Ancient Sources of Hindu Law
(1) Sruti
Srutis are believed to contain the very words of God. They are supposed to be the divine utterances to be found in the four Vedas, (namely the Rig Veda, the Yajur Veda, the Sama Veda and the Atharva Veda), the six Vedangas (i.e. appendages to the Vedas) and the eighteen Upanishadas. They are mostly religious in character. In theory Sruties are considered to be the primary and paramount sources of Hindu Law.
(2) Smriti
They are utterances and precepts of the Almighty, which have been heard and remembered, and handed down by the Rishis (sages) from generation to generation. The exact number of Smritis (or Codes) is not definitely known, but the earliest one seems to be the Manu Smriti. The Smritis are divided in to primary and secondary Smritis, the latter being later in date; the primary Smrities are again classified in to:- (i) Dharama Sutras (ii) Dharamshastras.
(3) Commentaries and Digests
The commentaries though professing and purporting to rest on the Smritis, explained, modified and enlarged the traditions recorded therein to bring them into harmony and accord with prevalent practice of the day to suit the felt necessities of the time.
The manusmriti and the Yajanavalkya smriti have found the greatest number of commentators.
(4) Customs
Where there is a conflict between a custom and the text of the Smritis, such custom will override the text
Custom may be defined as a habitual course of conduct generally observed in a community. In a singular contribution of historical school of jurisprudence that it conclusively established that in early societies. Custom was the main vehicle of legal development.
Kinds of Customs
- Customs may be broadly divided into (i) local customs, (ii) class customs, and (iii) family customs.
- Essentials of a valid custom – In order to be valid, a custom must satisfy the following six requirements:-
- It must be ancient.
- It must be certain.
- It must also be reasonable.
- It must be continuous.
- It must not be opposed to public policy.
- It must not be opposed to any law.
- Essentials of a valid custom – In order to be valid, a custom must satisfy the following six requirements:-
The following are examples of customs, which the Courts have refused to recognise:-
- A caste custom, authorising a wife to abandon her husband, and marry again without his consent.
- A custom permitting a husband to dissolve his marriage without the consent of the wife by paying a fixed sum of money.
- The custom among dancing girls of adopting one or more daughters.
- A custom in South India, according to which a man could marry his daughter’s daughter.
Burden of proof
- The burden of proof of a custom of Hindu Law which is derogatory to that law is upon the person who asserts it. Conversely, when a custom has been proved, the burden of proving its discontinuance lies on the party who alleges such discontinuance.
- Modern Sources
- (1) Justice, equity and good conscience
- In the absence of any specific law in the Smriti, or in the event of a conflict between the Smritis, the principles of justice, equity and good conscience would be applied.
- The Supreme Court has observed in Gurunath v. Kamlabai (A.I.R. 1955 S.C. 206), in the absence of any clear Shastric text, the Courts have the authority to decide cases on principles of justice, equity and good conscience.
- (2) Precedent
- Precedent is called to be a source of Hindu Law in two sense:-
- Firstly:-All the important principles and rules of Hindu Law have now been embodied in case law. In such matters, recourse to original sources is not necessary. Reference to leading decision is enough. In this sense, precedent or case law is the source, by and large, of most of the law rules and principles of Hindu law.
- Secondly:-Precedent is a source of law in the sense that by the process of judicial interpretation, doctrines, principle and rules of law stand modified or altogether new principles, doctrines and rules have been introduced in the body of Hindu Law.
- (3) Judicial decisions
- Judicial decisions on Hindu Law are sometimes spoken of as a source of law. Almost all the important points of Hindu Law are now to be found in the law reports and to this extent it may be said that the decisions on Hindu Law have superseded the commentaries.
- In Shri Krishna Singh v. Mathura Ahir, (1981) 3 S.C.C. 689, it was observed that in applying Hindu law, the Judge should not introduce his own concepts of modern times, but should enforce the law as derived from recognised and authoritative sources of Hindu law, i.e. Smritis and commentaries, as interpreted in the judgments of the various High Courts, except where such law is altered by any usage or custom, or is modified or abrogated by statute.
