3. Commentaries on the Smrities (Nibandhas)
5. Judicial decisions
7. Justice, equity and good conscience
8. Customs and usages
Sruti (or Shruti) literally means that which was heard. The Srutis are believed to contain the very words of God. They are supposed to be the divine utterances to be found in the four Vedas, (namely the Rig Veda, the Yajur Veda, the Sama Veda and the Atharva Veda), the six Vedangas (i.e., appendages to the Vedas) and the eighteen Upanishadas. Although the Srutis are believed to be the ultimate sources of law, in the sense of rules of human conduct, they are mostly religious in character and one finds very little secular law in the Srutis.
A departure from the vedic principles had brought about several evils in the fabric of Hindu Law, some of which were removed by legislation. Thus, for instance, the Vedas did not allow polygamy, but the same became popular in the Hindu community, and it was only in 1955 that the Hindu Marriage Act put an end to this undesirable practice.
Smriti literally means that which was remembered. 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 known, but the earliest one seems to be the Manu Smriti. The principal Smritis are those of Manu, Yajnavalkya and Narada.
As understood by a devout Hindu, law is a branch of Dharma, and its ancient framework is the law of the Smritis. Traditionally, Dharma is defined as that which is followed by those who are learned in the Vedas, and what is approved by the conscience of the virtuous who are exempt from hatred and inordinate affection.
The ancient law, as promulgated in the Smritis, was essentially traditional, and the injunction was that time-honoured institutions and immemorial customs ought to be preserved intact. The law was to be found, not only in the text of Smritis, but also in the practices and usages prevailing there under.
The Smritikars declared and stressed the divine origin and sanction of the rules of Dharma. “Since the law is the king of kings, far more rigid 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, XIV)
Although Smritis deal with rules of morality and religion, one finds in them more of secular law, than in the Srutis. For all practical purposes, the interpretation put on the Smritis by the commentaries written on the Smritis forms the basis of Hindu Law. Of course, the Commentaries and Digests, in their turn, are controlled by the decisions of the Courts, which are ultimately the most fertile sources of Hindu Law.
It may be remembered that if the text of the Smritis conflicts with any of the Vedic texts, the former is to be disregarded. “Where there is a conflict between the Vedas and the Smriti, the Vedas should prevail”. (Vyasa)
The Supreme Court has observed that if there is divergence of opinion among the Smritis, the court should consult the prevailing practice among the people, while deciding a case. If there is a clear usage to the contrary, the Smriti must yield to such usage. (Shyam Sunder Prasad Singh v. State of Bihar, (1980) Supp. S.C.C. 720)
3. Commentaries on the Smritis (Nibandhas):
All the Smritis did not agree with one another in all respects, and this conflict led to several interpretations put upon them. This, in turn, gave rise to commentaries called Nibandhas. Nibandhas are thus nothing but the interpretations put on the Smritis by various commentators. However, it is interesting to note that these commentators did not merely interpret the Smriti, but they also recited the customs and usages which the commentators found prevailing around them. In other words, while professing to interpret the law as laid down in the Smriti, these commentators introduced modifications in order to bring it into harmony with the current usages.
Despite the fact such commentators have modified the original texts in order to bring them in line with the local customs and conditions, the commentaries are now considered to be more authoritative than the original texts themselves.
The reason for this is that although the interpretations of the age-old texts may be inaccurate, they nevertheless have the sanction to recognise the rules contained in such Nibandhas, the reason being that under the Hindu system of Law, “clear proof of usage will outweigh the written text of the law”. (Collector of Madras v. Moottoo Ramalinga, 12 M.I.A. 397)
In this context, the Allahabad High Court has pointed out that there is a distinction between a law giver and a commentator. A Code enunciated by the former has the force of law, but the opinion of a commentator, howsoever valuable for elucidation of the Code, cannot override the law itself. (Kastoori Devi v. Chiranjit Lai, A.I.R. 1960 All. 446)
The authority of the several commentators varied in different parts of India, giving rise to what are known as the different schools of Hindu Law. Broadly speaking, there are two Schools, the Mitakshara School and the Dayabhaga School. The former prevails throughout India, except in Bengal, where the latter finds a large following. (The Schools of Hindu Law have been discussed in greater detail later in this Chapter.)
The Puranas are also a source of Hindu Law. The Puranas are Codes which illustrate the law by instances of its application. As observed by the Allahabad High Court in Ganga Sahai v. Lekhraj (9 All. 253):
“Somewhere in the order of precedence, either between the Srutis and the Smritis, or more probably after them, come the Puranas, which the celebrated author Colebrooke states, are reckoned as a supplement to the scripture, and as such, constitute a fifth Veda”.
5. Judicial Decisions:
After India came under British rule, another element was added to the effective sources of Hindu Law. The courts had to ascertain and administer the personal law of the Hindus in various matters such as marriage, adoption, inheritance, and so on. The decisions of the courts, based on the judicial interpretation of the ancient Hindu texts, began to stake their claim as the most practical source of Hindu Law.
Strictly speaking, it cannot be said that judicial decisions are a source of law. This is so, because the Judge is supposed to interpret and explain the existing law, and not to create new law.
