Source of Hindu law notes

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Source of Hindu law

Hello, dear reader in this post we will discuss all about the Source of Hindu law notes. Source of law is a basis which enables the Courts to interpret law. Hindu law is about 6000 years old and the study of the source of Hindu Law is the study of its various phases of development to meet the changing needs.

The source of Hindu Law may be classified on the following heads-

Ancient source (traditional source)

  • Sruti (Vedas);
  • Smritis;
  • Digests and Commentaries;
  • Customs

The modern Source of Hindu law

  • Equity, justice and good conscience
  • Precedent
  • Legislation

Now let’s discuss the Ancient Source (Traditional Source) of Source of Hindu law notes

Ancient Source (Traditional Source)

The ancient Hindu legal system recognized the following for sources-

Sruti (Vedas)

The Primary and important source of Hindu Law is Sruti or Vedas. The four Vedas are the foundation head of Hindu religion and law. The word ‘Sruti’ literally means “what was heard”. In other words, “what is heard by Rishis (sages) from God is Sruti of Vedas”. 

Vedas means knowledge or to know. There are four Vedas namely the Rig, the Yajur, the sama and the Atharvana. Vedas contain the voice of God. These Vedas contain the sacred lore and esoteric knowledge of Hindus and came into existence long before 4000-1000 B.C.

Smritis

Smritis are the most important source of Hindu law. The word ‘Smriti’ literally means “what has been remembered”. Sruti (Vedas) represent direct words of God as heard by the sagas, while Smritis represent what was remembered from the words of God heard by sagas.

The early smritis were termed as Dharma Sutras (800-200B.C.). They were mostly in prose form and were written by the teachers expounding Vedas for the sake of their students. Gautama Baudhayana, Apastamba, Vasistha, Vishnu and Harita are the main Dharma Sutra Karta

The later Smritis were termed as Dharma Sastras which are more systematic exposition than Dharma Sutras. The subject matter of these Smritis is divided into Achara Vyavahara and Prayaschitta.

The principal of law are mostly covered under the part Vyavahara, Manu, Narad and Yagnavalkya are the important Smritikar. Manusmriti is the oldest Smriti and is of great importance and is considered as the ‘reservoir of law’

Although Smriti deals with rules of morality and religion, we find more of secular law than the Smritis. For all principal proposes the interpretation of the Smritis by the commentaries written on them from the basis of Hindu law. Where there is a conflict between the Vedas and Smritis, the Vedas should prevail.

Digests and Commentaries

Digests and commentaries cover a period of about 1000 years from 700 A.D. to 1700 A. D.  Notable Smritis and digests are namely, Manubhasya written by medhatithi (895-900 A.D.) manavata Muktavali written by Kulluka Bhatta (1250 A.D.) Mitakshara, a famous commentary written; Vignaneswara (1100 A.D.) Aparaditya written Aparaka (1200 A.D.) etc.

All the Smritis did not agree with one another in all respects and did not give the whole of the law with all the details. the writings of Smritis was followed by the writing of a large number of commentaries and digests upon them. They are Nibandhas.

Nibandhas are nothing but the interpretations of the smritis. There is a sharp distinction between the Smritis and the commentaries thereof. A code enunciated by the Smritis has the source of law, it is equivalent to the statue, while the commentators did not merely interpret the Smritis, they also recited the custom and usage which the commentators found prevailing around them.

The commentators have modified the original text in order to suit them to local customs and conditions and the commentaries are now considered to be more authoritative than the original text themselves.

In collector of Madhura vs Moothoo Ramalinga

It was held that commentaries on dharma Shastra do not grant a licence to act according to Smritis but permit one to act in accordance with any of the options enjoyed by Dharmashastras.

In Kasturi Devi vs Chiranjilal, AIR 1960

The Allahabad High Court held that although the commentators might have been wrong in their interpretation of the original text, their opinion should have primacy, for they have the sanction of usage.

Custom

Custom may be defined as the mood of life adopted by a set of people or by all people of the particular locality or of the entire country.

In every act of Hindu law, custom has be defined as under

“The expression ‘custom’ and ‘usage’ signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group of family

(a)  provided that the rule is certain and not unreasonable or opposed to public policy; and

(b)   provided further that in the case of a rule applicable only to a family it has not been discontinued by the family”

Source of Hindu law notes

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Kind of custom

Local custom

Local customs are those customs which are confined to a particular locality like a village or town, district, state, country and binding on all inhibitions of the locality. The general custom of the realm is that which prevails throughout the country and constitutes one of the sources of common law of the land

Class customs are Caste customs

Class customs are the Custom of a caste, a set of community of the followers of the particular profession or occupation such as agriculture, trade, mechanical art and the like.

