What are the Traditional Sources of Hindu Law?

The fourth and last Veda, Atharvana Veda, so called after the classes of priests known as Atharvanas by whom it was compiled, has some hymns from the Rig Veda along with original hymns of the same kind and consists chiefly of incantations, spells, charms and exorcisms.

These vedais contain the sacred lore and esoteric knowledge of the Hindus. They came into existence long before writing was invented but their text has been preserved and transmitted to us unimpaired. This became possible for not only was the text memorised with great accuracy but with a view to establish the text and prevent interpolations, every word and syllable had been counted. We learn that the number of words in the Samhita is 153, 826 and that of the syllables 432,000 contained in 10,622 verses.

We Will Write a Custom Essay Specifically
For You For Only $13.90/page!


order now

The Vedic Religion as depicted in the Vedas is extremely simple, consisting of worship of trinity of Gods-the Fire-God Agni, the Rain-God Indra and the Sun-God (Surya or Savita). There are other Gods such as Vayu (wind) Maruts (Storm God) and Ushas (dawn). The head of the household is its spiritual representative and leader. He lights the flame of the daily sacrifice singing the appropriate hymns.

The Vedas do not contain rules of law in a connected form. There are, however, Vedic passages dealing with such topics as marriage, different kinds of sons, adoption, partition, inheritance and Stridhana. The hymns of the Rig Veda as to marriage are used even to this day.

The Taittiriya Samhita makes mention of Manu as having distri­buted his property among his sons during his own lifetime. This Vedic passage is invoked later on for establishing an equal division of the paternal estate among the sons.

The exclusion of women from inheritance is also traced to a passage of the Taittiriya Samhita which speaks of women an “destitute of strength” and so unfit to have any “portion” (of the soma beverage). In this way there are incidental references in the Vedas to topics which fall under the subject of law as conceived in modem times. There is, however, no systematic treatment of law as such in the Vedas.

The approximate period of Vedas is computed by historians to be 4000-1000 B.C. The period between Vedas and Smritis is marked with the development of Custom. Varna/ Ashrama Dharmas started falling roots in the society. The teachers of vedas gave varied inter­pretations to vedas and thus, developed various sakhas.

The Smritis:

Next to the Vedas, the Smritis are the most important source of Hindu Law. According to tradition the Vedas also called Sruti (What is heard) represent the direct word of God as heard by the sagas while the Smritis (What was remembered) represent what was recorded by the sagas in their own words of what they had heard from the Diety.

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, Boudha- yana, 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 part, Vyavahara.

The oldest Smriti is the Manusmriti. 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.

Manu ordained that “Law is the king of kings” and he recognises the divine power of kings to enforce the law through Danda. He gave importance to as a source of Dharma. In his various doctrines he was harsh towards women and Sudras.

The Yajnavalkya Smriti (2nd Century A.D.) which contains 1010 slokas is divided into Achara (Ritual); Vyvahara (Secular) and Prayaschitta (Expiation), Kandas or Parts. The chapter on marriage is found in Achara Kanda. In secular law the Code deals with courts, procedure, ordeals, debts, pledges, partition, 12 kinds of sons, sales, defamation, assault, theft and adultery.

Yajnavalkya smriti provides that King was subordinate to Law though endoned with power of Danda. Relatively he was less harsh towards women and Sudras when compared to Manu.

In the sacred Books of the East, Vol. XXXIII, it is pointed out that “In modern Hindu Law as administered in the British Courts in the whole of India, the smriti of Yajnavalkya has become the guiding work for the whole of India. This position is richly deserves by its concise but clear statement of Principles, its breadth of vision and its comparative impartiality towards the claim of both sexes and the different varnas”.

The paramount position of the Yajnavalkya smriti is largely due to the commentary on it by Vijnaneswara. This commentary known as Mitakshara holds sway throughout India. The Mitakshara School of law is paramount outside Bengal. Even in Bengal the Mitakshara ranks next only to the Dayabhaga which is accorded primacy in that part of the country. For this reason the Yagnavalkaya smriti as expounded by Mitakshara holds a dominant position amongst the various smrities.

Other smrities to which a reference may be made are.

