Sources of Hindu Law | Family Law - CLAT PG PDF Download

The phrase "source of law" has several connotations.

• It may be the authority which issues rules of conduct which are recognized by Courts as binding.
• In this context, "source of law" means "the maker of law."
• It may mean the social conditions which inspire the making of law for the governance of the conditions.
• In this context, it means "because of lawee."
• It may also mean in its literal sense the material from which the rules and laws are known.
• In this sense, the expression means the "evidence of lawe."
• It is in this sense that the expression "source of law" is accepted in Jurisprudence.

Sources of Hindu Law can be divided into two parts - Ancient and Modern.

Ancient Sources 

1. Shruti 

• Shruti literally means "that which has been heard" and is derived from the root "shru," meaning 'to hear.'
• In theory, Shruti is considered the primary and most important source of Hindu law, believed to be the language of divine revelation through sages.
• The synonym for Shruti is "Veda," derived from the root "vid," meaning 'to know.' Vedas are considered the repository of all knowledge.
• There are four Vedas:
  • Rig Veda:  Contains hymns in Sanskrit to be recited by the chief priest.
  • Yajurva Veda:  Contains formulas to be recited by the officiating priest.
  • Sama Veda:  Contains verses to be chanted by seers.
  • Atharva Veda:  Contains spells, incantations, stories, predictions, charms, and hymns.
• Each Veda has three parts:
  • Sanhita:  Consists mainly of hymns.
  • Brahmin:  Describes duties and means of performing them.
  • Upanishad:  Contains the essence of these duties.
• Shrutis include the Vedas and their components.

2. Smritis 

• Smriti, derived from "smri," meaning 'to remember,' contains portions of Shrutis that sages forgot and wrote in their own language.
• There are two kinds of Smritis:  Dharma Sutras  and  Dharma Shastras  .
•  Dharma Sutras  are written in prose, while  Dharma Shastras  are composed in poetry.
• Notable Smriti writers include Manu, Atri, Vishnu, Yajnavalkya, and others.
• Rules in Smritis are divided into three categories:
  • Achar:  Relating to morality.
  • Vyavahar:  Procedural and substantive rules for dispute settlement.
  • Prayaschit:  Penal provisions for wrongdoings.

3. Digests and Commentaries 

• After Shrutis, the era of commentaries and digests emerged, covering a period from the 7th century to 1800 A.D.
• Commentaries (Tika or Bhashya) were written on Smritis, while later works were digests synthesizing various Smritis.
• Different schools of Hindu law evolved due to these commentaries.
•  Dayabhaga  and  Mitakshara  are the two major schools of Hindu law.
•  Dayabhaga  is based on Jimutvahana's commentaries, while  Mitakshara  is based on Vijnaneswar's commentaries.

4. Custom 

• Custom, or 'achara,' is regarded as a significant source of Hindu law.
• Custom signifies a rule that has obtained the force of law through long usage in a particular family, class, or district.
• Types of custom include:
  •  Local custom:  Recognized by courts in a specific region.
  •  Class custom:  Acted upon by a particular class.
  •  Family custom:  Binding upon family members.
• For example, a family custom may dictate that the eldest male member inherits the estate.
• In the case of  Deivanai Achi v. Chidambaram (1954)  , it was held that for a custom to be legally binding, it must be continuous, clear, and not oppose public policy.

Modern Sources of Hindu Law

• In rare cases where a court faces a dispute that cannot be resolved using existing legal rules, it relies on fundamental values of fairness and propriety to make a decision.
• This approach is known as  principles of justice, equity, and good conscience  , similar to the concept of  Natural Law  .
• Since the 18th century in India, this principle has been recognized as a source of law, especially when no specific rule applies.

Legislations 

• Legislations, or Acts of Parliament, play a crucial role in shaping Hindu law.
• After India gained independence, several important aspects of Hindu law were codified through legislation.
• Examples of significant statutes include:
• The Hindu Marriage Act, 1955 
• The Hindu Adoptions and Maintenance Act, 1956 
• The Hindu Succession Act, 1956 
• The Hindu Minority and Guardianship Act, 1956 
• Once codified, the laws established by these statutes are final and take precedence over prior laws, whether based on custom or other sources, unless the statute itself provides an exception.
• In areas not specifically addressed by codified law, older textual laws still apply.

Precedents 

• With the establishment of British rule in India, a hierarchy of courts was created, and the doctrine of precedent emerged.
• This doctrine is based on the principle of treating similar cases alike.
• Today, decisions made by the  Privy Council  are binding on all lower courts in India.
• However, the  Supreme Court  has the authority to modify or alter these decisions, and its own rulings are binding on all courts, including itself.