NATURE AND ORIGIN OF

HINDU LAW

[UNIT –I]
 CONCEPT OF DHARMA
• According to Hindu Jurists, law is enforceable part of Dharma.

• Law is Dharma itself

• The word ‘Dharma’ is derived from the root ‘dhri’(to hold, support or
maintain)

• It means law or duty, or essential quality of persons or things.

• Hindu law is a body of principles or rules called ‘Dharma’.

• Dharma according to Hindu texts embraces everything in life.

• According to the Hindus, ‘Dharma’ includes not only what is known

as law in the modern sense of the term but all rules of good & proper
human conduct.
• The word ‘Dharma’ according to Hindu Mythology means “duty”.
• According to Hindu jurisprudence, Dharma means the duties in many ways- Sociological duties,
legal duties or spiritual duties.
• With this context, we can say that Dharma can referred to as the concept of justice.
• As referred to in the ‘ Bhagawat Geeta’, God creates a life using the principles of Dharma-
1. Patience
2. Forgiveness
3. self-control
4. Honesty
5. sanctity (cleanliness in mind, body & soul)
6. control of senses
7. reasons
8. knowledge
9. truthfulness
10. absence of anger
• Accordingly, the salvation which means “Moksha” is the eternal
Dharma for humans according to Hinduism.
• Hindu epics like Ramayana & Mahabharata also refers to Dharma.
• They say that executing one’s Dharma is the right aim of every
individual.
• And also at that time, the king was known as Dharmaraj because the
main motive of the king was to follow the path of Dharma.
• Sovereign himself was not exempted from Dharma.
• He was bound to obey law along with his subjects.
• Hindu jurisprudence takes more care over the duties more than the
rights.
• The nature of these Dharma changes from person to person.
• There are many duties of many people in this world – For eg: farmer’s
duty is to produce food, the doctors duty has to cure the people, the
lawyers have to fight for justice and so on.
• Dharma being a highly religious concept in nature, it is multi-faceted-
it contains many laws & customs in a large subjects which is needed to
be followed by each & every person.
APPLICATION OF HINDU LAW
 Origin of the term ‘Hindu’:
• Generally, the term ‘Hindus’ denotes all those persons who profess
Hindu religion either by birth from Hindu parents or by conversion to
Hindu religion.
• The word Hindu is derived from the river Sindhu otherwise known as
Indus which flows the Punjab.
• Later on Greek dropped the hard aspirate ‘H’ and pronounced it as
Indoi which later came to be known as India.
Who are Hindus?
1. Hindu by Religion
2. Hindu by Birth
3. Persons who are not Christians, Muslims, Parsis or Jews
4. Converts to Hinduism
5. Reconverts to Hinduism
1. Hindu by Religion:
• Two types of persons fall under this category:
a. Those who are originally Hindus, Jains, Sikhs or Buddhist by
religion, AND
b. Those who are converts or reconverts to Hindu, Jain, Sikh or
Buddhist
• Any person who follows Hindu religion in any of its form or
development, either by practising it or by professing it, is a Hindu.
• However, Hindu religion is multifaced & it is difficult to say with
precision what is Hinduism.
2. Hindu by Birth:
A person will be a Hindu:
a. If both the parents are Hindus, their child, whether legitimate or
illegitimate, is automatically treated as a Hindu and the Hindu law
applies to it.
b. If only one of the parent is Hindu it would be governed by Hindu
law, provided the child was brought up as a Hindu.
a. When both the parents are Hindus:
• Children born of Hindu parents are Hindus.
• It is necessary that both the parents should be Hindus, Sikhs, Jains or Buddhists.
• If one parent is a Hindu & the other is Jain, Sikh or Buddhist, then also the child
will be a Hindu.
• Such child may be legitimate or illegitimate.
• It is immaterial that such a child does or does not profess, practice or have faith
in the religion of its parents. The emphasis is on birth.
• If at the time of the birth both the parents were Hindus, the child is a Hindu. If
after the birth of a child, both or one of the parent becomes convert to another
