SOURCES OF HINDU LAW

By
RAGAVI P
20211BAL0033
BA.,LL.B.(Hons)., & SECTION-1

SUBMITTED TO
Prof. MAMATA GM

SCHOOL OF LAW,
PRESIDENCY UNIVERSITY,
BANGALORE, KARNATAKA
March, 2023
 TABLE OF CONTENTS
INTRODUCTION……………………………………………………………………………1
IMPORTANCE……………………………………………………………………………….1
SOURCES OF HINDU LAW……………………………………………………………..1
ANCIENT SOURCES……………………………………………………………………….2
DIGESTS AND COMMENTARIES…………………………………………………….5
MODERN SOURCES……………………………………………………………………….7
CONCLUSION………………………………………………………………………………..8
INTRODUCTION:
For thousands of years, the inhabitants of the Indian subcontinent have
lived their lives following the instructions and concepts given in the Vedas.
These guidelines have evolved into the rules were followed by the people and
applied by the rulers and thus became the de facto law. In these modern
times, similar laws have been adapted to current conditions and have been
systematized in the form of several acts, the most important of which are -
Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act of 1956, Hindu
Minority and Guardianship Act of 1956 and The Hindu Succession Act of 1956.

IMPORTANCE:
Vijnaneshwar (commentator of Yajnavalkya Smriti and founder of
Mitakshara school) call it Jnapak Hetu, which means the way to know the law.
It is important to research the sources of the law because in any individual
legal system it is only this rule that law has its place in source. A rule not stated
or not recognized in the sources is not a rule in this legal system. The word
"Hindu" first appeared in the Old Persian language, derived from the Sanskrit
Sindhu, the historical vernacular for the Indus River in the northwest part of
the Indian subcontinent. A Hindu is a follower of Hinduism.
Hindu law is a personal set of laws governing the social conditions of
Hindus (such asmarriage and divorce, adoption, inheritance, minorities and
guardianship, family matters, etc.).In Sir Dinshah F. Mulla in 'Principles of
Hindu law', defined 'Hindu law' in next word: "Wherever the law of India
recognizes the operation of individual law, the rights anda Hindu's obligations
are determined by Hindu law, i.e. his traditional law, sometimescalled the law
of his religion, with the exception that any part of such law may bemodified or
abolished in accordance with the provisions of law”.

SOURCES OF HINDU LAW:

The sources of Hindu law can be classified under the following two
heads:
• Ancient sources
• Shruti
• Smriti
• Digests and Commentaries and
• Custom

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 • Modern sources
• Justice, equity and good conscience
• Precedent
• Legislation
• Customs

ANCIENT SOURCES:
Ancient Sources: Before the codification of Hindu Law, the ancient literature was the only source of
the law. These sources can be divided into four categories:

SHRUTI
It literally means "what has been heard". This word is derived from The
root "shru" means "to hear". In theory, it is the primary and primary source of
Hinduism law and was considered the language of divine revelation by the
sages. That is believe that rishis and munis have reached the pinnacle of
spirituality where they are reveal knowledge of the Vedas. Thus, shrutis
consists of four veda - rig, yajur, sama atharva with their brahmin. Brahmanas
are like subsections of Vedas. The Vedas mainly contain theories of sacrifice,
rituals, and customs. Some people believe that the Vedas have no specific law,
while some believe that the law is inferred from the entire Vedas. It is derived
from the original "vid" means "to know". Vedic terms are based on the
tradition that they are archives of all knowledge. Since the Vedas are of divine
origin, society is governed according to Theories are given in the Vedas and
they are considered the fundamental source of Hindu law. Shrutis basically
describes Vedic life. There are four Vedas namely:
• Rig Veda - containing hymns in Sanskrit to be recited by the chief priest
• Yajurva Veda - containing formulas to be recited by the officiating priest
• Sama Veda - containing verses to be chanted by seers
• Atharva Veda- containing a collection of spells and incantations, stories,
predictions, apotropaic charms and some speculative hymns
Each Veda has three parts:
• Sanhita - which consists mainly of the hymns
• Brahmin - tells us our duties and means of performing them
• Upanishad - containing the essence of these duties

