Author: Jatin Garg, VIPS, Delhi
India is a country that has abundant personal laws, each community has its own personal law. The Hindu, the majority community has separate family law, so have Muslims, Christians, Jains, Sikhs. Hindus and Muslims have since time immemorial maintained that their laws are of divine origin. However, no such claim is made by other communities.
The modern Hindu law, by judicial interpretation and legislative modification, has undergone a dramatic change, so much that any claim of divinity can hardly prevail. In some cases, the custom is still allowed to prevail.
SOURCES OF HINDU LAW
So the first question arising in our mind is that who is a Hindu?. Whether it includes a person who claims to be called Hindus or who is a resident of India?
To answer this question regard must be had to various factors, also after close perusal of the term, it can be said that the connotation of the term “Hindu” has changed a lot from the ancient times to the contemporary era.
The term Hindu derives its origin in Persia around 6th BCE. The term Hindu was used by Persians to denote people beyond the river Indus. India at that time was populated by followers of Vedas and hence the term referred to a certain set of people who live in India and followed Vedas and Hinduism.
But eventually, as time passed, various new religions started to emerge on the land of India and which resulted in the presence of people of various religions and ethnicities in India. Presently, there are at least nine recognized religions that make it difficult to define Who is Hindu. One of the reasons for this difficulty is that the Hindu religion is so diverse and multifaceted that the definition of the term Hindu in terms of Hindu religion is almost an impossible task.
So, to tackle this problem, our legislature has provided a straight jacket kind of formulae that defines and categorizes the Hindus. This scheme of the legislature can be seen in various legislations. So, in the Hindu marriage act,1955, the term “Hindu” has been defined in a wide manner. It includes in its ambit:
- All those persons who are Hindus, Sikhs, Jains and Buddhists by religion. In this category are also included converts and reconverts to Hinduism, Sikhism, Jainism or Buddhism.
- All those persons who are born of Hindu, Sikh, Jain or Buddhist parents. However, if only one parent is Hindu, then he must be brought up as a Hindu. In this category, both legitimate and illegitimate children are included.
- All those persons who are not Muslims, Christians, Parsi or Jews, who are domiciled in India and no other law applies to them.This clause is a kind of residual clause.
So, after pursual of this definition, it becomes evident that the legislature has crafted a very wide definition that technically includes people of other religions also. Also, it may be noted that if a person is Hindu by birth or conversion, this would suffice, even though in actual persuasion he may be atheist, non-religious, non-conformist, anti-religious or even decry his faith. So long he does not give up his faith and embrace a new religion, he continues to be a member of that religion.
Sources of Hindu law, in any case, can not be circumscribed to a particular book or person. Hindu law is vast, so is its sources. Sources of Hindu law can be classified into various subheads.
Sources of Hindu Law types
Broadly, there are following two types of sources of Hindu law:
- Traditional/Ancient sources.
- Modern sources.
Traditional/ ancient sources
Traditional sources refer to those ancient Hindu legal systems that governed the conduct of Hindus in that particular time. The traditional source of Hindu law is the guiding principle in the present system also along with some modifications. So according to the traditional source of Hindu law, there are 4 sources of Hindu law, which are as follows:
- Shruti (Vedas)
- Digest and commentaries.
Shruti means something which has been heard. The word is derived from “Shru” which means to ‘hear’. In theory, it is considered as a supreme and paramount source of Hindu law and is believed the language of gods through the sages.
It is believed that sages have reached such a height of spirituality that they were informed about Vedas by some divine order. Thus shrutis include 4 Vedas – Rigveda, Yajurveda, Samveda, Atharvaveda along with their brahmins. Brahmins are considered as a guide to Vedas. Some people believe that Vedas contain laws and codes of conduct while others believe that laws have to be inferred from Vedas.
As mentioned before, there are four Vedas, it may be noted that each Veda has 3 parts viz:
- Sanhita(which consist of hymns)
- Brahmin(Which tell us duties and means of performing them)
- Upanishad(Essence of the duties)
Vedas provides rights and duties, Forms of marriage, the requirement of a son, partition, and exclusion of women from inheritance but these can not be regarded as clear-cut laws. Also, society was divided into varnas(Brahmin, Kshatriya, Vaishya, Shudra) and life was divided into various ashrams(Brahamchayra, Grihastha, Vanaprastha, sannyasa).
The concept of karma was also evolved during this time. It was believed that a person will be rewarded as per his karma. Also the concept of ‘moksha’ was prevalent which provided that a person could achieve salvation through knowledge and good deeds.
It is assumed that the Vedic period existed between 4000 to 1000 BC. During this time various pre smrities and Gathas were composed.
The word Smriti has been derived from ‘smri’ which means ‘to remember’. Technically smrities mean those works which are created by the virtue of memory of sages. The basis of smrities is shruties. Smrities can be referred to as a step ahead of smrities.
There are two types of smrities viz Dharamsutras and Dharamshastras. There is a very thin line of difference between the two. The basic difference lies in the fact that dharamsutras are written in the form of prose, in short maxims while dharamshastras are written in the form of shlokas(poetry).
There are many Smriti writers and it is impossible to determine how many authors are there of smrities. However, there are some notable Smriti writers, enumerated by yajanvalkya are Manu, Attri, Vishnu, Harita, Yama, katyana, Brihaspati, Parashar, Vyas, etc.
The rules laid down by smritis can be laid down into the following categories:
- Achar(relating to conduct and morality)
- Vyavahar( Substantive rules which a king should follow)
- Prayaschitta( penal provision for the commission of wrong)
This Smriti is the earliest and most important of all. It does not define a code of conduct in India but also in various other countries such as Jawa, Sumatra, Bali, etc. The name of the author of manusmriti is unknown as the author has formulated it under a hypothetical name of Manu, who was considered to be the first human. Maybe it was done to gain divine and authoritative status.