religion, the child will continue to be Hindu child, unless, in the exercise of
parental right the child is also converted into the religion in which the parent or
parents have converted. In case of legitimate child this right can be exercised by
the father, and in respect of an illegitimate child by the mother.
b. When any one of the parent is Hindu:
• A person will be a Hindu if the following conditions are satisfied:
i. At the time of his birth one of the parents was Hindu ,AND
ii. he is brought up as a member of the tribe, community, group or family to
which Hindu parent belonged at the time of the birth of the child.
 This was the position even before the codified Hindu law.
• Under the modern Hindu law, the child’s religion is not necessary that of the
father.
• If the mother of a child at the time of the child’s birth was a Hindu and the child
was brought up as a Hindu, the child would be a Hindu.
• For Eg: A child is born of a Hindu mother & a Muslim father. The child is
brought up as a Hindu. Subsequently, the mother converts to Islam. Here the
question arises whether child is a Hindu as neither of the parents is Hindu. But
the child is Hindu.
3. Persons who are not Christians, Muslims, Parsis or Jews:
• Any person who is not a Muslim, Christian, Parsi or Jew & who is not
governed by any other law, is governed by Hindu law, unless it is
proved that Hindu law is not applicable to such person.
• Those persons who are atheists or who believe in all faiths or in
conglomeration of faiths, may fall under this class.
• Such persons may not be Muslims, Christians, Parsis or Jews and yet
it may be difficult to prove that such persons are Hindus.
4. Converts to Hinduism:
• At one time it was thought that a Hindu “is born & not made”.
• This means that no one could claim to be governed by Hindu law
simply by professing Hinduism, if he is not a Hindu by birth.
• However, now this proposition is unsound for a person who is not a
Hindu by birth may come under the operation of Hindu law by
conversion to Hinduism.
 Mohandas v. Devaswom Board
• Jesudas, a Famous play back singer, was a Catholic Christian by birth.
He used to render devotional music in a Hindu temple & used to
worship the presiding diety. He also filed a declaration stating that he
was the follower of Hindu faith. It has been held that such a bonafide
declaration amounts to his acceptance of Hindu faith & becomes a
Hindu by conversion.
5. Reconverts to Hinduism:
• A person who is a reconvert to Hinduism, Jainism, Buddhism or
Sikhism is also a Hindu.
• A person who ceases to be a Hindu by converting to a non- Hindu
religion will, again, become a Hindu if he reconverts to any of the four
religions of Hindus.
• It is not necessary that he reconverts to the same religion from which
he converted to the non-Hindu religion.
• For Eg: A Jain who converted to Islam will be a Hindu if he converts
to Sikhism
• There are some noteable features relating to the application of
Hindu Law which can be studied as under:
1. A mere association with a non-Hindu cannot prevent the applicability
of Hindu law.
Rani Bhagwan Koer v. J.C. Bose
• ‘A’, a Hindu recites the quran and takes food & meals with a Muslim
friend. Held that, ‘A’ will not cease to be Hindu unless he renounces the
Hindu religion.
2. A person of other faith, if converted to Hinduism, becomes Hindu &
Hindu law will be applied.
 Ratanji Morarji v. Adm- General of Madras, where an European lady
converted to Hinduism by the ceremony of Shuddhi and subsequently she
adopted Hindu name & married with Hindu male. The Court held that she
was a Hindu.
3. A person who re-converts to Hinduism is also a Hindu.
4. Persons belonging to several aboriginal tribes & tribal races are also
governed by Hindu law.
 Dharmragya v. State
• Held that, it is now an accepted fact that tribal people living in the
interior parts of the country, whose way of life, habits and culture have
been influenced by Hindus and who profess Hinduism generally called
as Hindus.
 SOURCES OF HINDU LAW
Sources of Hindu law is classified as two parts:

