Sources Of Hindu Law

Dr. P. Vara Laxmi.

Associate Professor DSNLU
 Introduction
•Manu Smriti
•Sources of DHARMA
- Vedas, Smritis, Sadacharas, Good Conscience
• Yajnyavalkya says
- “Sruthi,Smriti, Sadachara, Swasyacha Priyamatmanam
Samyak sankalpajah kamo dharmamulam edam smrutham.”
• Main sources of Hindu law
1. Srutis
Rig Veda - . Fountain-head of Hindu religion - It contains 1028 Hymns
.Divided into Ten Groups
Yajurveda - Sacrificies . Part of hymns from Rig veda
Passages from prose. Explanations and directions to the Priests. Hymns of Rig
Ved as to marriage are used to this day.
Sam Veda -. Chanting Vedas .
Some of the Hymns of Rig Veda.
Meant for particular sacrifices in which the
juice of SOMA plant ( believed to the drink of the
Gods was principle offering
Soma botanical name Sarcostemma
Vimanalis
• Aharvana Veda
• Priests by name Atharvanas compiled Magical powers
and evil powers
• Vedas do not contain legal rules
• But vedas contain
• Marriage, types of sons, adoption partition inheritance and
stridhana
• Tattirya Samhita of Black Yajur Makes a Mention of Manu
Equal distribution among sons
• That is Vedic passage invoked equal distribution of ancestral
property among sons because women as destitute of strength
.
Post Vedic Period :
 Vedangas : Appendices to the Vedas came into existence
a. Siksha,
b. Kalpa- Dealing with rituals,
c. Vyakarana (Grammar),
d. Chandas or Prosody
e. Jyotish or Astronomy,
f. Niruktha or Lexicon
Upanishads
Upanishads are nothing but vedanta that is
concluding portion of Vedas and embody the highest
principles of Hindu religion and philosophy.
2. Smritis ( what was remembered) Next to Vedas
a) Manu smriti (200 B C) Oldest one contins 2694 slokas It deals with debts,
pledges, sales, deposits, partnership, gifts wages ,agreements, boundary
disputes , master and servant, husband and wife, partition and inheritance,
betting and gambling, assault, defamation, theft, robbery and adultery
b) Yagnavalkya smriti ( 2nd century A D) 1010 Slokas
It is divided in to
1) Achara (Ritual) Marriage)
, 2) Vyahara ( Secular)
Courts, procedure, Ordeals, Debts, Pledges and partition Kinds of sons,
Sales, defamation, assault, theft and adultery Prayaschitta ( Expiation)
.
• 3) Prayaschitta ( Expiation)
• Importance of Yajnavalkya Smriti
• It is due to Commentary by Vignaneswara
• Next Smriti and Brihaspati deals with legal
subjects
• Narada Smriti 4th Century
3. Commentaries and Digests
A code of Hindu law in Sanskrit was prepared by 10 learned pandits
under stewardship Warren Hastings By Vivada Arnava Sethu ( Bridge over
the Ocean of Litigation) 1773- 1775
English Version By Halheid Known as Halheid’s Gentoo code
Later Under Lord Cornwallis by Sir William Jones the then Judge of Calcutta
S.C, Translation of Hindu sacred laws by Manu
Under the same guidance in 1794 Jagannadha Tharka Panchanana Prepared
a digest of Smriti By name Vivada Bhangarnava (Ocean of solved legal
problems
British judges were assisted by native pandits who gave their opinions on the
dharma shastras applicable to hindus
This was abolished in1964 as the English judges felt that they could administer
the native laws without their assistance
• 4. Custom as a source
• a) Importance :
• Acharaha Paramodharmaha
• Yagnavalkya:
• A practice which a person practices
whether it is dharma or not, because it is the usage of
the country
• He also says that a person should not practice even
ordained by the Smriti, if it is opposed to custom
• P C Recognised the importance of the custom in Ramnad
Case 12 M I A, 397
• Here the question was whether in the dravida country a
widow could adopt even in the absence of express
authority from her husband
• Examples of customary practice with the authority of
the deceased husband’s sapindas a valid adoption could be
made by the widow were given
• Vasishta
• a woman should not adopt except with her husband’s
permission.
