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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
Sources of hindu law

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. 
     

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