Updated: Jun 1
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About the Author:
Prof.(Dr.) Priya Sepaha
Director, Law Colloquy,
Author, Trainer, blogger, Youtuber
Hindu Law is a divine law. It is believed that God has preached the law to the common man through Vedas. Different sages and ascetics life have expounded and refined the unique ideas of life clarified in the Vedas.
Sources of Hindu Law can be divided into two parts -
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 means "what is heard". The word is derived from the root “shru” which means ‘to hear’. In theory, it is the primary and paramount source of Hindu law and is believed to be the language of the divine revelation through the sages. It is believed that the rishis and munis had reached the height of spirituality where they were revealed the knowledge of Vedas. It is derived from the root “vid” meaning ‘to know’. The term Veda is based on the tradition that they are the repository of all knowledge. There are four types of Vedas:
The Brahmanas are like the appendices to the Vedas. Vedas primarily contain theories about sacrifices, rituals, and customs. Some people believe that Vedas contain no specific laws, while some believe that the laws have to be inferred from the complete text of the Vedas. Vedas do refer to certain rights and duties, forms of marriage, the requirement of a son, exclusion of women from inheritance and partition but these are not very well defined or specific laws.
Since Vedas had a divine origin, the society was governed as per the theories given in Vedas and they are considered to be the fundamental source of Hindu law. Shrutis basically describe the life of the Vedic people.
The Vedic period is assumed to be between 4000 to 1000 BC. During this time, several pre-Smriti sutras and Gathas were composed. However, not much is known about them today. It is believed that various rishis and munis incorporated local customs into Dharma and thus multiple "shakhas" came into existence.
The concept of karma came into existence during this time. A person will get rewarded as per his karma. He can attain salvation through "knowledge".
Smriti means "what is remembered". Smritis are a written memoir of the knowledge of the sages Many sages, from time to time, have written the concepts specified in Vedas. A systematic study and teaching of Vedas started with Smritis. After the Vedic period, the regulation of society was required. Thus, the study of Vedas and the incorporation of local culture and customs became important. It is believed that many Smritis were composed in this period and some were reduced into writing, however, not all are known. The smritis can be divided into two parts:
a. Dharma Sutras
The Dharma sutras were written from 800 to 200 BC. They were mostly written in prose form but also contain verses. They were considered as a training manual of sages for teaching students which contained the knowledge of Vedas with local customs.
They explain the duties of men in various relationships. They do not pretend to be anything other than the work of mortals based on the teachings of Vedas and the legal decisions given by those who were acquainted with Vedas and local customs.
They generally on the names of their authors and sometimes also indicate the shakhas to which they belong. Some of the most popular Dharma Sutras are:
i. Gautama - He belonged to Sam Veda school and deals exclusively with legal and religious matters. He talks about inheritance, partition, and stridhan.
ii. Baudhayan - He belonged to the Krishna Yajurved school and was probably from Andhra Pradesh. He talks about marriage, sonship, and inheritance. He also refers to various customs of his region such as marriage to maternal uncle's daughter.
iii. Apastamba - His sutra is most preserved. He also belonged to Krishna Yajurveda school from Andhra Pradesh. His language is very clear and forceful. He rejected prajapatya marriage.
iv. Vashistha - He was from North India and followed the Rigveda school. He recognized remarriage of virgin widows.
Dharmashastras were mostly in metrical verses and were based on Dharmasutras. However, they were a lot more systematic and clearer. They dealt with the subject matter in three parts:
i. Aachara - This includes the theories of religious observances,
ii. Vyavahar -This includes civil law.
iii. Prayaschitta- This deals with penance and expiation.
However, they were a lot more systematic and clearer. From the time of their composition, the works of the Dharmashastra have played a significant role in influencing Hindu culture and law. In fact, the shastras were still being cited in cases of legal contracts as late as the mid-19th century in some regions of India. Out of many dharmashastras, three are most important:
This is the earliest and most important of all. It the most authoritative of the books of the Hindu code (Dharma-shastra) in India. Manu-smriti is the popular name of the work, which is officially known as Manava-dharma-shastra. It is attributed to the legendary first man and lawgiver, Manu. The received text dates from circa 100 CE. It is not only defined the way of life in India but is also well known in Java, Bali, and Sumatra. Manusmriti compiles all the laws that were scattered in pre-Smriti, sutras and gathas.