A. Ancient sources

B. Modern Sources
A. Ancient sources:
1. Sruti
2. Smrutis
3. Digest & commentaries
4. Customs
A. Ancient Sources:
1. Shruti:
• It literally means that which has been heard.
• The word is derived from the root “Shru” which means ‘to hear’/ ‘What
was heard’.
• In theory, it is the primary & paramount source of Hindu law & is
believed to be the language of the divine revelation through the sages.
• Hindu law is considered to be a divine law, a revealed law.
• The theory is that some of the Hindu sages had attained great spiritual
heights, so much so that they could be in direct communication with God.
• At some such time the sacred law was revealed to them by God Himself.
• This revelation is contained in Sruti or Vedas.
• The term Sruti stands for four vedas-
a. The Rig
b. The Yajur
c. The Sama
d. The Atharva,
• along with their respective Brahmanas.
• Brahmanas are like appendices to the Vedas which are added later on.
• They deal with various ceremonies, rituals and sacrifices.
• Each Vedas has three parts-
i. Sanhita (which consists mainly of the hymns)
ii. Brahmins (tells us our duties & means of performing them)
iii. Upanishad (containing the essence of these duties)
• Since the Vedas are said to contain the voice of God, they are considered to be the
fundamental or the primary source of law.
• The Vedas are said to be the source of all knowledge.
• In that view, entire body of Hindu law has emanated from the Vedas.
• Since it has emanated from Vedas, Hindu law is a divine law, a divine
revelation.
• Thus, in theory Sruti is considered as fundamental sources of Hindu
law.
2. Smritis:
• The word ‘Smriti’ literally means “What was been remembered”.
• According to tradition, the Vedas are also called as Srutis (What is heard)
represent the direct word of God as heard by the sages.
• While Smritis (What was remembered) represent what was recorded by the
sages in their own words of what they had heard from the Deity.
• There are two kinds of Smritis-
a. Dharma Sutras
b. Dharma Shastras
• The early Smritis were termed as Dharma Sutras. They were written in
prose form (Short maxims- Sutras) & were written by the teachers
expounding Vedas for sake of their students.
• Gautama, Boudhayana, Apasthamba, Vasishta, Vishnu & Harita are the
main Dharma Sutras.
• The later Smritis were termed as Dharma Sashtras, which are more
systematic expositions than Dharma Sutras.
• Dharma Sutras are composed in poetry (Shlokas).
• The subject matters in these Smritis is divided into:
a. Achara (relating to morality)
b. Vyavahara (signifying procedural & substantive rules which the
King or the State applied for settling disputes in the adjudicating of
justice)
c. Prayaschitta (signifying the penal provision for commission of a
wrong)
• The principles of law are mostly covered under the part- Vyavahara.
The Oldest Smriti is Manusmriti.
• The code of Manu contains 2694 Shlokas dates from 200B.C.
• These Codes deals with many matters and the part bearing with law deals with the
subject under 18 titles-
1.Debts,
2.pledges,
3.sales,
4.deposits,
5.partnership,
6.gifts,
7.wages,
8.agreements,
9.boundary,
10. disputes,
11.master & servant,
12.husband & wife,
13.partition & inheritance,
14.betting & gambling,
15.assault,
16.defamation,
17.theft,
18.robbery &adultery.
He gave importance to custom as source of Dharma.
The Yajnavalkya Smriti (2nd Century) which contains 1010 slokas
is divided into –
a. Achara (Rituals)
b. Vyavahara (Secular)
c. Prayaschitta (Expiation)
d. Kandas or parts
 The chapter on marriage is found in Achara & Kanda.
 In secular law (Vyavahara), the codes deals with courts, procedure,
debts, pledges, partition, sales, defamation, assault, theft, adultery, etc.
Other Smritis to which reference may be made are:
The Narada Smriti (4th Century A.D.) and Brihaspati Smriti, which
deal largely with legal subjects.
• The Smriti of Brihaspathi is fragmented & has to be compiled from
the reference to that Smriti in various commentaries on other Smritis.
• Narada Smriti recognised the power of the Kings to make laws
without going beyond the injunctions of Vedas.
3. Digests & Commentaries-
• The period of Commentaries & digest is between 700 A.D. to 1700 A.D.
• Interpretation of law which is laid down in Smritis- Commentaries &
Digests
• Single interpretation of Smritis- Commentary.
• Different interpretation of Smritis- Digestive.
• The evolution of the different schools of Hindu law has been possible on
account of different commentaries that were written by various
authorities.
• The source of Hindu law was the same for all Hindus.
• But Schools of Hindu law arose as the people chose to adhere to one or
the other school for different reasons.
• Hence, it gave rise to two schools of Hindu law-
1. The Mitakshara School- based on commentaries written by
Vijnaneshwara on the code of Yajnavalkya
2. The Dayabhaga School- based on commentaries written by
Jamutvahana (author of Dhayabhaga which is digest of all Codes)
4. Custom:
• Custom is one of the most important sources of law.
• Custom is a rule, which in particular family, a particular class,
community or in a particular district, has a prolonged use, obtained the
force of law.
• Manu recognised custom as a source of Dharma: Acharaha
Paramodharmaha.
• Yajnavalkya defines custom as “that which a person practices
whether it is Dharma or not, because it is the usage of the country”.
• He definitely says that a person should not practice even what is
ordained by the Smriti if it is opposed to custom.
 Different kinds of Custom:
1. Local Custom
2. Family Custom
3. Caste custom
1. Local Custom:
This is a custom prevailing particular locality or district and they
are binding on inhabitants of such place. For eg: law of marriage-
marriage between certain degree of relationship are permitted in
particular locality as their custom.
2. Family custom:
A custom may govern only one particular family. These are
customs which are binding upon the members of a family.
3. Caste Customs:
There are some customs which prevail among particular castes. For
eg: Brahmins & Sudras, etc. Thus in the law of adoption, among
Brahmins a Homam is necessary for adoption. But among Sudras giving
& taking of the boy is sufficient.
 Essentials of Custom:
1. Custom must be Ancient.
2. Custom must be Continuous.
3. Custom must be Certain.
4. Custom must not be unreasonable.
5. Custom must not be immoral & not opposed to public policy.
6. Custom must not be against the law.
7. Custom cannot be created by agreement.