For example:-

In Venkata subbaiah vs Bhujangayya,1960

It has been held that the custom amount the Kamma caste in Andhra Pradesh that the presents given to the bridegroom by the bride’s people should be returned to them in the event of the bride dying issueless and intestate, is established beyond all reasonable doubt.

Family custom

Family customs are those customs which are confined to a particular family only and do not apply to persons who are not members of such family.

In Surendranath Roy vs Heeramonee Burmoneah, the Privy Council observed: “custom binding inheritance in a particular family has been recognised in India”.

For example, the custom of yeshthansha (largest share) under which the eldest son gets the largest share in the property left by the father than other sons. A custom that a property should remain impartible being held by one man at a time is another instance of a family custom.

Modern Sources of Hindu Law

Equity, justice and Good Conscience are the principle of English low, which owes its origin to the beginning of the British administration of justice in India. The ancient Hindu law had its own version of the doctrine of equity, justice and good Conscience.

The character of several High Court established by the British Government directed that, when the law was silent on the particular point, the case was to be decided in accordance with the principle of justice, equity and good conscience. Letter the Supreme Court of India applied the principle of justice, equity and Conscience in the absence of any rule of Hindu law.

Precedent

According to the Oxford dictionary, “Precedent” means a previous instance or case, which is or may be taken as an example of a rule for subsequent case. It is called ‘judicial precedent’. According to Bentham Precedents are judge-made laws.

Legislation

The term ‘legislation’ is derived from the Latin word ‘legislatum’ which means “lawmaking power”. According to Salmond, legislation is that source of low, which consists in the declaration of legal rules by a competent authority. The lawmaking body is called “legislative body or legislative authority or legislature”.

Source of Hindu law notes

Origin of Hindu law

There are two extreme views as regards the origin of Hindu law. The first views believes it to be of divine origin whereas according to the other views it is based upon immemorial customs and usages

First views

According to Hindu, Hindu law is of divine origin, having been derived from the Vedas, which are revelations from the Almighty and which Austin calls the law of God.

As per this theory, law was independent of the State and it was binding on the Sovereign as well as on his subject. Hindu law is considered Apauruseya.

“since the law is the King of kings far more powerful and rigid than they, nothing can be mightier than the law by whose aid, as by that of the highest Monarch, the weak may prevail over the strong”. It is, therefore, evident that the theory or rule of law is not new to Hindus.

Second views

European jurists, who do not accept the Hindu idea of the divine origin of law, say that Hindu law is based upon immemorial customs, which existed prior to and independent of Brahmanism. When the Aryans presented into India, they found that there were a number of usages either the same as or not wholly different from, their own.

They accept these usages with or without modification rejecting only those which were incapable of being assimilated, such as, polyandry, incestuous marriage and the like.

Brahmanism modified the current customs by introducing the religious element into legal conception firstly; by attributing pious purposes to purely secular acts; secondly, by adding restrictions to those act suitable to those pious purposes; and thirdly; altering the custom themselves as so to further the special objects of religion or policy favoured by Brahmanism.

Criticism

Both the above views, according to Mayne are incorrect. He says that since the publication of the original textbooks, translated commentaries and digest and the research work, it has become quite evident that the Smrities were in part based upon contemporary or anterior usages, and in part, on rule framed by Hindu jurists and rulers of the country.

They did not purport to be exhaustive and, therefore, provided for the recognition of the usages which they had not incorporated in larger commentaries and digests. The commentaries and digest writer were equally the exponents of usages of their time in those parts of India where they were composed.

Both the ancient Smrities and the subsequent commentaries were evidently recognized as authoritative statements of Law by the rulers and by commentaries in the various parts of India. They were mostly composed under the authority of the rulers themselves or by learned and influential people who were either their ministers or spiritual advisor.

The prescribed courses of studies for the Brahmans and Kshatriyas as well as for the rulers of the country, obviously. The rulers in Smrities which were sometimes all too brief were supplemented by oral instruments in the law school whose duty was to train people to become Dharmshastris.

Nature of Hindi Laws

Following are the nature of Hindu law-

Law is the command which, the sovereign power, in a political society, imposes on the subject or member of the society. As the Hindu Code does not profess to embody the commands of any kind on Earth, it might seem that the Hindu had never such a thing as could be called their law.

It is true that our codes do not embody the commands of any sceptred monarch. But it must be encoded by everyone who knows everything of the mechanism of our society that the Brahmins were the real rulers of the country.

So long at least as Hindu kings occupied the throne of Hindu community, the Brahmins enjoyed supreme legislative power, and the commands imposed by them were generally obeyed

Mayne defined Hindu law “as the law of the Smritis as expounded in the  Sanskrit commentaries and digests which as modified and supplemented by custom is administered by Courts”

It is one of the most ancient systems of law known to the word. Mayne in his “Hindu law and usages” recognized this fact when he says, Hindu law has the oldest pedigree of any known system of jurisprudence and even now it shows no sign of decrepitude.

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