Hindu Law - Ancient & Modern Sources of Hindu Law

Hindu Law

Ancient and Modern Sources of Hindu Law

By: 

Vijay Sardana

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

Origins of Hindu Law

It is believed that Hindu law is a divine law. It was revealed to the people by God through Vedas. Various sages and ascetics have elaborated and refined the abstract concepts of life explained in the Vedas. From thousands of years people living in the Indian subcontinent have been leading their lives by following the guidelines and concepts given in the Vedas.

These guidelines have evolved into rules followed by the people and enforced 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 - Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act 1956, Hindu Minority and Guardianship Act 1956, and Hindu Succession Act 1956.

Source of Law:

The phrase “source of law” has several connotations. It may be the authority which issues rules of conduct which are recognized by Courts as binding.

·  In this context, ‘source of law’ means ‘the maker of law’. It may mean the social conditions which inspires the making of law for the governance of the conditions.

·  In this context it means ‘cause of law’. It may also mean in its literal sense the material from which the rules and laws are known.

· In this sense the expression means the ‘evidence of law’ and it is in this sense that the expression ‘source of law’ is accepted in Jurisprudence.

Vijnaneshwar (commentator on the Yajnavalkya Smriti and founder of Mitakshara School) has called it Jnapak Hetu i.e., the means of knowing law. It is important to study the sources of law because in every personal legal system only that rule is law which has place in its sources. A rule not laid down or not recognized in the sources is not a rule in that legal system.

The word ‘Hindu’ first appeared in the Old Persian language which was derived from the Sanskrit word Sindhu, the historic local designation for the Indus River in the north-western part of the Indian subcontinent. A Hindu is an adherent of Hinduism.

Hindu law is a set of personal laws governing the social conditions of Hindus (such as marriage and divorce, adoption, inheritance, minority and guardianship, family matters, etc.). It is not Hindus alone who must follow Hindu law but there are several other communities and religious denominations that are subject to its dominion such as Jains, Buddhists, Sikhs, Brahmo-Samajists, Prarthana-Samajists, the Virashaivas and Lingayats and the Santhals of Chhota Nagpur besides others.

In Sir Dinshah F.Mulla’s ‘Principles of Hindu Law’, the learned editor has defined ‘Hindu law’ in the following words: “Wherever the laws of India admit operation of a personal law, the rights and obligations of a Hindu are determined by Hindu law, i.e. his traditional law, sometimes called the law of his religion, subject to the exception that any part of that law may be modified or abrogated by statute.” Law as understood by Hindus is a branch of dharma.

Nature and scope:

In this article, the scope will be restricted to finding out the sources of Hindu law, and critique on some of the definitional aspects of the sources and a general critique of the sources.

Sources of Hindu Law:

The sources of Hindu law can be classified under the following two heads:

I.       Ancient Sources

Under this would come the following:

1.           Shruti

2.           Smriti

3.           Digests and Commentaries and

4.           Custom.

II. Modern Sources

Under this head would come:

1.           Justice, equity and good conscience

2.           Precedent, and

3.           Legislation.

Ancient Sources

Ancient Sources: Before the codification of Hindu Law, the ancient literature was the only source of the law. These sources can be divided into four categories:

(i) Shruti-

It literally means that which has been heard. The word is derived from the root “shru” which means ‘to hear’. In theory, it is the primary and paramount source of Hindu law and is believed to be the language of the divine revelation through the sages.

Shruti: Shruti 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, shrutis include the four vedas - rig, yajur, sam, and athrava along with their brahmanas. The brahmanas are like the apendices to the Vedas.

Vedas primarily contain theories about sacrifices, rituals, and customs. Some people believe that Vedas contain no specific laws, while some believe that the laws have to be inferred from the complete text of the Vedas.

The synonym of shruti is veda. It is derived from the root “vid” meaning ‘to know’. The term Veda is based on the tradition that they are the repository of all knowledge. Since vedas had a divine origin, the society was governed as per the theories given in vedas and they are considered to be the fundamental source of Hindu law.

Shrutis basically describe the life of the Vedic people.

There are four Vedas namely:

1. Rig Veda (containing hymns in Sanskrit to be recited by the chief priest),

2. Yajurva Veda (containing formulas to be recited by the officiating priest),

3. Sama Veda (containing verses to be chanted by seers) and

4. Atharva Veda (containing a collection of spells and incantations, stories, predictions, apotropaic charms and some speculative hymns).

Each Veda has three parts viz.

1.  Sanhita (which consists mainly of the hymns),

2. Brahmin (tells us our duties and means of performing them) and

3.  Upanishad (containing the essence of these duties).

The shrutis include the Vedas along with their components. The brahmanas are like the apendices to the Vedas. Vedas primarily contain theories about sacrifices, rituals, and customs.