It contains 12 chapters of stanzas, which total 2,694. It deals with cosmogony; the definition of the dharma; the sacraments (samskaras); initiation (upanayana) and the study of the Vedas (the sacred texts of Hinduism); marriage, hospitality, funeral rites, dietary restrictions, pollution, and means of purification; the conduct of women and wives; and the law of kings.
The Manu-smriti prescribes to Hindus their dharma i.e., that set of obligations incumbent on each as a member of one of the four social classes (varnas) and engaged in one of the four stages of life (ashramas).
The human lifespan was divided into four periods under the Ashrama system in Hinduism as discussed in Indian texts of the ancient and medieval eras. The four ashramas are:
Ø Brahmacharya (student),
Ø Grihastha (householder),
Ø Vanaprastha (retired) and
Ø Sannyasa (renunciate).
During this period the varna system became quite strong. The Hindu literature classified the society in principle into four varnas:
Ø Brahmins: priests, scholars, and teachers.
Ø Kshatriyas: rulers, warriors, and administrators.
Ø Vaishyas: agriculturalists and traders.
Ø Shudras: laborers and service providers.
The last leads to a consideration of matters of juridical interest, divided under 18 headings, after which the text returns to religious topics such as charity, rites of reparation, the doctrine of karma, the soul, and hell. The text makes no categorical distinction between religious law and practices and secular law. Its influence on all aspects of Hindu thought, particularly the justification of the caste system, has been profound.
2. Yajnavalkya Smriti
Yajnavalkya also gave a lot of importance to customs but holds the king to be below the law. He considers the law to be the king of kings and the king to be only an enforcer of the law. He did not deal much with religion and morality but mostly with civil law. It includes most of the points given in Manusmriti but also differs on many points such as the position of women and Sudras. He was more liberal than Manu. Vijnaneshwar's commentary 'Mitakshara' on this smruti, is the most important legal treatise followed almost everywhere in India except in West Bengal and Orissa.
Though written after Manusmruti, this is a very important smriti. Its language is very direct and clear. The text is the "best composed" and systematic specimen of this genre, with large sections on judicial process theories, one which had greater influence in medieval India's judiciary practice than Manusmriti. It later became influential in the studies of the legal process in ancient and medieval India, during colonial British India, with the first translation published in German in 1849. The text is notable for its differences in legal theories from Manusmriti, for being more liberal and humane, and for extensive discussions on evidence and judiciousness of legal documents.
3. Narada Smriti
Nāradasmṛti is an Indian literary tradition that serves as a collection of legal maxims relating to the topic of dharma. This text is purely juridical in character in that it focuses solely on procedural and substantive law. Known as the "juridical text par excellence," the Nāradasmṛti is the only Dharmaśāstra text to not cover areas such as righteous conduct and penance. Its focused nature has made the text highly valued by rulers and their governments, in the Indian subcontinent and southeast Asia, likely as an aid of carrying out their dharma of justly ruling the country.
3. Digest and Commentaries
Commentaries were composed in the period immediately after 200 AD. The work done to explain a particular smriti is called a commentary. Digests were mainly written after that and incorporated and explained material from all the smritis.
As discussed four commentaries were initially explained, manubhashya, manutika, and mitakshara and Daybhag but presently only two are applicable in India, i.e., Dayabhag that is applicable in the Bengal and Orissa area and Mitakshara which is applicable in rest of the part of India.
Mitakshara literally means 'New Word' and is a paramount source of law in all of India. It is also considered important in Bengal and Orissa where it relents only where it differs from dayabhaga. It is very exhaustive treaties of law and incorporates and irons out contradict existing in smritis.
The basic objective of these texts was to gather the scattered material available in preceding texts and present a unified view for the benefit of society. Thus, digests were very logical and to the point in their approach. Various digests have been composed from 700 to 1700 AD.