Nevertheless, since all the important aspects of Hindu Law have now found their way into Law Reports, these may now be considered as a source of Hindu Law. Such decisions have played an important part in ascertaining, and sometimes in developing and crystallizing, Hindu Law.
The commentaries are often silent on several points and the Judges have filled in these blanks whilst deciding cases coming before them. As a result of the British rule in India, judicial precedents became necessary and useful guides in the application of Hindu Law. Thus today, no lawyer will be seen referring to the original texts of Hindu Law, as he would find all his requirements in the Law Reports.
Commenting on the sources of Hindu law, the Supreme Court has (in Shri Krishna Singh v. Mathura Ahir, (1981) 3 S.C.C. 689), observed that in applying Hindu law, the Judge should not introduce his own concepts of modern times, but should enforce the law as derived from recognised and authoritative sources of Hindu law, i.e., Smritis and commentaries, as interpreted in the judgments of the various High Courts, except where such law is altered by any usage or custom, or is modified or abrogated by statute.
Case-law has never formed part of the judicial system of the Hindus, but since the administration of Hindu Law was taken up by the Courts, judicial decisions have not only become a source of Hindu Law, but have been the chief agency by which changes have been effected in that law. The progress that Hindu law has made in the 19th and 20th centuries is entirely due to the rulings of the Courts. The decisions of these Courts have often superseded the Commentaries. As precedents, these decisions have a binding force.
As observed by the Mysore High Court, the duty of a Judge administering Hindu Law is not so much to inquire as to whether a disputed doctrine is fairly deducible from the earliest authorities, but to ascertain the law as laid down by the superior Courts in India, as well as by the Privy Council. (Madanvali v. Babu Padmanna Tamadaddi, A.I.R. 1960 Mys. 299)
A full Bench of the Allahabad High Court has, however, warned that it is still not well-settled that Hindu Law, as administered in India, is not the shastric law, but the law as declared by the Courts. (Dudh Nath v. Sat Narain, A.I.R. 1966 All. 315)
The next source of Hindu Law is legislation. Several enactments had come into force with the advent of British rule in India, and kept coming with greater gusto after the British departure. These legislative enactments which declare abrogate or modify the ancient rules of Hindu Law, thus form an additional modern source of Hindu Law.
The Hindu Law Committee, appointed in 1941, recommended that this branch of the law should be codified in gradual stages. However, the most important enactments were those which came in 1955 and 1956, namely the Hindu Marriage Act, the Hindu Minority and Guardianship Act, the Hindu Succession Act and the Hindu Adoptions and Maintenance Act. (All these statutes are discussed at length later in this book.)
This process of legislation is a continuous one. Thus, several amendments have been made in the four principal Acts referred to above. Notable amongst such amendments was the Amendment passed in 1976, which has radically modified the Hindu Marriage Act, as for instance, by introducing the concept of divorce by mutual consent in Hindu matrimonial law.
Yet another recent landmark is the amendment of the Hindu Succession Act in 2005, which has conferred equal rights on a daughter in coparcenary property. Gender inequality in this respect has now become a thing of the past. The 2005 Amendment has also abolished the doctrine of “pious obligation” which was deeply rooted in uncodified Hindu law. (Both these important amendments have been discussed at length in the relevant Chapters.)
7. Justice, Equity and Good Conscience:
The principles of justice, equity and good conscience may also be regarded as a modern source of Hindu Law. In the absence of any specific law in the Smriti, or in the event of a conflict between the Smritis, the principles of justice, equity and good conscience would be applied. In other words, what would be most fair and equitable in the opinion of the Judge would be done in a particular case.
As the Supreme Court has observed in Gurunath v. Kamalabai (A.I.R. 1955 S.C. 206), in the absence of any clear Shastric text, the Courts have the authority to decide cases on principles of justice, equity and good conscience.
In a case decided before the passing of the Hindu Succession Act, 1956, (Kenchava v. Girimalappa, (1924) 51 I. A. 368), the Privy Council held that a murderer was disqualified from succeeding to the property of the victim. Thus, a rule of English law founded on public policy, was applied to a Hindu on grounds of justice, equity and good conscience. Now, this disqualification is statutorily recognised in the Hindu Succession Act, 1956.
8. Customs and Usages:
Custom is one of the most important sources of Hindu Law. Where there is a conflict between a custom and the text of the Smritis, such custom will override the text. As observed earlier, “Under the Hindu system of law, clear proof of usage will outweigh the written text of law”. (Collector of Madura v. Mootoo Ramalinga, 12 M.L.A. 397)
Custom may be defined as a habitual course of conduct generally observed in a community. The Sanskrit equivalent of custom is sadachara, which means “the approved usage” or “the usage of the virtuous man”. Custom is thus a rule which, as a result of a very long usage, has obtained the force of law in a particular community or in a particular district. Custom thus plays a very important part in Hindu Law. It modifies and supplements the written law. “Immemorial custom is transcendent law”. (Manu)
It must, however, also be noted that a custom cannot be enlarged by parity of reasoning, since it is the usage, and not the reason underlying the custom, that makes the law. (Venkata Challamma v. Cheekati, A.I.R. 1953 Mad. 571)