Some people believe that Vedas contain no specific laws, while some believe that the laws have to be inferred from the complete text of the Vedas.

Vedas do refer to certain rights and duties, forms of marriage, requirement of a son, exclusion of women from inheritance, and partition but these are not very clearcut laws.

During the vedic period, the society was divided into varns and life was divided into ashramas. The concept of karma came into existence during this time. A person will get rewarded as per his karma. He can attain salvation through "knowledge". During this period the varna system became quite strong.

The vedic period is assumed to be between 4000 to 1000 BC. During this time, several pre-smriti sutras and gathas were composed. However, not much is known about them today. It is believed that various rishis and munis incorporated local customs into Dharma and thus multiple "shakhas" came into existence.

(ii) Smritis-

The word Smriti is derived from the root “smri” meaning ‘to remember’. Traditionally, Smritis contain those portions of the Shrutis which the sages forgot in their original form and the idea whereby they wrote in their own language with the help of their memory. Thus, the basis of the Smritis is Shrutis but they are human works.

There are two kinds of Smritis viz. Dharmasutras and Dharmashastras. Their subject matter is almost the same. The difference is that the Dharmasutras are written in prose, in short maxims (Sutras) and the Dharmashastras are composed in poetry (Shlokas). However, occasionally, we find Shlokas in Dharmasutras and Sutras in the Dharmashastras. In a narrow sense, the word Smriti is used to denote the poetical Dharmashastras.

The number of Smriti writers is almost impossible to determine but some of the noted Smriti writers enumerated by Yajnavalkya (sage from Mithila and a major figure in the Upanishads) are Manu, Atri, Vishnu, Harita, Yajnavalkya, Yama, Katyayana, Brihaspati, Parashar, Vyas, Shankh, Daksha, Gautama, Shatatapa, Vasishtha, etc.

The rules laid down in Smritis can be divided into three categories viz.

1.       Achar (relating to morality),

2.       Vyavahar (signifying procedural and substantive rules which the King or the State applied for settling disputes in the adjudication of justice) and

3.       Prayaschit (signifying the penal provision for commission of a wrong).

Smrit means "what is remembered". With smrutis, a systematic study and teaching of Vedas started. Many sages, from time to time, have written down the concepts given in Vedas. So it can be said that Smrutis are a written memoir of the knowledge 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 that many smrutis were composed in this period and some were reduced into writing, however, not all are known.

The smrutis can be divided into two –

I.             Early smritis (Dharmasutras) and

II.           Later smritis (Dharmashastras).

Dharmasutras:

The Dharmansutras were written during 800 to 200 BC. They were mostly written in prose form but also contain verses. It is clear that they were meant to be training manuals of sages for teaching students. They incorporate the teachings of Vedas with local customs. They generally bear the names of their authors and sometime also indicate the shakhas to which they belong. Some of the important sages whose dharmasutras are known are: Gautama, Baudhayan, Apastamba, Harita, Vashistha, and Vishnu.

They explain the duties of men in various relationship. They do not pretend to be anything other than the work of mortals based on the teachings of Vedas, and the legal decisions given by those who were acquainted with Vedas and local customs.

Gautama - He belonged to Samveda school and deals exclusively with legal and religious matter. He talks about inheritance, partition, and stridhan.

Baudhayan - He belonged to the Krishna Yajurved school and was probably from Andhra Pradesh. He talks about marriage, sonship, and inheritance. He also refers to various customs of his region such as marriage to maternal uncle's daughter.

Apastamba - His sutra is most preserved. He also belonged to Krishna Yajurveda school from Andhra Pradesh. His language is very clear and forceful. He rejected prajapatya marriage.

Vashistha - He was from North India and followed the Rigveda school. He recognized remarriage of virgin widows.

Dharmashastras:

Dharmashastras were mostly in metrical verses and were based of Dharmasutras. However, they were a lot more systematic and clear. They dealt with the subject matter in three parts

• Aachara : This includes the theories of religious observances,

• Vyavahar : This includes the civil law.

• Prayaschitta : This deals with penance and expiation.

• The Hindu Marriage Act, 1955,

• The Hindu Adoptions and Maintenance Act, 1956,

1. The Hindu Succession Act, 1956,

• The Hindu Minority and Guardianship Act, 1956, etc.

Modern Sources of Hindu Law:

While early smrutis deal mainly with Aachara and Prayaschitta, later smrutis mainly dealt with Vyavahar. Out of many dharmashastras, three are most important.

Manusmriti:

This is the earliest and most important of all. It is not only defined the way of life in India but is also well known in Java, Bali, and Sumatra. The name of the real author is not known because the author has written it under the mythical name of Manu, who is considered to the first human. This was probably done to increase its importance due to divine 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 most important. He directs the king to obey the customs but tries to cloak the king with divinity. He gives importance to the principle of 'danda' which forces everybody to follow the law. Manusmriti was composed in 200 BC.

