Updated: Mar 1, 2022
SOURCES OF HINDU LAW
Source means “basis from which law is evolved”. Source of Iaw’ is a basis, which enables the courts to interpret law”.
Keeton defines ‘sources “the material out of which law is eventually fashioned through tire activity of judges”. Hindu law is about 6000 years old and the study of the sources of Hindu Law is (the study of its various phases of development to meet the changing needs. Hindus considered Vedas as the material source of all knowledge. Hindu law is not only divine, but also sacrosanct, inviolable, and unchangeable. It cannot be questioned, challenged or violated.The sources of Hindu Law may be classified under the following:
1. Ancient or Traditional Sources
Digests and Commentaries; and
2. Modern Sources
Equity, justice and good conscience;
Ancient/Traditional Sources: The ancient Hindu legal system recognized the following four sources:
Ancient or Traditional 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 or Veda”. ‘Veda’ 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 the Hindus and came into existence long before 4000-1000 B.C.
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 sages, while Smritis represent what was remembered from the words of God heard by sages. The early smritis were termed as Dharma Sutras (800-200 B.C.). They were mostly in prose form and were written by the teachers expounding Vedas for the sake of their students. Gautama. Boudhayana, Apasthamba, Vasishta, Vishnu and Harita are the main Dharma Sutra Karas. The later Smritis were termed as Dharma Sashtras which are more systematic expositions than Dharma Sutras. The subject matter in these smritis is divided into Achara Vyavahara and Prayaschitta.
The principles of law are mostly covered under the pail, Vyavahara. Manu, Narada and Yagnavalkya are the important smritikars. Manusmriti is the oldest smruthi and is of great importance and is considered as a ‘reservoir of law’. (It has 12 chapters containing 2,694 slokas). The Code of Manu in its present form of 2694 Slokas dates from 200 B.C. according to Max Muller. The Code deals with many matters, but the part bearing upon law deals with the subject under 18 titles; debts, pledges, sales, deposits, partnership, gifts, wages, agreements, boundary, disputes, master and servant, husband and wife, partition and inheritance, betting and gambling, assault, defamation, theft, robbery and adultery.
Digests and Commentaries:
The Digests and ('ommentaries cover a period of about 1000 years from 700 A.D. to 1700 A.D. Notable smritis and digests are namely, Manubhashya written by Medhatithi (895-900 A.D.), Manavata Muktavali written by Kulluka Bhatta (1250 A.D.), Mitakshara, a famous commentary written; by Vignaneswara (1100 A.D.)1, Aparaditya written by Aparaka (1200 A.D.) etc. In addition, there are certain regional digests and commentaries like Smriti Chandrika written by Devammabhatta in South India (120 A.D.), Viramilrodaya written by Mitramisra (17,h (’entury) in Western India, Vivadachintamani written by Vachaspathi (I5'h Century) in Mithila, the above Viramitrodaya in Banaras, and yet another famous work Dayabhaga written by Jimutavahana (12lh ('entury). The rules enshrined in Smritis were not clear and were not free from conflicts. For facilitating the administration of justice, necessity arose to analyse and systematise the smritis, by the commentators and digest writers. The important commentaries are namely, Manutika, Manubhashya, Mitakshara, Dayabhaga etc.
Manu recognized custom to be transcendent law, ‘Custom’ means “Achara or usage”, a traditionally followed long practice, by the members of society. Hindu philosophy enunciates l hat ‘Achara Paramodharmaha’. It is a good source to interpret the law in the administration of justice.
The Privy Council in Collector of Madhura vs. Mootoo Ramalinga Sethupathy (1868) 12 M.L.A. 197, also has recognized ‘Custom’ as the supreme authority in Hindu Law. The question that arose in the instant case was, whether in the I havida country (South India) a widow could make adoption even in the absence of express authority from her husband.
Examples of such customary practices were given to show that with the authority of the deceased husband’s Sapindas a valid adoption could be made by the widow. The relevant text of the Sage Vasishta was to the effect that a woman should not adopt except with her husband’s permission.
The Privy Council pointed out that it was not open to the judges to embark upon an independent enquiry into the meaning of the Dharma Sastra text. The text is to be understood only in the light of the actual practice. Sir James Colville observed in this case: “Under the Hindu System of law clear proof of usage will outweigh the written text of the law”. Custom is a bonafide practice being observed by the people in general from generation to generation and the starting point of which is unknown. A custom to be valid, it must be
d) moral; and
c) not contrary to the statutory law in force.
There are different customs as detailed below;
ii)Family Custom, and
iii)Caste or Community Custom.