Sources and Schools of Hindu Law | Civil Law for Judiciary Exams PDF Download

Introduction

• Hindu law is one of the oldest and most extensive legal systems globally, dating back around 6000 years.
• It was created not to punish wrongdoing but to guide people towards spiritual liberation.
• Initially, Hindu law aimed to fulfill the needs of the people and promote their well-being.
• Hindu Law is believed to be of divine origin, revealed through the Vedas to humanity.
• The principles outlined in the Vedas were further developed by sages and religious leaders, shaping the way of life on the Indian subcontinent.

Main Acts of Hindu Law

• Over time, ancient laws evolved into modern statutes such as:
  • The Hindu Marriage Act 1955
  • The Hindu Adoption and Maintenance Act 1956
  • The Hindu Minority and Guardianship Act 1956
  • The Hindu Succession Act 1956

Sources of Hindu Law

• Ancient Sources of Hindu Law
• Modern Sources of Hindu Law

Ancient Sources of Hindu Law

The ancient sources of Hindu Law can be categorized into four main types:

• Shrutis
• Smritis
• Digests and commentaries
• Customs

Shrutis, meaning "what is heard," are considered the primary source of Hindu Law. They are believed to be the language of divine revelation through the sages. The Vedas, including Rig Veda, Yajur Veda, Sama Veda, and Atharva Veda, are examples of Shrutis that deal with various aspects of human life.

Smritis, derived from the root "to remember," contain portions of the Shrutis that sages may have forgotten in their original form. They are considered secondary sources and are based on human interpretation of the original texts. Major Smritis include Manu Smriti, Yagnavalkya Smriti, and Narada Smriti.

Shrutis: The Divine Revelation

• Vedas are repositories of knowledge.
• They cover topics like marriage, succession, and adoption.
• Comprise Rig Veda, Yajur Veda, Sama Veda, and Atharva Veda.

Smritis: Human Interpretations

• Derived from memory of reading Shrutis.
• Manu Smriti focuses on Dharma obligations.
• Yagnavalkya Smriti is known for its homogeneity.

Narada Smriti

• The Narada Smriti, attributed to Narada in 400-500 BC, stands out for its advanced vocabulary and sophistication compared to contemporary texts.
• It is structured around the eighteen titles of law, a framework shared with the Manu Smriti albeit with some naming differences.
• The text commences with an overview of law and court systems before delving into each of the eighteen titles across individual chapters.

Digests and Commentaries

• Over a span of a thousand years starting from 700 AD, commentaries and digests evolved.
• Initially, commentaries predominantly focused on Smritis, later transitioning into digest form, consolidating and resolving contradictions across various Smritis.
• An exemplary commentary is Nanda Pandit's 17th-century work 'Vijayanti' on Vishnu-dharmasutra.

Custom

• Custom, deemed the fourth source of Hindu Law, has been integral since ancient times, with 'aachara' representing the highest form of 'Dharma.'
• Defined as a rule established through prolonged usage within a family, class, or region, custom is considered obligatory conduct.
• Custom, emerging from societal practice, ranks closely after Shrutis and Smritis, trumping written laws in authority.
• Valid customs exhibit specific characteristics, as demonstrated in the Laxmibai V. Bhagwanthbuva case, where the Supreme Court of India validated customs deviating from general law.

Modern Sources of Hindu Law

1. Justice, Equity, and Good Conscience

• The courts are obligated to settle disputes even in the absence of specific laws, relying on the principles of fairness and justice.
• These principles, also known as Natural Law, guide judicial decisions when there is no explicit statute.
• For example, in the case of Gurmukh V. Kamla Bai (1951), the court emphasized deciding cases based on these principles.

2. Legislation as a Source

• Legislation plays a crucial role in shaping modern Hindu law, with significant acts passed during the British period.
• Acts like The Hindu Marriage Act of 1955 and The Hindu Succession Act of 1956 have been instrumental in codifying Hindu personal laws.
• After codification, the law on any point covered becomes definitive.

Precedent as a Source of Law

• Precedent serves as a foundation of law, where through judicial interpretation, existing doctrines, principles, and rules of law can be adapted or entirely new ones introduced in Hindu law.
• Authority for these principles, doctrines, and rules is derived from precedent, which guides future legal decisions.

Case Critique: Krishna Singh V. Mathura Ahir (1980) AIR 707

• In this notable case, the Allahabad High Court rightly determined that the discriminatory ban on Sudras as per the Smritis violates their fundamental rights.
• The case highlights the evolving nature of legal interpretation and the role of courts in upholding fundamental rights.

Schools of Thought in Hindu Law

• Schools of Thought in Hindu Law represent diverse and conflicting opinions on legal principles and rules within the Hindu legal system.
• The two primary schools are the Mitakshara School and the Dayabhaga School, each with its unique perspectives and interpretations.

Mitakshara School

• The Mitakshara School, named after Vijnaneshwara's commentary, is predominant across India, except in Assam and Bengal.
• Composed around 1100-1200 AD, it acts as a comprehensive commentary on various Smritis, covering a wide array of topics in Hindu law.
• Emphasizing the Principle of Propinquity in inheritance, it focuses on blood relationships to determine legal succession.
• Sub-schools within Mitakshara include the Dravidian, Maharashtra, Banaras, and Mithila Schools, each with its specific interpretations and practices.

Indian Schools of Thought

Dravidian School of Thought (Madras School of Thought)

• In South India, known as the Madras School of Thought.
• Unique custom for widow adoption requiring consent of sapindas (blood relations) for validity.
• According to the Smriti Chandrika and Prasara Madhviya, a widow in this school can adopt a son with the kindred's assent in the absence of authority from the husband.

Maharashtra School of Thought (Bombay School of Thought)

• Located in Bombay, extending to Western India.
• Authorities: Vyavakara Mayukha and Nirnaya Sindhu.
• Comprehensive work on religious and civil laws.

Banaras School of Thought

• Spans the whole of Northern India except rural Punjab.
• Main authorities: Virmitrodaya and Nirnaya Sindhu.

Mithila School of Thought

• Operates in Tirhut and certain districts of Northern Bihar.
• Main authorities: Vivada Chintamani and Vivada Ratnakara.

Dayabhaga School

• Description: The Dayabhaga School, prevalent in Assam and Bengal, was composed during Jimutvahana's literary career between 1090-1130 A.D. It is a digest of all the codes and is centered on the principle of religious efficacy or spiritual benefit.
• Inheritance: According to this school, inheritance is based on the Doctrine of Oblations, where individuals conferring more spiritual benefit inherit property over those conferring less. Females in the family also have the right to inherit property.
• Property Rights: Sons do not inherently have birth rights to property in this school. In cases where a coparcener dies without issue, his widow has the right to succeed to his share and enforce a partition independently.
• Legal Sources: The Dayabhaga School draws from various legal sources, including ancient and modern texts. It is influenced by interpretations that prioritize spiritual benefit in matters of inheritance.

Examples:

• For instance, in a scenario where a son who has devoted his life to spiritual practices stands to inherit more property than a son solely focused on material pursuits.
• Similarly, a daughter who has dedicated herself to religious activities may have equal rights to inheritance as her male siblings under the principles of the Dayabhaga School.