[NOTE: Explain the above points]

B. Modern Sources:
1. Justice, equity & good conscience
2. Precedent as a source of Hindu law
3. Legislation as a source of Hindu law
B. Modern Sources:
1. Justice, equity & good conscience:
• Occasionally it might happen that a dispute comes before a Court which cannot be settled
by the application of any existing rule in any of the sources available.
• Such a situation may be rare but it is possible because not every kind of fact situation
which arises can have a corresponding law governing it.
• The Courts cannot refuse to the settle the dispute in the absence of law & they are under an
obligation to decide such a case also.
• For determining such cases, the Courts rely upon the basic values, norms, etc.
• The common law tradition of applying the principle of “Justice, equity & good
conscience”, when the law is silent on a given point was conveniently applied by the
Britishers in their administration of justice.
• Afterwards the Supreme Court of India recognized that in the absence of any rule of Hindu
law the Courts have authority to decide cases on the principle of “Justice, equity & good
conscience”.
2. Precedent as a source of Hindu law:
• After the establishment of British rule, the hierarchy of Courts was
established.
• The doctrine of Precedents based on the principle of treating like
cases alike was established.
• Binding nature of previous decisions on a subsequent similar case is
of modern origin came into existence during British period.
3. Legislations:
• Legislations are Acts of Parliament which have been playing a profound
role in the formation of Hindu law.
• After India achieved Independence, some important aspects of Hindu
Law have been codified.
• Few examples of important statutes are The Hindu Marriage Act, 1955,
The Hindu Adoption & Maintenance Act, 1956, The Hindu Minority &
guardianship Act, 1956, etc.
• After codification, any point with by the codified law is final. The
enactment overrides all prior law, whether based on custom or otherwise
unless an express saving is provided for in the enactment itself.
• In the matters not specifically covered by the codified law, the old
textual law contains to have application.
 SCHOOLS OF HINDU LAW
• The codified Hindu law lays down uniform law for all Hindus.
• In the codified areas of Hindu law, there is no scope for existence of schools.
• The schools have relevance only in respect of uncodified areas of Hindu law.
• Schools of Hindu law came into being when different commentaries
appeared to interpret ‘Smritis’ with reference to different local customs in
different parts of India.
• Hence, schools of Hindu law emerged with the emergence of the era of
Commentaries & Digests.
• The commentator put his own opinion on the ancient texts and his authority
having been received in one and rejected in another part of India.
• Schools with conflicting doctrine arose.
• Therefore, schools means rules & principles of Hindu Law which are
divided into opinion.
• It is not codified.
• There are two schools of Hindu Law:
I. The Mitakshara School
II. The Dayabhaga School
I. The Mitakshara School:
• Mitakshara School prevails throughout India except in Bengal and
Assam.
• This school was called after the work entitled Mitakshara written by
Vijnaneswara as a commentary on the Smriti of Yajnavalkya.
• The Mitakshara is not merely a running commentary on the
Yajnavalkya Smriti but it is also a digest of practically all the leading
Smritis and deals with all titles of Hindu law.
• This school also has authority even in Bengal & Assam on all those
matters on which Dayabhaga is silent.
• Mitakshara School may be sub-divided into five schools:
a. Benares School
b. Mithila School
c. Maharashtra or Bombay School
d. Dravida or Madras School
e. Punjab School
a. Benares School:
• This schools prevails in whole of North India including Orissa.
• This school recognizes the following as authoritative in addition to
Mitakshara-
a. Viramitrodaya- The author of this digest is Mitra Misra, who
composed it between 1610-1640 under the patronage of King
Virasimhadeva. In Western India Viramitrodaya is received as an
authority.
b. Nirnaya Sindhu- This work is received as an authority not only in
Western India but also in the Benaras school.
b. Mithila School:
• This schools prevails in Tirhoot & North Bihar.
