The Origin, Nature & Sources of Hindu Law

According to Hindu law, the law is identified with dharma and is supposed to have its origin from the god itself. The king and its subjects are equal in the eyes of law. The ultimate aim of life, as per Hindu law is to attain salvation ( moksha ). As we all know the human body is mortal but the soul is immortal. when a man dies his soul acquires a new form, and this cycle continues until that very man attains moksha from the world.There are four goals of human life, i.e., Artha, Dharma, kama, moksha. out of these dharma stands foremost.

According to Hindu law, the law is an enforceable part of dharma. it has been believed that the law does not emanate from the sovereign. He (king) himself is not exempt from the law. He has to perform his duties as mentioned in the Smritis. The term dharma includes all kinds of rules whether religious, legal, physical, metaphysical.Dharma is what is followed by learned class, as per Vedas, and what is approved by those who are free from hatred and inordinate affections.

Hindu Law is not Lex Loci

It should also be noted that the Hindu Law is not a territorial law. In other words it is not a “lex-loci” (law of Locality i.e., which applies only to a particular locality or State) but a “personal law”. It means that a Hindu, in whatever country he may be, is governed by Hindu Law in all personal matters. Territorial law of that country would not apply on the personal matters’ of that Hindu.

THE ORIGIN OF HINDU LAW

There are two extreme  views about the origin of Hindu Law. According to one view it is of “divine origin” while the other view is that it is based upon immemorial customs and usages.

As per the first theory, the Hindu law is considered to have a divine origin from the Almighty God. It is believed to have originated from the Vedas, which are the revelation of God.  It further states that the law is independent of the state and it is binding on both the king and the subjects with the same legal force. Hindu law is also called Apauruseya.

Whereas, the second theory states that the Hindu law is based on immemorial customs, religious texts and scriptures that were in existence prior to Brahmanism. After the invasion of the Aryans, some customs and usages that were familiar with their earlier practices were adopted by them. It results in the formation of Hindu law. The Aryans don’t recognise such customs as polyandry, incestuous marriage etc.

In ancient times, the law was often equated with “Dharma”. With the changing times, it was modified to ensure that the social and moral life of the Hindu’s continued with a diverse element of Harmony. It was rightly quoted by Mr Henry Maine that the “Hindu law has the oldest pedigree of any known system of jurisprudence and even now it shows no signs of decrepitude”.

THE NATURE OF HINDU LAW

Hindu law is considered to be of divine origin. It proceeds on the theory that Hindu law was revealed to the sages who had attained great spiritual heights and they were in communication with supreme power i.e. God. According to Hindu jurists, law is the enforceable part of DharmaDharma does not emanate from sovereign. It generally includes all kinds of rules, religious, moral, legal, physical, metaphysical, in the same way as the law does, in its widest sense.

According to Mayne, Hindu law is the law of ‘Smritis’ as expounded in the Sanskrit Commentaries and Digests, which as modified and supplemented by custom, is administered by the courts. According to Dharmashastra writers, law was taken to be dynamic i.e. it should respond to the needs and requirements of the given period. Hindu law is not a king made law unlike the concept given by Austin.

Under Hindu law the sovereign or the King is not immune from Dharma. King was considered to be law enforcer and not law-giver. Hindu law is not lex-loci but personal law. It follows therefore, that on the migration of Hindu from one part to another part, it is presumed that he retains the laws and customs of the region from where he comes.

THE SOURCES OF HINDU LAW

The main sources of Hindu law are as follows – 

  1. Shrutis
  2. Smritis
  3. Commentaries and digest
  4. Judicial pronouncements
  5. Enactments
  6. Justice, equity and good conscience
  7. Customs

The Shrutis

The name Shruti signifies ‘what is heard’ from above and is meant with Vedas. It is supposed to contain the very words of the deity, revealed to have inspired the sages. In theory, the shrutis are the paramount sources of Hindu law but do not have practical as well as legal significance.The Shruti consists of four Vedas and Upanishads primarily dealing with religious rites and the means of attaining true knowledge and moksha. The Vedas are ‘ Rig, Yajur, Sama, Atharva’. The Vedangas or appendices to the Vedas came into existence in the post-Vedic period. These are 6 in number 

  1. The Sikha 
  2. The Kalpa
  3. The Vyakarana 
  4. The Chhandas
  5. The Jyotish 
  6. The Nirukta

The Upanishads are designated as the Vedanta or the concluding part of the Vedas.

