Sources of Family Law

This article is written by  Lakshay Kumar, a second-year B.A.LLB student of

Delhi Metropolitan Education, Indraprastha University. In this article, he talks
about the various sources of Hindu, Muslim and Christian law.

Introduction
India is a country that comprises of people following different religions. It is
obvious that when it comes to governing them, religious beliefs of the people
cannot be ignored, but the question is what all things should be considered
as law and what not, not only this which all sources should be looked upon
while framing laws in order to govern people of different religions. The two
major religions in India are Islam and Hinduism. Apart from that, there is a
considerable amount of population comprising of Sikhs, Buddhists, Jains, and
Christian. Therefore it is necessary to examine all the sources which are
looked upon before framing laws affecting the lives of people especially their
personal matters like divorce, marriages, inheritances, etc.

Hindu Law
Hindu law is nothing but the concept of dharma, the concept of dharma in
Hindu law is not defined precisely but it has come to mean the way of life a
person lives and enjoys, which includes every aspect of his life. Right from
the birth till the death of a person everything is included and governed by
dharma. In other words, dharma is sometimes said to be the guiding force
for all the Hindus. It contains rules regarding the proper conduct of people, it
preaches love for everyone and contains the duties that every individual has
towards the society as a whole. Dharma also was the major law which the
kings of ancient times, especially the Hindu kings used to govern the people.
All the laws which were passed had to be in conformity with the dharma, in
simple terms the king was not above dharma and had to rule according to
dharma.

Scope of Hindu law

Essentially Hindu law consists of all the activities and the practices that
people have been following from time to time and thus becoming customs,
however as the society progressed Hindu law was majorly used to establish
the brahmin dominance, the concept of caste system is also an example of
this under which the Brahmins were placed at the top and the kings who had
the real power below them.
Sources of Hindu law
Hindu law is made up of various text and scriptures, the growth of Hindu law
was both natural and sometimes helped by the legislation that was enacted
during the British period. Sources of Hindu law can be divided into ancient
sources and modern sources.

Ancient sources include religious text such as shrutis and the smritis, apart
from that there are various Upanishads which also were a part of Hindu law.

Shruti as a source of law

Shruti means to hear, it is derived from the word “shur” which means to
hear. Shrutis are considered to be the major source of Hindu law. Another
term for Shruti is Veda. according to Hindu law, there are four Vedas namely,
Rigveda, Samveda, Yajurveda, Atharveda. The brahmins used to pronounce
what is written in these Vedas to the people. Since brahmins were considered
to be knowledgeable people whatever they said was of supreme importance
and it was considered to be the law of the land, therefore shrutis contain
what is written and pronounced by the brahmins. Brahmins also tell us about
the duties that the individual has to follow and how to perform these duties.
The Upanishads contain the essence of these duties.

Smriti as a source of law

Smriti is derived from “smri” which means to remember. Smrtis are those
parts of shrutis which the sages forgot to tell in their original form and
therefore wrote down in the language which they were familiar with,
therefore shrutis are considered to be the basis of smritis. There are 2 kinds
of smritis first is Dharmasastras and the other is Dharmasutras.
Dharmasastras contains the rules regarding the moral code of conduct for
Hindus, whereas Dharmasutras contains the rules regarding government,
caste, the relationship between people, economic affairs, eating habits, etc.
There are many smritis that one can not count but the two famous smritis
are Yajnavalkya smriti and manusmriti. Manusmriti is also considered to the
first law book written by Manu.

Digests and Commentaries

The third most important source of law is the digests and the commentaries
written by various authors of Hindu law. Commentaries generally comment
on the smritis, the area of commentaries is from the 7th century to 1800 AD.
Commentaries also laid the foundation of various schools of Hindu law.
Digests contain the important aspects of all the smritis and discussed their
reconciling and contradictions. Various digests and commentaries have been
written by various authors on the two most famous smritis that is manusmriti
and yajnavalkya smriti namely.

On manusmriti
1. Medhatithi has written Manubhasya.
2. Govind Raja has written Manuka.

On yajnavalkya
1. Vigneshwara has written the famous commentary on Mitakshara.
2. Arpaka has written Aparaditya.

Customs
Customs are the most important and the oldest form of lawmaking, customs
mean the traditions, practices, activities, that people have been following for
generations and overtime recognized as law. The essence behind considering
customs as a major source of law is that since people follow customs and if
some customs are not harmful to society then the state has no problem
recognizing it. In order, that a custom becomes law there are some
essentials which it may fulfill such as a custom must be valid, it should be in
continuity, it should be followed by a large number of people and last it must
not be discriminating and should not be opposed to public policy.

