SAGAR JAIN

LL.B 2nd SEM.

 SAGAR JAIN
LL.B 2nd SEM.

Introduction

The Hindu Law is credited to be the most ancient law system which is approximately 6000 years
old. The sources of Hindu Law can be kept under two headings:-

Ancient or original sources: According to Manu there are four sources of Hindu Law as per
following details, in addition to these four there was also that what is agreeable to one’s
conscience such as Shruti, Smriti, Digest and Commentaries, Custom and Usages.

Modern Sources: Following are the modern sources of Hindu Law such as Equity, justice and
good conscience, Precedent, Legislation.

All the above sources can be enumerated as:-

SHRUTI:- The name “shruti” is derived from the word “sru” which means to hear and it
signifies what is heard. Shruties are considered as the primary and paramount source of Hindu
Law. The shruti consist of the four Vedas and Upanishads dealing with the religious rites that
contain the meaning of attaining true knowledge and moksh as salvation. P.V.Kanne in his
book, “History of Dharamshashtra” said that,” If we want to see religion (Law) in a proper way,
then we should analysis Shruti and Smritis.”

SMRITIS :-Means ,”What was remembered” thus smritis were Smritis is known as golden era,
because it is era when well organised dependant on the remembrance of saints and the era of
creation of and serial wise development of Hindu Law started. It is the second important source
of Hindu Law. It is of two types first is prose style and the other is of poetry style. Smritis are
divided into two : a. Dharam Surtra:- Dharam sutra are famous of Gautam, Buddhyan,
Apastamb, Harit, Vishnu and Vasith. b. Dharam Shashtra:- Are famous for Manu Smriti,
Yagyavalkya Smriti, Narad Smriti etc. Manu smritis made of 12 chapters and 2694 shlokas.
Yagyavalkya smriti is divided into 3 parts and is extremely clear, brief and organised. Narad
Smriti being the last smiriti is such first legal code which mentions subjects related to Judicial
process, courts and Judiciary.

Digest and Commentaries:- These are the third important source of Hindu Law. The
commentaries through professing and purporting the rest on the smrities explains modified and
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LL.B 2nd SEM.

enlarged tradition recorded there to bring them into harmony and accordingly to prevent
practices of the day. In Atmarao v. Bajirao -1935: It was held that Digest writers and
commenter’s has given the statements of Smritis which can fulfill the present requirements &
ahead from smrities. The period of the commentaries and digest is between 700 AD -1700Ad.
The last commentary was Vajanty written by Nand Pandit.

CUSTOMS AND USAGES: – These are considered an important source of Hindu Law. Narad
Smriti says that, “Customs are powerful” they are above the religion. D.F.Mulla says that,
“Among the three sources of Hindu Law Custom and Usage are the one.” According to Holland,
“Custom is a step of generally followed conducts as a way is created over gress by repeated
walking similarly custom is created in accordance to the conduct of everyday life.”

In Collector of Madurai v. Mottaramlingam –1868: Privy Council held that in Hindu Law the
clear proof of customs shall be more relevant then the basic epics of law.” Similarly in Harparsad
v. Shiv Daya -1816: It was said that, “the custom is family or particular class or area owing to a
long tradition.”

Although codified law has given place to custom, but it is limited. Codified Hindu Law
recognises custom only when it has been expressly given a place. Custom under Hindu Marriage
Act 1955 can be applied over two topics: i. Any Marriage may be solicited by the customary
tradition of the parties.; ii. Divorce can be obtained be prevailing custom or usage and a married
male of female above the age of 15 years can be adopted as customary rules.

The Judicial Committee explained that, “Custom is a rule which in a particular family or in
particular district has from long usage, obtained the force of law. Hindu sages have recognized
good custom binding on the Hindu. Manu says, “In memorial is transcendent Law.”

Custom is divided in three parts:- Local custom, Class custom and Family custom.

EQUITY, JUSTICE AND GOOD CONSCIENCE:- In India the origin of equity is

traced the Hindu period when jurists explained the old law and gave new rules of interpretation
and equitable solutions in cases of conflict between the rules of various law. In case of a conflict
between the rules of smrities that should be followed this is based on reasons, justice and
principles of equity. In view of the above observations and its practical application it will not be
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incorrect to mention equity justice and good conscience as the next source of Hindu Law.
Actually Britishers not only established a judicial system in India but also facilitated though the
High Court charters that wherever there is lack of lawful rules, their decision should be on the
principles of equity, justice and good conscience. In Gurmukh Singh v. Kamla Bai -1951: It was
held that, “ Where there is lack of rules of Hindu Law over any subject, there court should
pronounce their decision on the basis of principle of equity, justice and good conscience.

Precedent: – It is an important source of law. It means he Judicial decision over any disputed
matter which shall be guideline for the disposition of future similar disputed matters. Generally
the decision of Supreme Court, High Court, Privy Council have the effect of precedent over the
subordinate court. The importance of Precedent as a source of Hindu Law can be understood
from the example that if we have to look into the importance of custom and Usages in Hindu
Law, then we shall have to analyse the case: Collector of Madurai v. Mottaramlingam, it is
pertinent to mention here that there are certain rules for the application of precedent like :- i. The
decision of Supreme Court is binding over all the subordinate courts.; ii. The decision of
Supreme Court is binding to its subordinate courts.; iii. The decision of Privy Council is binding
over all High Courts provided that it has not been over ruled by the Supreme Court in the Case of
Pandurang Kalu Patil v. State of Maharashtra – 2002.

Legislation: – The last important source of Hindu Law is the legislation. Their source has
originated after the establishment of English State in India, when English rulers started enacting
several laws. Laws were enacted in accordance to the state, time and circumstances, there were
amended too.

Today most of the subjects of Hindu Law have been codified. Some of the important Acts in this
respect are:-

Hindu Widow Remarriage Act 1856.

Prevention of Child Widow Act. 1929.

Hindu Women’s right to Property Act. 1930.

Hindu Women’s right to Separate Residence and Maintenance Act 1946.

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LL.B 2nd SEM.

Hindu Succession Act 1956

Hindu Marriage Act. 1955

Hindu Adoption & Maintenance Act. 1956

Hindu Minority and Guardianship Act. 1956