Mr.

Bashudeh Guha
Sources of llindu La

SOURCESs OF INDU LAW

Introduction: India is a country that comprises of people following diflerent religions. It is obvious tha
when it comes to goveming them, the religious beliels 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 he

looked upon while framing laws in order to govern people of diffcrent 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 divoree, marriages, inheritances, ete.

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 ofhislife. Right from the birth to the death of a person, everything is included and govermed 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, preaches love for everyone and contains the duties that
every individual has towards society as a whole. Dharma also was the major law that the kings of ancient
times, especially the Hindu kings used to govem the people. All the laws that were passed had to be in
conformity with the dharma, in simple tems the king was not above dharma and had to rule according to
dharma.

Ancient Sources of Hindu Law: Hindu law is made up of various texts 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 texts such as Shrutis and the Smritis, apart from that there are various
Upanishads that also were a part of Hindu law.

Shruti asa 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, and Atharvaveda. 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. Smritis are those
parts of shrutis that the sages forgot to tell in their original form and therefore down in the
wrote language
with which they were familiar with, therefore shrutis are considered to be the basis of smritis. There are
 Mr. Bashudeb Guha
Sources of Hindu Law
conlain the rules
first is Dharmasastras and the other is Dharmasutras. Dharmasastras
(wo kinds of smritis
contain the rules regarding
regarding the moral code of conduct for Hindus, whereas Dharmasutras
There are many
affairs, cating habits, ctc.
govemment, caste, the relationship between people. economic
smriti and Manusmriti.
smritis that one cannot count but the two famous smritis are Yajnavalkya

Manusmriti is also considered the first law book written by Manu.

of law is the digests and the commentaries

Digests and Commentaries: The third most important source

on the smritis, the area ol

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

Raja has written Manuka.

On Manusmriti: Medhatithi has written Manubhasya. Govind

on Mitakshara.
On Yajnavalkya: Vigneshwara has written the famous commentary

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

in particular Ilocal area.

Local customs- These are the customs that are prevalent a

Class customs- These are the customs that are prevalent amongst a particular class.
These are the customs that are binding on the members of the family.
Family customs-
in the
arrival of the British, many changes were brought
Modern Sources of Hindu Law: After the
sources of Hindu Law are
were also passed, the modern
personal laws of Hindus and many legislations
and precedents.
the doctrine ofjustice equity good consciousness, legislation,
where there was no proper law to settle the disputes
Equity and Good Consciousness: In
cases
Justice
used to give judgments according to the concept of Justice
nor there was an existing law, then the judges
based the concept of fair play, this doctrine did not
Equity and Good Consciousness. This doctrine was on

this
have a uniform application since the thinking of one judge may be different from the other, however,
Hindus.
doctrine played a huge role in transforming the personal laws of the

the acts of the parliament; various Acts were passed by the legislature
Legislations: The legislation means

Restraint Act of 1929, the Hindu Succession Act of 1956, the Hindu Marriage
such as the Child Mariage
Sources of Hindu Law Mr. Bashudeb Guha

Act of 1955 and the Hindu Minority and Guardianship Act of 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 be accepted and followed by all the people governing it. In modem 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

has been decided, it follow the decision if the facts of

particular case already seems reasonable to same

similar to the decided the decision of the Supreme Court is binding on

the case are case. In today's time,
all the made by other courts.
Schools of Hindu Law: There are two schools of Hindu Law namely: Mitakshara School and Dayabhaga

School.
This school is
Mitakshara School: It is a running commentary of the Smriti written by Yajnavalkya.
Assam. It contains rules regarding
applicable in the whole part of India except in West Bengal and
are to be
from this it contains rites and rituals that
marriages, the division of society into four castes, apart
considered sacred. Mitakshara School prohibits
performed during pregnancy, all these rites and rituals are
caste
are allowed amongst the upper
the marriage between a shudra and a Brahmin, inter-caste marriages
only. Mitakshara School is subdivided into four major schools namely:

in North India except in the rural areas of Punjab, where this school has
Banaras School: It is prevalent
been modified according to the customary laws.
Mithila School: This school is prevalent in some areas of Northern Bihar
and
Bombay School: This school was prevalent in westerm parts of the country mainly Gujarat

Maharashtra.

Madras or Dravid School: This school covers the whole of southern India including Karnataka, Tamil
Nadu, and Andhra Pradesh.

in Assam and West Bengal. This is also

Dayabhaga School: Dayabhaga School predominantly prevailed
be digest for the leading smritis. Its
of the most important schools of Hindu laws. It is considered to a
one

inheritance and joint family. According to Kane, it was

primary focus was to deal with partition,
incorporated in between 1090-1130 A.D.

Dayabhaga School was formulated with a view to eradicate all the other absurd and artificial principles of
inheritance. The immediate benefit of this new digest is that it tends to remove all the shortcomings and

limitations of the previously established principles and inclusion of many cognates in the list of heirs,

which was restricted by the Mitakshara School. In Dayabhaga School, various other commentaries were

followed such as: Dayatatya. Dayakram-Sangrah. Virmitrodaya and Dattaka Chandrika.

 Sources of Hindu Law Mr. Bashudeh Guha
piference between Mitakshara and
Dayabhaga School:
The difference in relation to
the joint property (1) Under Mitakshara School right to ancestral properiy
ariscs by birth. Hcnce the son becomes the co-owner of the property sharing similar rights as Ol Taner.

While in Dayabhaga School the right to ancestral property is only

given afler the death of the last
owner
It does not recognise the
birthright of any individual over an ancestral property.
(2) Under the Mitakshara School the father does not possess the absolute right to alienate the property but

in Dayabhaga the father has the absolute right of alienation of the ancestral property, as he is the sole

owner of that property during his lifetime.

(3) Under Mitakshara School the son attains the right to become the co-owner of the property he can ask
for the partition of the ancestral property even against the father and can demand for his share but in the

case of Dayabhaga School son has no right to ask for the partition of ancestral property against his father.

4) Under Mitakshara School the survivorship rule is prevalent. In case of the death of any member in the

joint family, his interest shall pass to other members of the family. While in the case of Dayabhaga
School the interest of the member on their death shall pass on to their heirs like widow, sons and

daughters.
6) Under he Mitakshara School the members cannot dispose of their share of the property while
undivided while in Dayabhaga School the members of the family enjoy the absolute right to dispose of

their property.

The diference as regards to inheritance: (1) Under Mitakshara the rule of blood relationship or

consanguinity is followed in case of inheritance whereas in the case of Dayabhaga School the inheritance

is governed by the rule of the offering of pinda.

(2) Under Mitakshara School the cognates are postponed to agnates or not prefered upon agnates while
in the case of Dayabhaga cognates are preferred upon the agnates.

the recognition of
(3) Mitakshara School expanded its recognition to a
very limited extent in regards to

the doctrine of Factum Valet but Dayabhaga, on the other hand, has expanded its recognition to the full

extent.

(4) Under the Hindu law the difference between the Mitakshara School and the Dayabhaga School is not

recognised as in the present scenario there exists one uniform law of succession for all the Hindus.

The Doctrine of Factum Valet: The doctrine of "factum valet quod fieri non debuit" means what ought
not to be done becomes valid when done. This principle was formulated by the authors of the Dayabhaga
School and was recognised to a limited extent by the followers of the Mitakshara School. The doctrine of

factum valet states that once an act is done or a fact is accomplished it cannot be altered by the written

exts of laws. As the fact is considered to be a concrete establishment and is deemed to be legally binding.