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Shrutis includes the Vedas with their components. Brahmanas are like
subsections of Vedas. The Vedas mainly contain theories of sacrifice, rituals,
and customs. Some believe that the Vedas have no specific law, while others
believe that the law should be inferred from the full text of the Vedas. The
Vedas mention some rights and obligations, form marriage, require a son,
exclude women from inheritance and division, but these are not explicit laws.
During the Vedic period, society was divided into vars and life was divided into
ashrams. The concept of karma was born at this time. A person will be
rewarded according to his karma. He can achieve salvation through
"knowledge". During this period, the varna system became quite powerful. The
Vedic period is believed to be from 4000 to 1000 BC. During this time, a
number of sutras and gathas before smriti were compiled. However, not much
is known about them today. It is believed that many rishis and munis
incorporated local customs into the Buddhadharma and thus a number of
"shakhas" were born.
SMRITI
The word Smirti means remember. Traditionally, Smritis contain those
portions of the Shrutis which the sages forgot in their original form and the
idea whereby they wrote in their own language with the help of their memory.
Thus, the basis of the Smritis is Shrutis but they are human works. The number
of Smriti writers is almost impossible to determine but some of the noted
Smriti writers enumerated by Yajnavalkya (sage from Mithila and a major
figure in the Upanishads) are Manu, Atri, Vishnu, Harita, Yama, Katyayana,
Brihaspati, Parashar, Vyas, Shankh, Daksha, Gautama, Shatatapa, Vasishtha,
etc. The rules of smirti can be divided into 3 categories: achar, vivahar and
prayaschit.
Many sages have occasionally written down concepts given in the Vedas.
So it can be says that Smritis is a written memoir of the knowledge of the
sages. Immediately after during the Vedic period, the need for social regulation
arose. Therefore, the study of the Vedas and Sutras combination of local
culture and customs has become important. It is believed that many smritis
were composed during this time period and some were written down,
however, not all of them known. The smirtis is divided into two: Early smritis
(Dharmasutras) and Later smritis (Dharmashastras).

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Dharmasutras
The Dharmasutra was written inbetween 800 and 200 BC. They are mainly
written in prose form but also contains verses. They are clearly meant to guide
wise training to teach students. They integrated the teachings of the Vedas
with local customs. Surname usually bear their author's name and sometimes
also indicate the shakhas that they belong. Some of the important sages whose
sutras are known are: Gautama, Baudhayan, Apastamba, Harita, Vashistha and
Vishnu. They explain men's duties in different relationships. They don't
pretend to be anything differs from human work based on the teachings of the
Vedas and the legal decisions made by those who know the Vedas and local
customs. Gautama - He belongs to the Samvedic school and specializes in legal
and religious matters problem. He talks about inheritance, partitioning and
stridhan. Baudhayan - He belongs to the Krishna Yajurved school and is
probably from Andhra state. He talked about marriage, bloodline and
inheritance. It also refers to different customs of his region such as marrying
his uncle's daughter. Apastamba - His scriptures are best preserved. He also
belonged to the Krishna Yajurveda school of Andhra Pradesh. He refused the
prajapatya marriage. Vashistha - He is from North India and follows the
Rigveda school. He acknowledged remarriage of a virgin widow.

Dharmasastras
Dharmashastras were mostly in metrical verses. They were based of
Dharmasutras. They were a lot more clear and systematic. Out of many
dharmasastras, three were very important.
Manusmiriti: It is the oldest and important. It is not only defined as a way of
life in India but is well known in Java, Bali and Sumatra. The author's real name
is unknown as the author wrote it under the mythical name Manu, who is
considered the first. This was probably done to increase its importance due to
its divine origin. Manusmriti compiled all the laws scattered in the sutras and
gathas before Smriti. He is a Brahmin protagonist and is particularly harsh on
women and sudras. He considers local customs the most important. He
ordered the king to follow the custom but tried to protect the king with the
divine. Manusmriti was composed in 200 BC. There have been several
comments on this smruti. The main ones are:Manavarthmuktavali from
Kalluka, Manubhashya from Meghthithi and Manutika from Govindraja.

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Yajnavalkya Smiriti: Although written after Manusmruti, it is a very important
smruti. His language is very direct and clear. It is also much more reasonable.
He also attaches great importance to customs, but considers the king to be
above the law. He considered the law to be the king of kings and the king to be
only the enforcer of the law. He was not much concerned with religion and
morality, but above all with civil law. It covers most of the points given in
Manusmriti but also differs in many points like the position of women and
sudras. He is more liberal than Manu.
Narada Smriti: Narada is from Nepal and this smriti is well preserved and its
full text is available. This is the only smriti that doesn't deal with religion and
morality at all, but only focuses on civil law. It is very logical and precise.
Generally, it is based on Manusmriti and Yajnavalkya smriti but differs in many
respects due to changes in the social structure. He also attaches great
importance to customs. This was composed in 200 AD.

DIGESTS AND COMMENTARIES:

After Shruti came the age of commentators and summaries.
Commentary (Tika or Bhashya) and Digests (Nibandhs) covering a period of
more than a thousand years from the 7th century to1800 A.D. During the early
part of this period, most commentaries were written on Smritis. but in later
periods, works of a synthetic nature contained the synthesis of different
Smritis and explain and reconcile the various contradictions. development of
Different schools of Hindu law were possible due to differences Opinions are
written by different bodies. The original source of Hindu law was same for all
Hindus. But Hindu law schools came into being when people chose to join
another school for different reasons. After AD 200, most work was done only
on existing material at Smrtis. The work done to interpret a particular smriti is
called commentary. The comments are was composed in the period
immediately after 200 AD. Summary is mainly written afterwards and Combine
and document interpretation of all smritis. As stated earlier, some of the
commentaries are manubhashya, manutika and mitakshara. While the most
important summary is the Dayabhag of Jimutvahan applied in Bengal and the
Orissa region. Dayabhaga and Mitakshara are the two main schools of Hindu
law. Dayabhaga Law school based on the opinion of Jimutvahana (author of
Dayabhaga whosummaries of all the Codes) and Mitashara based on
commentaries written byVijnaneswar on the Yajnavalkya Code. Mitakshara
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literally means 'New word' and is major source of law across India. It is also
considered important in Bengal and Orissa where it is just born where it is
different from Dayabhaga. This is a very comprehensive legal treatise and
combine and resolve the contradictions that exist in smritis. The basic
objective of these texts is to bring together the scattered literature available in
the text and present a unified vision for the benefit of society. So the summary
is very logical and to the point in their approach. The various digests were
composed between 700 and 1700 AD.

Custom
Custom is a major source and its location is next to Shrutis and Smritis but
custom usage prevails over Smritis. It is superior to the written law. The
custom is considered an important source of Hindu law. From the earliest
times, the custom ('achara') was considered the highest "dharma". As defined
by the judicial committee, custom means a rule, within a particular family or in
any particular class or district that has attained the force of law over long
periods of use. Most of the laws of Hinduism are based on customs and
practices followed by people everywhere Nation. Even smrutis takes customs
seriously. They keep customs like transcendent law and advise kings to make
decisions based on custom after due time consider religion.

Proof of custom
The burden of proving a custom lies with the person who accuses it. Usually
customs are proven by example. In the case of Prakash v Parmeshwari, it was
ruled that a case demonstrate a custom. However, in Ujagar v Jeo, it is
assumed that if a custom has been repeatedly brought to the attention of the
court, without further evidence. The existence of a custom can also be
substantiated by documentary evidence as in Riwaz-i-am. Some treaties exists
in detail the customary laws of Punjab.

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Modern Source:
Equity, Justice and Good Consience
Fairness means fairness in relationships. Modern The judicial system is
primarily based on fairness. True justice can only be served by justice and good
conscience. In a situation where there are no rules in place, the feeling of
"reasonable" must prevail. Sometimes it is possible for a dispute to be brought
before the court that cannot solved by applying any existing rule in any
available source. Such as situations may be rare but possible as all kinds of
real-life situations arise may be governed by a corresponding law. The court
may not refuse to settle the dispute in the absence of a law and they are
forced to decide such a case as well. Because In order to hear such cases, the
courts are based on fundamental values, fair standards and rules play and
correct. In terminology, these are known as the principles of fairness, fairness,
and good conscience. They can also known as the law of nature. This principle
has been enjoyed in our country the source status legislation from the 18th
century when the British government made it clear that in the absence of a
rule, the above principle applies. According to Gautama, in such a situation the
decision should be at least accepted.at least ten people know the shastras.
Yagyavalkya says anywhere ever if there are conflicting rules, the decision
should be based on 'Nyaya'. This principle has been followed by the Privy
Council when deciding the cases.

Precedent
The doctrine of the decisive look began in India during British rule. All cases are
now registered and new cases are heard on the basis of existing case law. After
the founding of England As a general rule, a hierarchy of courts has been
established. The doctrine of precedent is based on principles of handling
similar cases in the same way have been established.

Legislations
Today, SC's ruling is self-imposed on all courts across India and HC's
judgment is binding on all courts in this state except when they have been
modified or altered by a binding Supreme Court decision on all Keys except on
itself. forming Hindu law. After India's independence, some important aspects
of Hinduism The law has been codified. Here are some examples of important
states: After encryption, any point specified in the encrypted rule is final. Law

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prevails any prerogative, whether based on custom or not, unless expressly
provided in the action itself. In matters not specifically covered by codified law,
the old text law contains to take the application.

Conclusion:
In the past, due to the vastness of the country, various kinds of customs
prevailed. Furthermore, do lack of effective communication, there is some
conflict between practice and judgment issued. Thus, the country is on the way
to being divided. Instead of becoming the law of the land (lex-loci), the Hindu
law became the law of man. However, this can only be one excuses for the
past. Today, thanks to the media and communications, judgments are
delivered in a single where is perceived elsewhere. A custom or custom that is
followed in a village can be offensive to the inhabitants of the village cities. We
must take advantage of this situation and get the country back on track law.
Instead of a nation of individual laws, we should have a law of the land. It's
time to implement Article 44. This will ensure our future unity and integrity.
nation. In modern society, this is the only way to make new laws. Congress, by
regulation with society in need, creating a new law. For example, a new
interpretation of Hinduism marriages in Tamil Nadu have removed ceremonies
and priests have been rejected by SC on the basis of that new customs were
not invented. However, the TN later passed a law recognizing these marriages.
Moreover, most of the laws of Hinduism are now codified as mentioned in the
beginning.

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