• Following are the commentaries treated as authoritative in this
school-
1. Mitakshara
2.Vivada Ratnakar
3. Vivada Chintamani
4. Smriti Sara
5. Madana Parijatha
c. Maharashtra or Bombay school of Hindu law:
• This school prevails in almost all parts of Bombay including
Gujarath, Kanara and the parts where the Marathi language is spoken
as the local language.
• The following are works treated as authoritative in this school:
a. Mitakshara
b. Vyavhara Mayukha
c. Viramitrodaya
d. Nirnaya Sindhu
e. Parasara-Madhavija
f. Vivada Tandava
d. Dravida or Madras school:
• The whole of the Madras state is governed by the Madras school of Hindu law.
• Following are the works treated as authoritative in this school-
a. Smriti Chandrika
b. Parasara Madhavija
c. Saraswati Vilasa
d. Viramitrodaya
e. Vyavahara Nirnaya
f. Dattaka Chandrika
g. Daya Vibhaga
h. Vaijayanti
i. Madhabi
j. Nirnaya Sindhu
k. Narada Rajya
l. Vivada- Tandava
m. Mitakshara
e. Punjab School:
• It prevails in the part of the country called as East Punjab.
• This school is chiefly governed by customs.
• Following are the works treated as authoritative in this school-
a. Mitakshara
b. Viramitrodaya
c. Punjab Customs
II. Dayabhaga School:
• This school prevails in Bengal & Assam.
• This school takes it name after the work entitled the Dayabhaga
written by Jimutavahana.
• Dayabhaga is the commentaries on leading Smritis & deals only with
partition & inheritance.
• The following are the works treated as authoritative:
a. Dayabhaga
b. Dayatatva
c. Daya- Sangraha
d. Viramitrodaya
e. Dattaka- Chandrika
 Difference between Mitakshara &
Dayabhaga School
 As regards joint property:
1. Under Mitakshara, the right to property of the Coparcener arises by
birth, hence the son is a co-owner with the father in ancestral
property, whereas under Dayabhaga, the right to property arises
after the death of the last owner. Hence, the son has no right to
ancestral property during father’s life time.
2. Under Mitakshara, the father has the restricted power of alienation
of ancestral property. Whereas, under Dayabhaga, the father has the
absolute power of alienation of ancestral property.
3. Under the Mitakshara, the son can ask for partition of the joint
family property even against the father, whereas under the Dayabhaga
the son cannot demand partition against the father.
4. The interest of a member of joint family under the Mitakshara
would, on his death pass to other members by survivorship. Whereas
under the Dayabhaga, the interest of a member would, on his death,
pass by inheritance to his heirs namely widow, son and daughters.
5. Under the Mitakshara, members of joint family cannot dispose of
their shares while undivided. Whereas under the Dayabhaga any
member of joint family may sell or give away his share even when
undivided.
 As regards inheritance:
1. Under the Mitakshara, inheritance is governed by the rule of
Consanguity, i.e., blood relationship. Whereas under the Dayabhaga
inheritance is governed by the rule of religious efficacy. i.e., offering
of Pindas.
2. Under the Mitakshara, cognates are postponed to agnates. But
under the Dayabhaga some cognates like sister’s sons are preferred
to many agnates.
3. As regards the recognition of the doctrine of factum valet,
Mitakshara extended its recognition to a very limited extent. But
Dayabhaga has extended its full recognition to it.
 Doctrine of Factum Valet
• The corresponding maxim in Roman civil law for this is “factum valet
quad fieri non debuit”. That is, what ought not to be done becomes valid
when done”.
• This doctrine was applied by British Courts in India.
• This doctrine declares that a fact cannot be altered by a hundred texts of
law.
• If a fact is accomplished or an act is done, the fact will nevertheless
stand and the act done will be deemed to be legal and binding.
• This doctrine was originally enunciated by the author of the Dayabhaga
school and was recognized by the followers of Mitakshara school.
• The texts are of two types: Directory and mandatory.
• This doctrine applies only to directory texts and not to mandatory
texts.
• That is, if an act is done in contravention of a mandatory text, the
application of the doctrine cannot cure it.
• For eg: non- observance of essential ceremonies during a marriage
can not be cured by application of this doctrine.