SOURCES OF HINDU LAW

SOURCES OF HINDU LAW

Introduction:

• The origin of Hindu law is nearly 6000 years old.
• It is believed that Hindu law is a divine law. It revealed to the people by God through Vedas.
• The word Hindu first appeared in the old Persian language derived from the Sanskrit word Sindu.
• Hindu law is a set of personal laws governing the social conditions of Hindus, i.e., marriage, divorce, adoption, guardianship, etc.

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

Ancient                                                                               

1. Shrutis:

• What is being heard?
• Derived from the root word “shru,” it means ‘to hear.’
• The synonym of shruti is Veda, and the root of the word Veda is ‘vid’ means ‘to know.
• Vedas contains theories about sacrifices, rituals, customs.

The Shruti contains four Vedas, six verandas, and eighteen Upanishads. The for Vedas are known as-

• The Rig- Veda
• The Sama- Veda
• The Yajur -Veda
• The Atharva- Veda

• Shrutis are the primary or foremost source of Hindu law.
• According to theory, Rushis and Munis have acquired complete knowledge of all the Vedas.

2. Smirtis:

• What is being remembered?
• Derived from root ‘smri’ means to remember.
• Smirti leads to teaching and studying Vedas.
• Smirtis are the ideas of sages, munis, rushis.
• There are two kinds of smirtis:
  • Dharmashastras   {composed in poetry (shlokas)}.
  • Dharmasutaras (written in prose, in short maxims).

3. Digest and Commentaries:

• Explain a particular Smriti is called commentary.
• Digests were mainly written after explained material from all Smriti.
• The duty to analyze the principle of law propounded by Shrutis and smritis are presented in an organized manner and is performed by digest counters and commentators.

4. Customs:

• The third source of Law in regard.
• It has been followed hundreds of years.
• It is the single contribution of the historical school of jurisprudence.
• Narad Smriti says that customs are powerful they are above the religion.
• Indian court recognize three type of courts:
  • Local: in particular religion or locality.
  • Class: particular class
  • Family: binding upon the members of the society

• A valid custom should be:
  • Continuous
  • Ancient
  • Certain
  • Reasonable
  • In public interest
  • Lawful

Modern

i.    Equity, Justice and Good Conscience:

• Equity means fairness in dealing.
• The justice can only be derived through Equity and good conscience.

In Guru Mukh V. kamala bai [ 1951]It was held that where there is a lack of rules off Hindu law over any subject, the court should pronounce their decision based on Equity, justice, and good conscience.

 ii.    Precedent:

• Judicial precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarities.
• Doctrine of judicial precedent is based on the principle of stare decisis (to stand by the decided).
• According to article 141 of the Indian constitution, the Supreme court’s judgment is binding on all courts.

iii.    Legislation:            

• Legislations are the act of parliament.
• The Hindu laws are modified and supplemented in certain respect by the acts of the legislation.