• P C : It was not open to the Judges to
embark upon an independent enquiry in to
the meaning of the Dharma Sastra Text. It
should be interpreted only in the light of the
Actual practice
• Sir James Colville
• Under the Hindu system of law clear proof of
usage will outweigh the written text of the law
• Types of custom
• Local Custom Ramnad Case
• Marriage with sister’s daughter
• relaxed in certain extent in south
• Family Custom
• A custom may govern only in one particular
family Certain Zamindaries devolution and marriages
• Caste custom
• Adoption in Brahmins and Sudras
• Essentials
• 1) Antiquity
• Case Ramalakshmi vs. Sovanatha.14 M I A.585
• claim of Zamindari by two sons by different wives
• One claim basing on that he was born earlier
• Other on that his mother was married earlier than the mother of
the rival claimant
• Question
• Here whether to consider priority in birth of sons or to the
marriage of the mother was to govern succession
• Examination of statements of several Zamindas and it was not
sufficient to prove the custom in that area
• General custom of the first-born son taking
the impartiable estate of Raja was given effect
to, as the family custom of devolution upon
the eldest son of the senior most Rani was
not proved
• 2) Certainity;
• when the evidence is conflicting, a uniform custom
is not to be established
• 3 ) Reasonableness
• Unreasonable customs which are opposed to public
policy are rejected by courts
• Ex Polyandry allowing a woman to re-marry during
the life-time of her husband was held to be immoral
• Allowing dancing girls to adopt daughters for
bringing them as prostitutes are immoral
 4. Not forbidden by any express provision of law.
 it is not only of statutory law but also of the
mandatory texts of Dharmasastras.
• 5. Discontinuance
• Customs which are applicable to only to a
particular families may be discontinued
• Case Abram Vs Abraham
•
• 5 Judicial decisions
• English Judges who administered the Hindu Law with the
help of Pandits had brought to bear their own nations for the
development of Hindu law.
• Their ignorance of Sanskrit, had the effect of imparting rigidity
• For the sake of justice, logic or harmony the effect of original texts
had been either altered or modified by the judges in their judicial
pronouncements. They constitute an important source of law
• This resulted in large number of decisions piled up on almost
every point of law and they superseded the law laid down in
commentaries
• Number of decisions so far piled up on almost every point
of law have superseded the law laid down in commentaries.
• In some cases the decisions of Pc in Hindu law are still
binding Precedents, where there is no decision of the S C
• 6. Legislations
• It is a modern source
• Prior to British Period
• Hindu law was scattered . Different parts of the country
followed different rules . It was difficult to find fixed rules of
several areas
• P C decisions in Hindu law where the supreme court
has given its pronouncements are taken to be still
binding.
• A precedent is not merely an evidence of law but
also a source of law. Courts are bound to follow it.
• Ex: Law relating to adoption,
• pious duty of the son to pay the father’s debts to the
extent of ancestral assets in hand,
• extension of such duty even during father’s life time
• 7. Legislation
• It is a modern source Most of them are in
the form of reformation
• During British period
• hindu law was scattered in different
part of the country and there were different
rules of practices. It was difficult to find fixed
principles of law on several points.
• Ex
• Caste Disabilities Removal Act, 1850
• Hindu widows Remarriage Act, 1856
• Special Marriage Act 1872 Repealed by 1954
• Indian Majority Act 1875 T. P >Act 1882
Guardian and Wards Act 1890
• Indian Succesion Act 1925
• Inheritance (Removal of Disabilities)Act, 1928
• Hindu Law of Inheritance ( Amendment) Act 1919
• Child Marriage Restraint Act 1929 (Sharada Act
• Hindu Gains of Learning Act 1930
• Hindu Women’s Right to property Act, 1937
• H.M Act 1955, H M & Guardiaship Act1956
• H S Act 1956 H A M Act, 1956
• Child Marriage Restraint ( Amendment ) Act1978
• Marriage Laws ( Amendment) Act, 1976
• H S ( Amendment) Act 2005
• 8) Equity Justice and good conscience
• Here equity means the principles emerging in the
course of administration of justice, where on account of
inadequacy of law the judges evolve certain general
principles on the basis of just ness, fairness and propriety
• S c in Gurunadh Vs Kamala Bai 1951 has recognised this
principle that in the absence of any rule of Hindu Law , the
courts have authority to decide the cases on this
principles Unless in doing so decision would be repugnant
to or inconsistant with any theory of Hindu Law.