The Narada Smriti (4th Century A.D.) and Brihaspati Smriti which deal largely with legal subjects. The Smriti of Brihaspati is fragmentary and has had to be compiled from the reference to that smriti in various commentaries on other smrities. Since Brihaspati is referred to as smritikarta by Yajnavalkya, the smrities of Brihaspati must be older than the Yajnavalkya smrithi. Narada smriti recognised the power of the kings to make laws without going beyond the injunctions of Vedas. He gave paramountacy to custom even overriding sacred Laws. He was liberal in dealing with women and sudras.

Digests of Hindu Law:

Several Digests and Commentaries were written on smritis during the period between 700 A.D. to 1700 A.D. Some of them can be noted here under.

On Manusmriti:

Medhatithi has written Manubhashya (895-900 A.D.)

Govinda Raja has written Manutika (1100 A.D.)

Kulluka Bhatta had written Manavonta Muktavali (1250 A.D.)

On Yajnavalkya Smriti:

Vijnaneswara had written the famous commentary Mitakshara (1100 A.D.)

Vijna ruph had written Balakrida (900 A.D.)

Apararka had written Aparaditya (1200 A.D.)

There developed certain regional digests and commentaries like Smriti Chandrika written by Devammabhatta in South India (1200 A.D.); Viramitrodaya written by Mitramisra (17th Century) in Western India; Vivadachintamani written by Vachaspathi (15th Century) in Mithila; the above Viramitrodaya in Banaras; and yet another famous work Dayabhaga written by Jimutavahana (12th Century).

For facilitating the administration of justice a Code of Hindu law was prepared in Sanskrit language by ten learned pundits during the time of Warren Hastings. It was called Vivada Arnava Sethu (Bridge over the Ocean of litigation) and was completed between 1773 and 1775. This was translated into Persian language from which an English version was prepared by Halheid known as Halheid’s Gentoo Code. During the Governor-Generalship of Lord Cornwallis, Sir William

Jones, a great linguist, a Judge of the Calcutta Supreme Court, undertook the translation of the sacred laws of the Hindus. In 1794 he translated the Ordinances of Manu. Under his direction Jagannadha Tharka Panchanana (Jagannadha, the lion of dialectics) prepared a digest of Smriti writings called Vivada Bhangarnava (ocean of solved legal problems). Jones intended to translate this work, but died before he could do so.

The translation was made by Colebrooke. It was very useful to the British in the early days of the administration of justice in this country. The British Judges were assisted in the administration of justice by native pundits, who gave their opinions on the Dharma Sastra law applicable to the Hindus. This system was abolished in 1864 as the English Judges felt that they could administer the native laws without the assistance of the pundits.

Customs as a Source of Hindu Law:

(a) Authority of Custom:

Manu recognised custom to be transcendant law: ACHARAHA PARAMODHARMAHA Yajnavalkya defines custom as “That which a person practices whether it is Dharma or not, because it is the usage of the country” He definitely says that a person should not practice even what is ordained by the Smriti if it is opposed to custom.

The Privy Council also has recognised the supreme authority of custom in Hindu Law. In the famous Ramnad case, 12 MIA 397, the question arose whether in the Dravida country (South India) a widow could make an adoption even in the absence of express authority from her husband.

Examples such customary practices were given to show that with the authority of 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.”

(b) Different kinds of custom:

(i) Local Custom:

This is a custom prevailing in a particular locality. The Ramnad Case dealt with a custom of this kind. In the Dravida country it was proved in that case that widows can adopt but that they can do so only with the consent of the deceased husband’s Sapindas.

Other customs of this kind are encountered in the law of the marriage. In the South the rule as to prohibited degrees in marriage is considerably relaxed by custom. Thus marriage of the maternal uncle’s daughter and paternal aunt’s daughter are permitted. (See Note 3.4 in Law of Marriage)

(ii) Family Custom:

A custom may govern only one particular family. Thus the incidents of impartibility and devolution by primogeniture of certain Zamindaries were attributable to family custom.

(iii) Caste Customs:

There are some customs which prevail among particular castes, e.g., Brahmins, Sudras etc. Thus in the law of adoption, among Brahmins a Homam is necessary for adoption but among Sudras giving and taking of the boy is sufficient. (See Law of Adoptions).

(c) Essentials of Custom:

A valid custom has to satisfy the following legal requirements—

(i) Antiquity:

A valid custom should be ancient. In Ramalakshmi v. Sivanatha, (1872) 14 MIA 585, the Privy Council obser­ved:

“It is of the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable and it is further essential that they should be established to be so by clear and unambiguous evidence”.

