SOURCES OF HINDU LAW

SOURCES OF HINDU LAW List of Contents Hindu law unlike Roman law is more religious than secular in character. It is not a codified law but extracted from various religious texts, commentaries usages and custom and judicial decisions.Hindu law is mainly a law governing the Hindu. This a personal law (Marriage, Divorce, Adoption, Inheritance etc)and applicable to person andfamily relation only the Hindu believe that their law is of divine origin andto them this is positive law emanated from the deity. The Hindu kings werebound by the divine laws contained in the Smritis and these were applicable to king and subject alike. The king used to administer justice as the representative of God and royal edicts though had the force of divine law in some matters.

According to Gautam Dharmashastra and administration of justic shall be regulatade the vedae The institutes of the secred law the vedangas and the puranas.

According to Yajnyavalkya The Sruti ,the Smriti the approved usage, whet is agreeable to one's good conscience and desires sorung from due deliberation ordained as the founding of Dharma.

Ancient Sources: Before the codification of Hindu Law. The ancient literature was the only source of law. These sources can be divided into four categories:

1. Shrut: The literal meaning of shruti is what was heard by the sages in a revelation by almighty. It is originated from Vedas i.e. Rig, Yaju, Sama and Atharva vedas. The deals with the mastery of rhyme and meter. Vyakarna deals wits the study of word and sentence structure. Nirukta deals with the meaning of complex words and phrases. Kalpa deals with the ethical moral and procedural percepts associated with the perfomce of rituals as a way of life. The vedantas are commentaries on vedas their putativ end and essence and thus know as vedanta or end of the veda. They are considered the fundamental essence of all the vedas.

The vedas are four in number : 1. Rig Veda: The Rig veda is the oldest and consists of hymns and songs in praise of the forces of nature.

2.Yajur veda: The Yajur veda deal with rituals and sacrifices and the montras in this connection. A mantra is a sacred prayer addressed to any Deity. 3. Sama Veda: The sama veda contains prayers composed in metre and set to music.

4. Atharva Veda: The Atharva is devoted to magic spells and incantations (charm spell) .

2.Smriti: Smriti literelly means that which was remember. Both sruti and smriti refer to the utterances and precepts of the Almighty. which have been heard and remembered respectively and handed down by the rishis (sages)from generation to generation. The exact number of smritis (or codes) is not definitely know but the earliest one seems to be the manu smriti. The principal smriti are those of manu yajnavalkya and Narada. The Smriti kars declared and stressed the divine origin and sanction of the rules of dharma. Since the law is the king of king for more rlgid than they nothing can be mightier than the law by whose aid as by that of the highest monarch, even the weak may prevail over the strong.(Shatapatha Brahmana)

The Smriti are of two kinds: (a)In prose style ; (b)In poetry style; Those in prose are called "dharma sutras"and are are anterior to those in verse. The principl authors thereof are Gautama,Baudhyana, Apastamba ,Harita,vsishtha and Vishnu. The authority of the several of the several commentators varied in different parts of India giving rise to what are known as the diffierent schools of Hindu law. Broadly speaking there are two school the mitakshara school and the Dayabhaga school.

3. Puranas: The purana eighteen in number(excluding upa-puranas) are also a source of Hindu Law. The purana are codes which illustrate the law by instances of it's application. As observed by the Allahabad High court. somewhere in the order of precedence either between the shruti and smritis or more probably after them come the purana which the celebrated author colebrooke states are reckoned as a supplement to the scripture and as such constitute a fifth veda. Thay are but mythologieal pomes professing to give an account of the creation to narrate stories of God and ancient King and in doing so thay relate religious duties God and rigths. Though it is a source of law but hot considered as authoritative. Prof wilson observes The purana are not authorities in explanation or illustration but not in proof.

4.custom: custom is a set of rules and norms practice byparticular society for a long period of time. It is a rule of action uniformly and continuously followed by the bulk of the people for alongtime. custom is recognised as an important source of Hindu law.custom may be divided into four types which are :

(a)General custom (b)Local custom (c)Family custom (d )class custom

1. General custom: There are the customs that are observed throughout the common law of the land.

2. Local custom: These are the custom that are followed in a given of a geographical area. In the case of Subbane vs Nawab. Privy Council observed that a custom gets it force due to the fact that due to its observation for long time in a locality it has obtained the force of law.

3. Famly customs:These are the custom that are followed by the family from a long time. These are applicable to families where ever they live. They are source is can be more easily abandoned that other custom . In the case of Soorendranath vs Heeramonic. Privy Council observed that custom followed by a family have long been recognized as Hindu Law.

4. class custom: These are the custom that are followed by a particular on the members of that community or caste.

Requirements for a valid custom: No custom shall have the force of law if it in manner violates the fundament Rules of customary law. In order to be valid and have binding effect a valid custom.

Must have the following requisites: (a) Antiquity, (b) Continuous observance, (c) Certainty, (d) Reasonableness, (e) Not against morality, (f) Not against public police, and (g) Conformity with statutory law.

