC. Smriti started from 800 BC. Inbetween the followers of the varna Dharma/ Ashrama Dharma interpreted Vedas and developed various Sakahas

2. Smritis

Smritis means “What was Remembered” Theses are recorded by the sages of what they had heared from God.

Among the smritis the Narada Smritis and Manu smritis are very important, which deals with civil and criminal Law, the Laws of Marriage, etc.

Manu Smritis

•         Deals with 18 titles relating to civil, ciriminal, Marriage and Procedural Law

Naradha Smritis

•         Recognises the power of the King to make Law

Yagnavalkya Smritis

•         Contains 1010 Slokas, Provides that King is subordinate to Law

Brihaspati Smritis

•         It deals with Legal Subject

These laws were liberal as regards the women and the sudras

Dharma Sutras (தர்ம-சூத்ரா)

Gautama (கௌதமா)

•         Oldest Law

•         Traditions, Practices, usages and Custom were the basis of law

•         King was required to preserve these customs

•         It dealt with Inheritance, Partition and Stridhana, Money Lending etc

Harita (ஹரிதா)

•         A former judgement (Pragnyaya) were binded in Harita

•         Judgement was made based on the same nature of subsequent dispute

•         In modern law, this is called Res Judicata

Apastamba (அபஸ்தம்பா)

•         Mainly deals with laws of marriage, inheritance & Ciriminal Law

•         The law was considered to be clear and forceful in its language

Vasistha (வசிஸ்தா)

•         It deals with the source of law, jurisdiction of law, marriage, adoption and inheritance

•         According to this, usage is supplement to law

Boudhayana (பௌதாயனா)

•         It deals with the adoption, marriage, and inheritance,

•         It also dealt with sea law and its Customs, gave right of the King to impose excise duty on traders

•         It endorses the validity of South Indian Custom of a Man marrying his Sister’s Daughter.

Vishnu (விஷ்ணு)

•         It was borrowed from Manu smriti

•         It deals with Criminal and Civil Laws, including inheritance, marriage, creditors and debtors

3. Commentaries and Digests

Since Smritis did not agree with each other, they gave rise to commentaries which are otherwise called ‘Nibandhas’ (நிபாந்தாஸ்)

They were written during the period between 700AD to 1700AD.

Yagnavalkia smritis is commented upon by vigneswara which has later become the Mitakshara (மிதக்க்ஷரா) School of Hindu Law.

The same smritis was commented upon by jimutuvahana (ஜிமுதவாஹனா) which later became the Dayabhaga (தயா பாகா) School of Hindu Law.

Principal Commentries are:

4. Custom or Sadachara

Custom is a rule of action uniformly and continuously followed by the bulk of the people for a long time.

Custom is recognized as an important source of all Civil Laws

Acc to Manu, The King must inquire into the particular laws of custom of traders.

Types of Customs

Essentials of Valid Custom

1. Reasonableness

The Custom must be reasonable. It should not affect the society in any way. It should satisfy the principles of natural justice.

If a Custom is Unreasonable, then it is not valid and will not become a law

Eg) If a custom recognises that a woman can marry more than one man, it is unreasonable and will not become a law.

2. Conformity

The Custom should be in conformity with the established law of the Land.

 If a custom is inconsistent with the law of the Land, then it is invalid.

Eg) Slavery is an Offence under Indian Penal Code, If a Custom recognises slavery, then such custom is invalid.

3. Opinion

The public should feel that the particular custom is benifitial for them. They must think that such a custom is a binding rule of the community and it should not be of individual choice.

4.Observance

A mere practice of Custom will not become law.

It must be observed freely and voluntarily

5. Immemorial Atiquity

The Origin of the Custom should be from the immemorial. The Origin should not be traced.

No Living man must remember its Origin. Fashion is not Custom.

6. Continuity

The Custom should be followed without interruption. It must be followed Continuously.

7. Peacefulness

The Custom must have been observed Peacefully.

It should not be protested in anyway by the public or part of the public.

8. Certainty

The Custom must be certain and definite. It should not be vague.

If a custom is indefinite, then it is invalid.

9. Consistency with other customs

The Custom should not be opposed to other Customs.

Suppose two different customs exist which are inconsistent to each other, then both the customs are invalid.

5. Doctorine of Factum Valet

The meaning of the Maxim is ”What ought not to be done, if done is valid”

The Latin Maxim “Factum Valet quod fieri nondebuit” is invoked to cure the irregularities.

A marriage requires certain formalities to be fulfilled for making it valid

If the formalities are recommendatory, then the doctorine can be invoked to cure the irregularity.

But, If the formalities are Mandatory, then the doctorine cannot be invoked.

Eg)

The irregularities arising from Sapinda relationship, prohibited relationship, and Bigamy are all mandatory. So violations of these condition cannot be cured by applying the Doctorine.

Case (Factum Valet):

a) Mulchand Vs Budha.

A – Husband

B – Wife

C – 4 year old Daughter of  A & B

Fact:

            B celebrated marriage of 4 year old Daughter, when A was on Tour. (Hence his consent could not be obtained)

A sued for declaration of marriage as void

Judgement:

Privy Council upheld the marriage Valid since the condition requiring the consent of first Guardian was only recommendatory.

Comment:

The Court applied the doctorine of ‘Factum Valet’ to cure the defect of not getting the first guardian consent.

b) Ganesh Prasad Vs Damayanthi

Fact:

The Marriage was performed under the special Marriage Act.

The Bride was a Minor.

Consent of the guardian was not obtained before the marriage.

Judgement:

The Court held that the Marriage was Valid as the consent of the guardian to the marriage was only recommendatory.

II. Modern Sources:

1.Judicial Decision

All important points of Hindu law are now-a-days clarified by decisions of law (Supreme Court and High Courts). They are binding in nature and are published in Law reports and thus form an additional sources of Hindu Law

Eg) In Collector of Madura Vs Moota Ramalingam Case, the Privy Council held “a Clear proof of usage will outweigh the written text of law”. The decisions of the Hign Courts and Supreme Courts are considered as Precedenta and applicable in subsequent cases.

2. Principles of Justice, Equality, Good Conscience

            These are rules deduced from general principles of Hindu Law, altered to suit the conditions of modern society.

When the law is Silent, the Courts in india follow Justice, Equality, Good Conscience in deciding many new points of Hindu Law.

Thus the Principles of Justice, Equality, Good Conscience were esistent even during ancient days.

3. Legislation

This is the latest and vital source of modern Hindu Law. These Legislations have not only brought in profound changes in ancient Hindu Law but also have made the law certain and definite by various Acts, Rules and Regulations.

Eg) Abolition and Regulation 1829. Several acts are as follows

1.      The Hindu Inheritance Act, 1928

2.      Child Marriage restraint Act, 1929

3.      The Hindu gains of learning Act, 1930

4.      The Hindu marriage Act, 1955

5.      The Hindu Succession Act, 1956

6.      The Hindu adoption and Maintanance Act, 1956

7.      Hindu minority and guardianship Act, 1956

8.      Hindu widow’s re-marriage act, 1856

Conclusion:

Thus it was clear that the Hindu Law is divine law. Ancient sources paved the way for Modern Sources and the Laws are enforceable at all time.