Most of the Hindu law is based on customs and practices followed by the people all across the country. Even smrtis have given importance to customs. They have held customs as transcendent law and have advised the Kings to give decisions based on customs after due religious consideration. Customs are of four types:
i. Local Customs - These are the customs that are followed in a given geographical area. In the case of Musammat Subhani vs Nawab on 17 August, 1940, Privy Council observed that a custom gets it to force due to the fact that due to its observation for a long time in a locality, it has obtained the force of law.
ii. Family Customs - These are the customs that are followed by a family for a long time. These are applicable to families where ever they live. They can be more easily abandoned that other customs. In the case of Soorendranath vs Heeramonie and Bikal vs Manjura, Privy Council observed that customs followed by a family have long been recognized as Hindu law.
iii. Caste and Community Customs - These are the customs that are followed by a particular caste or community. It is binding on the members of that community or caste. By far, this is one of the most important sources of laws. For example, most of the law in Punjab belongs to this type. Custom to marry the brother's widow among the Jats is also of this type.
iv. Guild Customs - These are the customs that are followed by traders.
i. Ancient: Ideally, a custom is valid if it has been followed for hundreds of years. There is no definition of ancientness, however, 40yrs has been determined to be an ancient enough. A custom cannot come into existence by agreement. It has to be existing from long before. Thus, a new custom cannot be recognized. Therefore, a new form of Hindu marriage was not recognized in Tamil Nadu.
In the case of Rajothi vs Selliah, a Self Respecter’s Cult started a movement under which traditional ceremonies were substituted with simple ceremonies for marriage that did not involve Shastric rites. HC held that in modern times, no one is free to create a law or custom since that is a function of the legislature.
ii. Continuous: It is important that the custom is being followed continuously and has not been abandoned. Thus, custom maybe 400 yrs old but once abandoned, it cannot be revived.
iii. Certain: The custom should be very clear in terms of what it entails. Any amount of vagueness will cause confusion and thus the custom will be invalid. The one alleging a custom must prove exactly what it is.
iv. Reasonable: There must be some reasonableness and fairness in the custom. Though what is reasonable depends on the current time and social values.
v. Not against morality: It should not be morally wrong or repugnant. For example, a custom to marry one's granddaughter has been held invalid. In the case of Chitty vs. Chitty 1894, a custom that permits divorce by mutual consent and by payment of expenses of marriage by one party to another was held to be not immoral. In the case of Gopikrishna vs. Mst Jagoo 1936, a custom that dissolves the marriage and permits a wife to remarry upon abandonment and desertion of the husband was held to be not immoral.
vi. Not against public policy: If a custom is against the general good of the society, it is held invalid. For example, the adoption of the girl child by nautch girls has been held invalid. In the case of Mathur vs Esa, a custom among dancing women permitting them to adopt one or more girls was held to be void because it was against public policy.
vii. Not against any law: If a custom is against any statutory law, it is invalid. Codification of Hindu law has abrogated most of the customs except the ones that are expressly saved. In the case of Prakash vs Parmeshwari, it was held that law means statutory law.
Usages and Customs
The term custom and usage is commonly used in commercial law, but "custom" and "usage" can be distinguished. A usage is a repetition of acts whereas custom is the law or general rule that arises from such repetition. A usage may exist without a custom, but custom cannot arise without a usage accompanying it or preceding it. Usage derives its authority from the assent of the parties to a transaction and is applicable only to consensual arrangements. A custom derives its authority from its adoption into the law and is binding regardless of any acts of assent by the parties. In modern law, however, the two principles are often merged into one by the courts.
Hindu law has been greatly influenced by the British rule. While it might seem that the British brought with them the modern concepts of equity and justice, these concepts existed even in Dharam Shastras albeit in a different form. Narada and Katyayana have mentioned the importance of dharma (righteousness) in delivering justice. However, we did not have a practice of recording the cases and judgments delivered. So it was not possible to apply stare decisis. This process started from the British rule.
The following are the modern sources of Hindu law:
i. Justice, Equity and Good Conscience
Equity means fairness in dealing. Modern judicial systems greatly rely on being impartial. True justice can only be delivered through equity and good conscience. In a situation where no rule is given, a sense of 'reasonableness' must prevail. According to Gautama, in such a situation, the decision should be given that is acceptable to at least ten people who are knowledgeable in Shastras. Yagyavalkya has said that where ever there are conflicting rules, the decision must be based on 'Nyaya'. This principle has been followed by the privy council while deciding cases. ii. Precedents
The doctrine of stare decisis started in India from the British rule. All cases are now recorded and new cases are decided based on existing case laws. Today, the judgment of SC is binding on all courts across India and the judgment of HC is binding on all courts in that state.
In modern society, this is the only way to bring in new laws. The parliament, in accordance with the needs society, constitutes new laws. For example, in Succession law after 2006, daughters are also having shares in the property of the father. Similarly in adoption also rights of women have been amended according to the need and demands of society.
 (1941) 43 BOMLR 432.
 the legal principle of determining points in litigation according to precedent.