1. Ancient: Ideally a custom is valid if it followed from hundreds of years. There is no a Definition of ancientness however 40yrs has been determined to be ancient enough . A custom cannot come into existence by agreement. It his to be a existing from of Hind u marriage was not recognized in Tamil Nadir . In the Case Rajothi vs Selliha a self respecter cult started a movement under which Traditional ceremonies were substituted with simple ceremonies or marriage that did not involve satire rites. Hc held that in modern times no one is the free to create law or custom since that is a function of legislature.

2. Continuous Observance: It is important that is custom is being followed continuous and has not been Abandoned , it cannot be revived.

3. Certain: The custom should be very clear in terms of what it entails. Any amount of vagueness will invalid. The one alleging a custom must prove exactly what it is.

4. Reasonable: There must be some reasonable and fairness in the custom. Though what is reasonable depends on the current time and social values.

5. Not against morality: It should not be morally wrong or repugnant. For example a custom to marry one a granddaughter has been held in valid. In the case of chitty vs. chitty 1894 a custom that permits by. Payment of expenses of marriage by one party to another was held to be not immoral.

6. Not against public policy: If a custom is against the general good of the society it is held in valid. For example adoption of girl child by dancing girls (prostitute) has been held invalid as it is against public policy. Though a custom among dancing women permitting them to adopt one or more girls is void because they may use their adopted girls in their unethical profession.

7. Not against any law: If a custom is against any statutory of law, it is invalid codification of Hindu Law has abrogated most the custom except the ones that are expressly saved.

Proof custom The burden of the proving a custom is on the person who alleges it . Usually Custom are proved by instances. But one a instance does not prove a custom. However in the of Ujagar vs jeo13 it was held that if a custom of has been to brought to notice of the court repeated . Existence of a custom can also to be Proved through d0cumentary evidence.

Usage and custom The term custom and usage is commercial law but custom and usage can be distinguishe in Hindu Law. A usage is a repetition of acts whereas custom is the law or general rule that arises from such repetition . A usage may exist of without a custom but custom cannot arise without a usage accompanying it a Or proceeding. In the modern law however the two principles are often by the Merged into one by the court.

Modern Sources

Hindu law has been greatly influenced by the British rule. Which it is might seem that the British brought with them the modern concept of a equity and justice these a concept of existed even in a Dharamastras in a different form. Narada and Katyayana have a mention the importance of dharma of source (righteousness) in delivering justice. However we did not have a practice of delivered. So it was not possible to apply state . This process started fromthe British rule. Thus the following became the modern source of Hindu law:

(a) Commentaries, (b) Legislation, (c) Equity, Justice and good conscience,

(d) Factum Valet.

a. commentaries: The upa -puranas or minor or subsidiary puranas thought regarded generally as spurious (not fact unauthentic) compositions some rules enunciated by the authors of thus have found favor of with the court. The authors a called these rules as rules of conducts. Raghunandana prohibition of the intermarriage of the between different tribes though contrary to the Shastrss is based on of the Aitya purana and it was accepted by the court in Malarm v. Thanooram Case.

b. Legislation: In modern society this is the only way to bring in new laws. The parliament in accordance with the needs of society constitute new laws . For example a new way of performing Hindu marriage in the Tamil in India that got rid of a rituals was rejected by the Supreme court on the basis that new custom it is to cannot be invented However of the Tamil Nadu later passed an Act that is recognized these marriage. During the British rule a vast numbers of Act and Ordinance were promulgated in undivided India to reform the Hindu laws of existed at that time . i.e. the caste Disabilities Removal Act, 1850; the Hindu Widow's Remarriage Act, 1850 etc (see Appendixes). Such legislations are now part of our Hindu law.

c. Equity, justice, and good conscience: Equity means fairness in dealing. Modern judicial system greatly rely on the being impartial. True justice of can only be delivery through equity and good conscience. In a situation where non rule is given, a sense of reasonableness must prevail. According to Gautama, in such situation the decision should be given that is acceptable to at last ten people who are knowledgeable in of the shastras. This principle has been followed by the Privy Council which deciding cases.

d. Precedent: The doctrine of stare decision started in India from the British rule. All cases are now recorded and new cases are decided based on existing case laws. Today the judgment of Supreme court of Bangladesh (both High court Division and Appellate Division) is binding on all court subordinate to it across Bangladesh. As a result the decision of Supreme court regarding any matter arising out of Hindu law is binding upon the Hindus in Bangladesh. Thus such decisions are considered as source of Hindu law in Bangladesh.

e. Factum Valet: The doctrine of factum valet is considered as an important source of Hindu law. Jimustabahana of Dayabhaga School defined this doctrine at first. The meaning of this doctrine is that where an act is finally compared though it may be contravention of hundred directly texts, i.e: what ought not to be done it is valid when it is done. For example: text of hindu law prescribes the rules for consent of guardian for the purpose of marriage is merely directory in nature. But a marriage solemnized and performed without consent of guardian has been held to be valid by application of the doctrine of factum valet. By, application of this doctrine, the court validates the following two categories of acts through sastric and customary laws: (i) act disputed for the cause of religion, morality and its acceptability and (ii) act which is prohibited but not declared iligal by any scripture or law