Indian law has recognized 3 types of custom namely:

1. Local customs- These are the customs that are prevalent in a particular
local area.
2. Class customs- These are the customs that are prevalent amongst a
particular class.
3. Family customs- These are the customs that are binding on the
members of the family.

Modern sources of Hindu law

After the arrival of British many changes were brought in the personal laws
of Hindus and many legislations were also passed, the modern sources of
Hindu Law the doctrine of justice equity good consciousness, legislation, and
precedents.
Justice Equity and Good Consciousness
In cases where there was no proper law to settle the disputes nor there was
an existing law, then the judges used to give judgments according to the
concept of Justice Equity and Good Consciousness. This doctrine was based
on the concept of fair play, this doctrine did not have a uniform application
since thinking of one judge may be different from the other, however, this
doctrine played a huge role in transforming the personal laws of the Hindus.

Legislations
The legislation means the acts of the parliament, various Acts were passed
by the legislature such as the Child Marriage Restraint Act, 1929, Hindu
Successsion Act, 1956, Hindu Marriage Act, 1955, Hindu Minority and
Guardianship Act, 1956. The legislation passed is binding upon all the other
sources of law.legislation is codified this means it has been written in a
proper way and it has to accepted and followed by all the people governing
it. In modern times legislation is also called as the lawmaking body.

Precedents
After the establishment of British rule, courts were established and the
hierarchy was introduced. Precedent means following the decision of the
higher courts by the courts below it, if a particular case has already been
decided, it seems reasonable to follow the same decision if the facts of the
case are similar to the decided case. In today’s time, the decision of the
supreme court is binding on all the made by other courts.

Schools of Hindu Law

There are two schools of Hindu Law namely:

1. Mitakshara school
2. Dayabhaga school

Mitakshara school
Mitakshara school derives its name from the commentary of Vijyaneshwara
named Mitakshara. Mitakshara school contains rules regarding marriages,
division of society into four castes, apart from this it contains rites and rituals
that are to be performed during pregnancy, all these rites and rituals are
considered sacred. Mitakshara school prohibits the marriage between a
shudra and a brahmin, inter-caste marriages are allowed amongst the upper
caste only.

Mitakshara school is subdivided into four major schools namely:

 Banaras school
It is prevalent in North India expect the rural areas of Punjab, where this
school has been modified according to the customary laws.

 Mithila school
This school is prevalent in some areas of Northern Bihar.

 Bombay school
This school was prevalent in western parts of the country mainly Gujarat and
Maharashtra.

 The madras or Dravida school

This school covers the whole of southern India including Karnataka, Tamil
Nadu, and Andhra Pradesh.

Dayabhaga school
Dayabhaga school is prevalent in Bengal and Assam. Dayabhaga school
professes benefit for the governance of the rules of succession.The
immediate effect of this school was that there was an inclusion of many new
people in the list of hires for succession which was not mentioned in
Mitakshara school. Dayabhaga school preaches logic and reason rather than
precepts and precedents. This school advocate for more practical and rational
doctrines.

Sources of Islamic Law

Islamic law is made up of various sources, Quran the holy text being the
main source, after Quran the main source of Islamic law is sunnah, both
Quran and Sunnah are considered to be the primary source of law, apart
from the primary source the other sources of Islamic law consists of ijma and
qiyas.
Primary source

Quran
Quran which is the holy book for Muslims and is the main source of Islamic
law. Quran is said to contain the direct sayings of Allah through his
messenger Muhammad.Quran contains the rules and regulations regarding
the conduct of Muslim people and various socio-economic laws. Quran was
compiled soon after the death of Muhammad. Quran is not a legal textbook
as it only contains the rules regulating man’s conduct with himself and God.

Sunnah
After the Quran the main source of Islamic law is the Sunnah, Sunnah
contains the sayings of Muhammad, his daily activities, his prayer and his
way of life. Since Muhammad is considered to be the perfect human being
therefore whatever he says, does or advocates to perform becomes law for
the other people. Quran is essentially a religious book and therefore it does
not contain the legal and practical rules and therefore Muslims refer to
sunnah on issues where the Quran is silent or does not have proper
regulation.

Secondary Sources

Ijma
Ijma is considered to be the third most important source of Islamic law, ijma
refers to the consensus among the learned Muslim jurists on a particular
legal issue. However, there has been a discussion among various jurists
whether to consider Ijma as a primary source of law or a secondary source of
law. The Sunni jurists consider Ijma as an important source of law for
making legislation, whereas the Shia jurists consider it as a secondary
source.