Manusmriti is a compilation of all presmrities and gathas. Manu was a brahmin protagonist and was harsh on women and Shudras. He holds customs to be of utmost importance and asks the king to follow customs and he cloaked the king with divinity. He emphasized the concept of ‘danda’ which was meant for a proper enforcer of the law.
Digests and commentaries
Digests and commentaries came after smrities during the 7th century to 1800 A.D. During earlier stages commentaries were based on smrities but in the later period, the works were like digests containing various smrities and explaining and reconciling various contradictions.
The evolution of different schools of Hindu law is a result of these digests and commentaries as these digests and commentaries are interpretations of the Smriti and hence the difference of opinion is bound to occur. Owing to this reason, different schools of Hindu law emerged.
It was only after 200 AD, most of the work was done only on the existing material given in Smrtis. The work done to explain a particular Smriti is called a commentary. Commentaries were composed in the period immediately after 200 AD. Digests were mainly written after that and incorporated and explained material from all the smritis.
Some of the prominent commentaries include Manubhashya, Manutika, and Mitakshra. One of the most important digest is Jimutvahan’s Dayabhaga that is applicable in Orissa and Bengal.
Mitakshara is one of well known and supreme source of law in India. It is based on the commentaries written by Vijayneshwara on the code of yajanvalkya while Dayabhaga law school is based on the commentaries of Jimutvahana. Dayabhaga and Mitaksara are two main sources of Hindu law in India.
The main objective of these texts is to gather the scattered material available in the form of smrities and shruties and to compile it in a more comprehensive form for the betterment of society. Thus, these were much logical and to the point in their approach.
Customs and usages
Custom can be defined as those crystallized practices which are followed by a community or group of people for a considerable period, which now has become a governing norm in that particular society or community. It means those established practices are being followed for a considerable period.
Custom is also a principal source of law and its position is next to shruties and smritis. It is superior to written law. Most Hindu law is based on the customs and it is recognized as a legit means of a source of law even in smritis also. Customs can be classified into 4 types:
- Local customs: These customs are followed in a particular geographical area and its application is limited to that particular area only. For example in Rajasthan, there was a custom of child marriage prevalent.
- Caste and community customs: These customs prevail in a certain community of people and the people of that particular community follow the custom. For example in Sikhs, marriage is solemnized by Anand Karz.
- Family customs: It refers to customs that exist in a particular family. They can be easily abandoned as compared to other forms of customs.
- Guild customs: These customs are followed by a certain group of traders.
The words customs and usages are often used interchangeably but there is some sort of distinction between the two. Usage is the repetition of acts while custom is a law or general rule that arises from such repetition. A usage may exist without custom but custom can never exist without usage. Usage derives its authority from the parties to the transaction but custom where existing is binding on the parties.
Modern sources of Hindu Law.
Modern sources of Hindu law refers to those sources which are comparatively new sources that emerged over time and evolved in the present form. Following are the main source of Hindu law:
- Equity justice and good conscience
Equity justice and good conscience
Equity means being fair and implies fairness in dealing. Impartiality is the main attribute of modern judicial systems. True justice can be delivered through equity and good conscience. Where no rule is given, unreasonableness would prevail.
Sometimes it happens when a problem comes before the court for resolution, it cannot be settled by prevailing laws. Such a situation may be rare but might occur. In such a situation, courts can not refuse to provide a remedy, and also they are under obligation to decide such a case. In such cases, the courts are guided by the principle of reasonableness, basic values, and fair play.
So this principle is known as equity, justice, and a good conscience and it is also known as Natural law. This principle of natural law was prevalent in India since the British era.
So wherever conflict arises in the interpretation of Hindu law this principle is used by the courts either to formulate a new law or to carry forward existing laws.
The legislation is an act of parliament that plays an important role in the formation of Hindu law. The legislation is often regarded as a tool for social change. The legislation provides a base and authenticity to the laws. After the independence of India, there has been a steep increase in legislation regarding the codification of personal laws.
After codification, any point dealt with by the codified law is final. The enactment overrides all prior law, whether based on custom or otherwise unless an express saving is provided for in the enactment itself. In matters not specifically covered by the codified law, the old textual law contains to have application.
In modern society, this is the only way to bring in new laws. The parliament, in accordance with the needs society, constitutes new laws. For example, a new way of performing Hindu marriages in Tamil Nadu that got rid of rituals and priests was rejected by the SC on the basis that new customs cannot be invented. However, TN later passed an act that recognized these marriages.
Examples of legislations include the Hindu marriage act,1955, Hindu succession Act, Hindu minority and guardianship act, Hindu adoption and maintenance act, etc
Also, most of the Hindu laws have now been codified as mentioned in the beginning.
The doctrine of stare decisis started in India from British rule. All cases are now recorded and new cases are decided based on existing case laws.
After the establishment of British rule, the hierarchy of Courts was established. The doctrine of precedent based on the principle of treating like cases alike was established. Today, the judgment of SC is binding on all courts across India and the judgment of HC is binding on all courts in that state, except where they have been modified or altered by the Supreme Court whose decisions are binding on all the Courts except for itself.
Precedent is called to be a source of Hindu law in two senses –
First – practically all the important principles and rules of Hindu law have now been embodied in case law. In such matters, recourse to the source is not necessary. Reference to a leading decision is enough.
Secondly, – Precedent is a source of law in the sense that by the purpose of judicial interpretation, doctrines, principles, and rules of law stand modified or altogether new principles, doctrines, and rules have been introduced in the body of Hindu law. For these principle doctrines and rules, the sources of authority are Precedent.
In this way, various sources cumulate and unite in one to form a wide and dynamic Hindu law.