There have been several commentaries on this smruti. The main ones are: Kalluka's Manavarthmuktavali, Meghthithi's Manubhashya, and Govindraja's Manutika.

Yajnavalkya Smriti:

Though 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 king to be below the law. He considers law to be the king of kings and the king to be only an enforcer of the law. He did not deal much with religion and morality but mostly with civil law. It includes most of the points given in Manusmriti but also differs on many points such as position of women and sudras. He was more liberal than Manu. This was composed in around 0 BC.

Vijnaneshwar's commentary 'Mitakshara' on this smruti, is the most important legal treatise followed almost everywhere in India except in West Bengal and Orissa.

Narada Smriti:

Narada was from Nepal and this smriti is well preserved and its complete text is available. This is the only smriti that does not deal with religion and morality at all but concentrates only on civil law. This is very logical and precise. In general, it is based on Manusmriti and Yajnavalkya 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 200 AD.

(iii) Digests and Commentaries-

After Shrutis came the era of commentators and digests. Commentaries (Tika or Bhashya) and Digests (Nibandhs) covered a period of more than thousand years from 7th century to 1800 A.D. In the first part of the period most of the commentaries were written on the Smritis but in the later period the works were in the nature of digests containing a synthesis of the various Smritis and explaining and reconciling the various contradictions.

The evolution of the different schools of Hindu law has been possible on account of the different commentaries that were written by various authorities. The original source of Hindu law was the same for all Hindus. But schools of Hindu law arose as the people chose to adhere to one or the other school for different reasons.

After 200 AD, most of the work was done only on the existing material given in Smrtis. The work done to explain a particular smriti is called a commentary. Commentaries were composed in the period immediately after 200 AD. Digests were mainly written after that and incorporated and explained material from all the smritis.

As noted ealier, some of the commentaries were, manubhashya, manutika, and mitakshara. While the most important digest is Jimutvahan's Dayabhag that is applicable in the Bengal and Orissa area.

Mitakshara literally means 'New Word' and is paramount source of law in all of India. It is also considered important in Bengal and orissa where it relents only where it differs from dayabhaga. It is a very exhaustive treaties of law and incorporates and irons out contradicts existing in smritis.

The Dayabhaga and Mitakshara are the two major schools of Hindu law. The Dayabhaga School of law is based on the commentaries of Jimutvahana (author of Dayabhaga which is the digest of all Codes) and the Mitakshara is based on the commentaries written by Vijnaneswar on the Code of Yajnavalkya.

The basic objective of these texts was to gather the scattered material available in preceeding texts and present a unified view for the benefit of the society. Thus, digests were very logical and to the point in their approach. Various digests have been composed from 700 to 1700 AD.

(iv) Custom-

Custom is a principle source and its position is next to the Shrutis and Smritis but usage of custom prevails over the Smritis. It is superior to written law.

Custom is regarded as the third source of Hindu law. From the earliest period custom (‘achara’) is regarded as the highest ‘dharma’. As defined by the Judicial Committee custom signifies a rule which in a particular family or in a particular class or district has from long usage obtained the force of law.

Most of the Hindu law is based on customs and practices followed by the people all across the country. Even smrutis have given importance to customs. They have held customs as transcendent law and have advised the Kings to give decisions based on customs after due religious consideration. Customs are of four types:

1.       Local Customs- These are the customs that are followed in a given geographical area. In the case of Subbane vs Nawab, Privy Council observed that a custom gets it force due to the fact that due to its observation for a long time in a locality, it has obtained the force of law.

2.       Family Customs- These are the customs that are followed by a family from a long time. These are applicable to families where ever they live. They can be more easily abandoned that other customs. In the case of Soorendranath vs Heeramonie and Bikal vs Manjura, Privy Council observed that customs followed by a family have long been recognized as Hindu law.

3.       Caste and Community Customs- These are the customs that are followed by a particular cast or community. It is binding on the members of that community or caste. By far, this is one of the most important source of laws. For example, most of the law in Punjab belongs to this type. Custom to marry brother's widow among certain community is also of this type.

4.       Guild Customs - These are the customs that are followed by traders.

Requirements for a valid custom:

1. Ancient  Ideally, a custom is valid if it has been followed from hundreds of years. There is no definition of ancientness, however, 40yrs has been determined to be a ancient enough. A custom cannot come into existence by agreement. It has to be existing from long before. Thus, a new custom cannot be recognized. Therefore, a new form of Hindu marriage was not recognized in Tamil Nadu. In the case of Rajothi vs Selliah, a Self Respecter’s Cult started a movement under which traditional ceremonies were substituted with simple ceremonies for marriage that did not involve Shastric rites. HC held that in modern times, no one is free to create a law or custom, since that is a function of legislature.