Qiyas
Qiyas is the analogical deduction and is a secondary source of Islamic law. It
means deciding cases according to reason, many Islamic jurists point
towards the validity of Qiyas as a primary source of law by citing the Quran,
as Muhammad in the Quran has said that if he is not able to resolve the
dispute through a proper injunction then, in that case, he shall use his
reason to solve it. The main principle behind the concept of Qiyas is that
since every injunction is based on some benefit of the people, thus if a cause
of injunction is taken from a primary source then the analytical deduction can
be applied to cases with similar causes.

Schools of Islamic law

There are 4 schools of Islamic law namely:

1. The Hanifa School founded by Abu Hanifa.

2. The Maliki School founded by Malik ibn Anas.
3. The Hanbali School based on the teachings of Ahmed ibn Hanbal.
4. The Shafi School founded by Muhammad ibn Idris-ash Shafi.

Hanifa School of Thought

The Hanifa School is the most popular school of thought among the other
four schools of thought. It is majorly followed in North India, out of the four
schools of thought Hanifa school of thought is much more liberal towards the
non muslims, the Hanifa school of thought gives greater importance to the
rational deduction.

The Maliki School of Thought

The Maliki school of thought is the second largest school of Islamic
jurisprudence when it comes to the percentage of its followers. This school is
followed by at least 25% of the Muslim population. This school of thought is
predominantly different from other schools of thought when it comes to
sources to derive its sayings, however like other schools, the Maliki school of
thought also Quran as the major source of Islamic law. The only thing which
differs this school from the other school of thoughts is that, it also considers
the practises followed the people of Medina as an important source of Islamic
law as Muhammad was born in Medina, lived there, formed a government
there and died there Another major difference between Malki and other
schools is in the way people offer prayer, according to the of Maliki school
during prayer the hands should be kept at side but this is not same in the
other schools.

The Hanbali School of Thought

The Hanbali school of thought does not have great followership, still, it is an
important school of Islamic jurisprudence. It is considered to be the most
orthodox schools of Islamic jurisprudence as it wants to the strict
implementation of the Quran and the sayings of Muhammad, however it is
considered to be one of the most liberal schools when it comes to trade or for
commercial purposes. The current set of individuals who believe in Wahabism
is influenced by this school.

The Shafi school of Thought

The Shafi school of thought is mostly followed in Yemen, Sri Lanka,
Indonesia, and Palestine. It considers the Quran, Ijma, Sunnah, and Qiyas as
the major source of Islamic law, however, it relies less on qiyas while trying
to construct its sayings. Apart from this it also considers the sayings of
Muhammad’s close companionship as a source of Islamic law.

Sources of Christian Law

The four major sources of Christian law are:

1. Scriptures i.e the Holy Bible

2. Traditions
3. Reasons
4. Experience

Scriptures
The Holy Bible is made up of books that were written over a period of 1000
years. It contains letters, history, genres, and poetry. The Bible can be
divided into two sections: the first is the old testament and the second is the
new testament which contains the life of Jesus and the life of early Christian
society. some Christian consider every word of the Bible correct whereas
some consider the literature as the major ground for a moral foundation.

Traditions
Initially, traditions were interpreted as the teachings of Jesus Christ to his
followers and then the followers recited the teachings to the Christian people,
today it has come to be associated with the approaches that guide the of
different Christian groups. Orthodox Christians gave high importance to
traditions.
Reasons
Reasons like tradition have very high importance among the Christians, it is
sometimes used to get an understanding of the Bible, there might occur
situations when Bible and Traditions might come in conflict with reasons but
for that reason would be neglected.

Experiences
Some people also consider experiences as an important source to understand
Christian theology. Experience includes people’s thinking, their thoughts, and
their five senses. The reason behind including experience as a source of
Christian Theology is that whatever happens with the individual in his life is
real, it was felt that Christianity must incorporate these experiences in it as
well.

Conclusion
In India, since there are so many religions it is not possible to have a
common source for the personal laws of different communities and therefore
different sources have to be approached while making laws for people who
follow different traditions. Although my personal opinion is a bit different.
When you have different laws governing people of the same nation it leads to
nonuniformity. For a nation to develop you need uniformity and considering
the various laws of different countries we find our law is much suited to the
social conditions of India.

One of the major aims of law is to command obedience and there is no better
way to demand obedience by making people follow their own traditions which
they have been following for centuries.