Q1 What are the main sources of hindu law ?

Ans 1 Main sources of hindu law :

1. Shrutis
2. Smrities
3. Digest and Commentaries
4. Judicial decisions
5. Legislation
6. Justic, equity and good conscience
7. Customs
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 religious.
Mitakshara school prohibits the marriage
between a shudra and a brahmin, inter-
caste marriages are allowed amongst the
upper caste only.
Salient features of Mitakshara School: The following are the features of this
school :—

1.     A son [now daughter also after the commencement of Hindu Succession
(Amendment) Act, 2005] has an interest in the ancestral property since birth and is a
coparcener in such property along with his father.

2.     Father has restricted power of alienation/transfer of the joint family property and
the son (or daughter) can claim partition at any time.

3.     Members of the Mitakshara coparcenary cannot dispose of their share while the

coparcenary is not divided.

4.     The rule of survivorship was applied for the devolution of interest in
coparcenery property. It has been now abolished by Hindu Succession (Amendment)
Act, 2005.

5.     The principle of inheritance under the Mitakshara law is consanguinity.

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.This school advocate
for more practical and rational doctrines.
Salient features of Dayabhaga School : The following can be enumerated as
salient features of this school :—

1.     The son has no interest in his father’s property by reason of his birth and right
to property arises by death of the last owner.

2.     Father has absolute power of alienation over all the property, whether ancestral
or self-acquired.

3.     The interest of every person passes by inheritance on his death to his heirs.

4.     Any member of a joint family can alienate in any manner his share even when
undivided.

5.     The principle of succession is based on spiritual efficacy.

6.     In this school, ‘sapinda‘ means of same ‘pinda‘, i.e., a ball of rice which is
offered by a Hindu to his deceased ancestors.

Difference between Mitakshara and Dayabhaga School

Mitakshara School

1.    Right to property arises by birth hence the son and after the Hindu Succession
(Amendment) Act, 2005 daughters of a coparcener also, is a co-owner in the
ancestral property with his or her father.

2.    Father has restricted power of alienation.

3.    Son can claim partition even against his father.

4.    Members of joint family cannot dispose of their shares while undivided.

5.    Doctrine of factum valet (a fact cannot be altered by hundred texts) is

recognised to a very limited extent.

Dayabhaga School

1.    Right to property arises on the death of the last owner hence there is no right in
ancestral property during the father’s lifetime.

2.    Father has absolute right of alienation.

3.    Son cannot claim partition or even maintenance.

4.    Members of joint family can dispose of their property in any manner even while
undivided.

5.    Doctrine of  factum valet is fully recognized.