In that case a zamindari was claimed by two sons by different wives of the late zamindar. One claimant rested his claim on the ground that he was born earlier. The other claimant rested his claim on the ground that his mother was married earlier to the zamindar than the mother of his rival claimant.

The question was whether priority in birth of sons or priority in the marriage of the mother was to govern succession to the estate. The statements of several zamindars were examined as evidence but it was insufficient “to prove the existence of an ancient and invariable custom in the district”. The general custom of the first-born taking the impartible Raj was given effect to as the family custom of devolution upon the eldest son of the senior most Ranis was not proved.

(ii) Certainty:

The evidence must establish unambiguously the usage set up. The decision in Ramalakshmi’s case, (1872) 14 MIA 570 above considered shows that when the evidence is conflicting, a uniform custom is not established.

Reasonableness:

Unreasonable customs which are contrary to public policy are rejected by courts. Thus in Budansa Rowthar v. Fatma Bi, 26 MLJ 260, a custom of polyandry allowing a woman to re-marry during the life-time of her husband was held to be immoral.

Customs permitting dancing girls to adopt daughters for bringing them up as prostitutes are also immoral. The Privy Council held that a custom permitting the sale of the office of a temple trustee is repugnant to public policy and is void. Rajah Vurmah v. Ravi Vurmah, 1876 (1) Mad. 235 (PC).

Discontinuance:

Family customs which are applicable only to particular families may be discontinued. Disuse puts an end to them. Thus in Abraham v. Abraham, 1863 (9) MIA 195, the Privy Council pointed out that when a Hindu is converted to Christianity, it is open to him to continue the Hindu Law as a family usage.

He may also give up this usage and adopt the customs of the community to which he has attached himself as a result of conversion. So he may governed by Christian law at his option. No doubt statutorily this option has been taken away so far as rules of inheritance are concerned since the Indian Succession Act was passed to regulate succession to Christians.

A local custom is not put to an end by non-user.

The following can be considered as modern sources of Hindu Law:

Justice, Equity and Good Conscience:

It was maintained even under smritis that one’s own satisfaction to the source of Dharma. It was also ordained that any decision should be arrived based upon Yukti or Nyaya. These aspects amply cover under Ancient law the modern concept of justice equity and good conscience.

The common law tradition of applying the principle of “Justice, equity and good conscience”. When the law is silent on a given point was conveniently applied by the Britishers in their administration of justice in India. Afterwards the Supreme Court of India recognised that in the absence of any rule of Hindu Law the courts have authority to decide cases on the principle of “justice, equity and good conscience. Gurunatha v. Kamala Bai, 1951 (1) SCR 1135.

Some reformative legislation to satisfy growing public opinion was passed during this period. Thus, Hindu Widows Remarriage Act, 1856; Child Marriage Restraint Act, 1929; Hindu Inheritance (Removal of Disabilities) Act, 1928; Hindu Women’s Right to Property Act, 1937; Arya Marriage Validation Act, 1937 and the like were passed.

An effort to codify the law relating to Hindus was made during 1941 by appointing a committee which recommended gradual codification of Hindu Law starting with intestate succession. In 1944 a Committee under the Chairmanship of Sri B.N. Rao was constituted which had evolved a Hindu Code. Because of some opposition from a section of Hindus a comprehensive legislation governing the Hindus could not be passed. However during 1955-56 four major Acts governing the Hindus were passed. They are—

The Hindu Marriage Act, 1955;

The Hindu Adoptions and Maintenance Act, 1956;

The Hindu Minority and Guardianship Act, 1956; and

The Hindu Succession Act, 1956.

Precedent:

Binding nature of previous judicial decisions on a subsequent similar case is of modern origin come into vogue during British period. Their Lordships of the Privy Council expounded and evolved the principles and rules on varied complex and complicated subjects of Hindu Law through their decisions.

This had facilitated easy understanding and ascertainment of principles of Hindu Law without referring to complicated scriptural source and has given scope for adapting new suitable principles of Hindu law from relevant British concepts and doctrines. The principle of Stare decisis is applied by the Indian courts. The decisions of the Supreme Court are binding upon all courts except upon itself and of the High Court on all of its sub­ordinate courts.

Legislation:

Legislation is a vital source of modern Hindu Law. During British period, only very few legislations were passed touching personal laws of Hindus, in tune with the British policy of non-interference in the matters of personal status of native Indians.