- (4) Legislation
- Several enactments had come into force with the coming of British rule in India, and kept coming after the British departure. These legislative enactments which declare, abrogate or modify the ancient rules of Hindu Law, thus form an additional modern source of Hindu Law.
- The Hindu Law Committee, appointed in 1941, recommended that this branch of the law should be codified in gradual stages. However, the most important enactments were those which came in force 1955 and 1956, namely the Hindu Marriage Act, the Hindu Minority and Guardianship Act, the Hindu Succession Act, Hindu Adoption and Maintenance Act.
- Several amendments have been made in the four principal Acts referred to above. Notable amongst such amendments was the one passed in 1976, which has radically modified in Hindu Marriage Act, as for instance, by introduction, for the first time amongst the Hindus, the concept of divorce by mutual consent.
SCHOOLS OF HINDU LAW
There are two main schools of Hindu Law, the Mitakshara and the Dayabhaga. The Mitakshara (literally meaning “a concise work”) is a running commentary on the code of Yajnavalkya. It has been written by Vijnaneshwar (11th century) and prevails in all parts of India, except in Bengal. The Dayabhaga School, which is followed mainly in Bengal, is not a commentary on any particular code, but is a digest of all the codes. It has been written by Jimutavahana, 12th century. It may also be noted that the Mitakshara is the orthodox school, whereas the Dayabhaga (or the Bengal school, as it is sometimes called) is the reformist school of Hindu Law. The Dayabhaga School is considered to be a dissident school of the old Benares School.
The Dayabhaga is not divided into any sub-schools. However, the Mitakshara is sub-divided into four schools prevailing in different parts of India. These different schools have the same fundamental principles, but differ in matters of details, especially with reference to the topics of adoption and inheritance. These four sub-schools are as follows:-
- The Benares School, which prevails in northern and north-western India except in rural Punjab where its authority has been considerably modified by customary law. The main authorities of the school are: the Virmitrodaya and the Nirnaya Sindhu.
- The Mithila School, which has most of its followers in Bihar. The main authorities are: the Vivada Chintamani, the Vivada Ratnakara, the Madana Parijata and the Vyavahara Mayukha.
- The Dravida or Madras School, which prevails in southern India. The principle authorities are the Smriti Chandrika, the Parashara Madhaviya, the Saraswati Vilasa and the Vyavahara Nirnaya.
- The Maharashtra or Bombay School, which prevails in western India. The main authorities of the school are: the Viramitrodaya and the Nirnaya-Sindhu.
The differences between the Mitakshara and Dayabhaga Schools:The fundamental points of difference between the Mitakshara and Dayabhaga Schools of law may be summarised as follows:
| Mitakshara | Dayabhaga | |
| Joint Property | Right to property arises by birth (of the claimant) | Right to property by death ( of the last owner) |
| Alienation | Members of joint family cannot dispose of their shares while undivided | Any member of joint family may sell or give away his share even when undivided |
| Inheritance | The principle of inheritance is Consanguinity (i.e., blood-relationship). But cognates are postponed to agnates | The principle of inheritance is spiritual efficacy (i.e., offering of pandas) Some cognates, like sister’s sons are preferred to many agnates |
| Doctrine of Factum Valet | A fact cannot be altered by hundred texts. It is recognized to a very limited extent | Doctrine of factum valet is fully recognized |
Besides the above points, the other basis of difference between Mitakshara and Dayabhaga arose out of their differences in the meaning of the word “Sapinda”. According to Dayabhaga ‘Sapinda’ means of the same ‘pinda’ means a ball of rice which is offered by a Hindu as obsequies to their deceased ancestors. The term ‘Sapinda’ thus connotes those related by the duty of one to offer ‘pinda’ to the other. On the other hand, Vijnaneswara defined ‘Sapinda’ relationship as the relationship arising between two persons through their being connected by particles of one body.
This fundamental difference in the term “Sapinda”. Resulted in the formulation of the rules of law, which were in material respect quite distinct from each other.