2. Continuous: It is important that the custom is being followed continuously and has not been abandoned. Thus, a custom may be 400 yrs old but once abandoned, it cannot be revived.

3. Certain: The custom should be very clear in terms of what it entails. Any amount of vagueness will cause confusion and thus the custom will be invalid. The one alleging a custom must prove exactly what it is.

4. Reasonable: There must be some reasonableness and fairness in the custom. Though what is reasonable depends on the current time and social values.

5. Not against morality: It should not be morally wrong or repugnant. For example, a custom to marry one's granddaughter has been held invalid. In the case of Chitty vs. Chitty 1894, a custom that permits divorce by mutual consent and by payment of expenses of marriage by one party to another was held to be not immoral. In the case of Gopikrishna vs. Mst Jagoo 1936 a custom that dissolves the marriage and permits a wife to remarry upon abandonment and desertion of husband was held to be not immoral.

6. Not against public policy: If a custom is against the general good of the society, it is held invalid. For example, adoption of girl child by nautch girls has been held invalid. In the case of 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.  Not against any law: If a custom is against any statutory law, it is invalid. Codification of Hindu law has abrogated most of the customs except the ones that are expressly saved. In the case of Prakash vs Parmeshwari, it was held that law mean statutory law.

Proof of Custom:

The burden of proving a custom is on the person who alleges it. Usually, customs are proved by instances. In the case of Prakash vs Parmeshwari, it was held that one instance does not prove a custom. However, in the case of Ujagar vs Jeo, it was held that if a custom has been brought to notice of the court repeated, no further proof is required. Existence of a custom can also be proved through documentary evidence such as in Riwaz-i-am. Several treaties exist that detail customary laws of Punjab.

Usage and Custom:

The term custom and usage is commonly used in commercial law, but "custom" and "usage" can be distinguished. A usage is a repetition of acts whereas custom is the law or general rule that arises from such repetition.

A usage may exist without a custom, but a custom cannot arise without a usage accompanying it or preceding it. Usage derives its authority from the assent of the parties to a transaction and is applicable only to consensual arrangements. Custom 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.

Hindu law has been greatly influenced by the British rule. While it might seem that the British brought with them the modern concepts of equity and justice, these concepts existed even in dharamashastras albeit in a different form. Narada and Katyayana have mentioned the importance of dharma (righteousness) in delivering justice. However, we did not have a practice of recording the cases and judgments delivered. So it was not possible to apply stare decisis. This process started from the British rule.

The following are the modern sources of Hindu law:

1.   Equity, Justice, and Good conscience: Equity means fairness in dealing. Modern judicial systems greatly rely on being impartial. True justice can only be delivered through equity and good conscience. In a situation where no rule is given, a sense of 'reasonableness' must prevail.

Occasionally it might happen that a dispute comes before a Court which cannot be settled by the application of any existing rule in any of the sources available. Such a situation may be rare but it is possible because not every kind of fact situation which arises can have a corresponding law governing it.

The Courts cannot refuse to the settle the dispute in the absence of law and they are under an obligation to decide such a case also. For determining such cases, the Courts rely upon the basic values, norms and standards of fair play and propriety.

In terminology, this is known as principles of justice, equity and good conscience. They may also be termed as Natural law. This principle in our country has enjoyed the status of a source of law since the 18th century when the British administration made it clear that in the absence of a rule, the above principle shall be applied.

According to Gautama, in such situation, the decision should be given that is acceptable to at least ten people who are knowledgeable in shastras. Yagyavalkya has said that where ever there are conflicting rules, the decision must be based on 'Nyaya'. This principle has been followed by the Privy Council while deciding cases. 

2.   Precedent: The doctrine of stare decisis started in India from the British rule. All cases are now recorded and new cases are decided based on existing case laws.

After the establishment of British rule, the hierarchy of Courts was established. The doctrine of precedent based on the principle of treating like cases alike was established. Today, the judgment of SC is binding on all courts across India and the judgment of HC is binding on all courts in that state, except where they have been modified or altered by the Supreme Court whose decisions are binding on all the Courts except for itself.

3.   Legislation: Legislations are Acts of Parliament which have been playing a profound role in the formation of Hindu law. After India achieved independence, some important aspects of Hindu Law have been codified.

   Few examples of important Statutes are:

After codification, any point dealt with by the codified law is final. The enactment overrides all prior law, whether based on custom or otherwise unless an express saving is provided for in the enactment itself. In matters not specifically covered by the codified law, the old textual law contains to have application.

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 example, a new way of performing Hindu marriages in Tamil Nadu that got rid of rituals and priests was rejected by the SC on the basis that new customs cannot be invented. However, TN later passed an act that recognized these marriages.

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

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