The Smritis

Smritis means ‘what was remembered’ and is of human origin and is believed to be the recollections of rishis handed down to us, thereby constituting the principle sources of Hindu law. It contains precepts whose authority is beyond dispute but whose meaning is open to various interpretations and has to be determined by the ordinary process of reason. Smritis were classified into two types:-

  1. Primary
  2. secondary

Primary ones were again classified into two types 1 ) Dharmasutras 2) Dharmashastras. The contents of Smritis are of two kinds 

  1. In prose style 
  2. In poetry style

 Prominent writers in prose style – Gautama, Baudhayana, Vashishtha, Vishnu and Harita. Prominent writers in poetry style – Manu, Yajnavalkya, Vishnu, Yama, Daksh, Gautama, Satpat, Vashishtha etc. Out of them, Manu holds the first place because he has expressed in his code the whole sense of Vedas and there is no code that contradicts him. Next, after Manu is, Yajnavalkya. His work is based on Manu. Parashara too occupied a significant role in ancient Smiriti writers. He claims to be the sole writer for the kaliyuga. 

Commentaries and Digests

Because of the obscurity, incompleteness, and not infrequent conflicts in the rules of the Smritis and the desirability of injunctions of Smritis in a manner so as to suit prevalent customs and usages, there arose a need to reconcile them on points of difference. The commentaries and digests were also the records of the traditional customs recorded in the Smritis as well as new customs claiming for and found worthy of recognition. The period of commentaries and digests was between 700 to 1700 AD. The last commentary was ‘Vaijayanti’ written by Nanda pandit. It is related to Vishnu dharma sutra. The commentators introduced few changes in order to bring into harmony with usages followed by the people governed by the law. In case Atmarao vs Bajirao, the court held that in case of conflict between the ancient text and commentaries, the opinion of the latter is accepted.  Some principle commentaries are –

  1. Dayabhaga
  2. Mitakshara
  3. Viramitrodaya
  4. Vivada chinatamoni
  5. Vivada ratnakara
  6. Dayatattwa
  7. daya kramasanghra
  8. Smriti chandrika
  9. Parashara Madhaviya
  10. Vyahara Mayukh

Out of all, Mitakshara and Dayabhaga occupies the highest position as the most authoritative source of law.

Judicial Pronouncements

It cannot be denied that the early English judges with the help of pandits had brought to bear their own notions and thus influenced the development of Hindu law. Their ignorance of Sanskrit might have the effect of imparting rigidity to what has been a very pliable legal institution but in many cases for the sake of justice, logic the effects of original texts had been either altered by them in their judicial pronouncements. These decisions constitute an important source of law. The large body of law pertaining to adoption, a pious duty of the son to pay the father’s debt to the extent of actual ancestors assets in hand the extension of such duty during his lifetime, and the curtailment of women’s right are some of the numerous instances where the in administering the Hindu law either altered or modified it. It cannot be denied that on the one hand, the pronouncements imported English ideas to the Hindu perception of law, while on the other hand, it has restricted the normal growth of the law 

Enactments

Enactments are an important source of Hindu law. Some of them tried to reform the law while others superseded it. Prior to the British era, the laws related to Hindus were scattered . To make uniform legislation for the matters governing Hindus, the Englishmen made an effort to codify them. Here are some of the important laws-

  1. The Cast Disability removal act, 1850
  2. The Hindu Widows Remarriage act 1856
  3. Special marriage act, 1872 
  4. The Transfer of Property act 1882
  5. The Indian Succession act
  6. The Child marriage restraint act 1929 ( Sharda act)
  7. Special marriage act 1954
  8. Hindu marriage act 1955
  9. Hindu succession act 1956
  10. Prohibition of child marriage act 2006
  11. Indian contract act 1872
  12. Indian evidence act 1872 
  13. Indian penal code 1860

Equity, Justice & Good Conscience

Equity as a branch of legal study means certain principles emerging in the course of administration of justice, where on account of the inadequacy of law, the judges evolve certain rules on the basis of justice, fairness and propriety. In India, the concept of equity can be traced back to Hindu period where judges explained the old laws and gave new rules of interpretation. According to Yajnavalkya, if there is a conflict between two Smititis, Equity should supersede the law. In Gurunath vs kamlabai, the apex court observed that in absence of any rule of Hindu law, the courts have the authority to decide on the grounds of justice, equity and good conscience unless in doing so decisions would be repugnant or inconsistent with any theory of Hindu law. 

Customs

Customs is regarded as the parent source of all personal laws in the world. It is a rule that a particular family, class, community, possess due to prolonged use and has the effect of law. it should be noted that customs have the effect of modifying personal laws but it cannot override statutory laws. In Deivanai vs Chidambaram, it was held that customs have the force of law, must be archaic, reasonable, and certain. According to section 3(a) of the Hindu marriage act 1955, customs and usages signify any rule that has been continuously and uniformly observed in the fore of law among the Hindus in any local area, tribe, community, group or family.  

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