Nature, origin and sources of Hindu law

Nature, origin and sources of Hindu law
Hindu law has a very old origin. It is the result of the long penance and meditation of archaic peers and sages. It has been agreed by JD Mayne that Hindu law has the oldest pedigree of any known system of jurisprudence in the world. 
 
According to Hindu law, the law is identified with dharma and is supposed to have its origin in the god itself. The king and his subjects are equal in the eyes of law. The ultimate aim of life, as per Hindu law is to attain salvation ( moksha ). As we all know the human body is mortal but the soul is immortal. when a man dies his soul acquires a new form, and this cycle continues until that very man attains moksha from the world.
There are four goals of human life, i.e., Artha, Dharma, kama, and moksha. out of these dharma stands foremost.
 

What is Hindu Law?

According to Hindu law, the law is an enforceable part of dharma. it has been believed that the law does not emanate from the sovereign. He (king) himself is not exempt from the law. He has to perform his duties as mentioned in the Smritis. The term dharma includes all kinds of rules whether religious, legal, physical, metaphysical.
Dharma is what is followed by learned class, as per Vedas, and what is approved by those who are free from hatred and inordinate affections.
According to JD MAYNE, Hindu law is the law of smiritis as expounded in Sanskrit commentaries and digests, that is modified by customs, and is administered by courts.
 
HINDU LAW IS NOT LEX LOCI 
The Hindu law is not lex loci ( not a territorial )  but a personal law. It means every Hindu, in whatever country, is governed by Hindu law, not by territorial laws.
 

Origin of Hindu law

Basically , there are 2 theories that deal with the origin of the world’s oldest law 
  1. Divine theory 
  2. Western or European theory
 

Divine Theory

According to this theory, Hindu law has its origin from the divine sources. It is supposed to have originated from the Vedas that themselves are the revelation from the almighty. The one who disobeys law would incur the displeasure of God and has to suffer in the next world.
 

European or western theory 

According to western or European jurists, Hindu law is based upon immemorial customs and usages that exist prior to the rise of Brahmanism.
 It has been believed that after Aryan’s annexation of India, certain immemorial customs and usages that were either same or not wholly different from the Aryan ones were accepted by them. they only rejected those that are incapable of being assimilated  Ex –  polyandry, incestuous marriage etc. subsequently Brahmanism modified current customs by introducing a religious element into legal conceptions.
 
Both the views were rejected by prof Mayne. He was of the opinion that the smritis and commentaries and digests thus formed authoritative sources of law. they were enforced by the kings in the administration of justices.  The rules laid down in the sources were by and large of practical significance. Since the commentaries were written under the patronage of the rulers, their authority was vehemently acknowledged and they further became the primary sources of law. 
 

Sources of Hindu Law

According to MANU,  there are four sources of Hindu law namely, Smriti, Vedas, Sadacharya ( approved customs and usages) and what is agreeable to one’s conscience 
 
The main sources of Hindu law are as follows – 
  1. Shrutis
  2. Smritis
  3. Commentaries and digest
  4. Judicial pronouncements
  5. Enactments
  6. Justice, equity and good conscience
  7. customs
 

The Shrutis

The name Shruti signifies ‘what is heard’ from above and is meant with Vedas. It is supposed to contain the very words of the deity, revealed to have inspired the sages. In theory, the shrutis are the paramount sources of Hindu law but do not have practical as well as legal significance.
The Shruti consists of four Vedas and Upanishads primarily dealing with religious rites and the means of attaining true knowledge and moksha. 
The Vedas are ‘ Rig, Yajur, Sama, Atharva’
The Vedangas or appendices to the Vedas came into existence in the post-Vedic period. These are 6 in number 
  1. The Sikha 
  2. The Kalpa
  3. The Vyakarana 
  4. The Chhandas
  5. The Jyotish 
  6. The Nirukta
The Upanishads are designated as the Vedanta or the concluding part of the Vedas.
 

The Smritis

Smritis means ‘what was remembered’ and is of human origin and is believed to be the recollections of rishis handed down to us, thereby constituting the principle sources of Hindu law. It contains precepts whose authority is beyond dispute but whose meaning is open to various interpretations and has to be determined by the ordinary process of reason. 
Smritis were  classified into two types 
  1. Primary
  2. secondary
Primary ones were again classified into two types 
1 ) Dharmasutras 
2) Dharmashastras
 
The contents of Smritis are of two kinds 
  1. In prose style 
  2. In poetry style
 
Prominent writers in prose style – Gautama, Baudhayana, Vashishtha, Vishnu and Harita
 
Prominent writers in poetry style – Manu, Yajnavalkya, Vishnu, Yama, Daksh, Gautama, Satpat, Vashishtha etc.
 
Out of them, Manu holds the first place because he has expressed in his code the whole sense of Vedas n and there is no code that contradicts him.
Next, after Manu is, Yajnavalkya. His work is based on Manu. 
 
Parashara too occupied a significant role in ancient Smiriti writers. He claims to be the sole writer for the kaliyuga.
 

Commentaries and Digests

Because of the obscurity, incompleteness, and not infrequent conflicts in the rules of the Smritis and the desirability of injunctions of Smritis in a manner so as to suit prevalent customs and usages, there arose a need to reconcile them on points of difference. The commentaries and digests were also the records of the traditional customs recorded in the Smritis as well as new customs claiming for and found worthy of recognition.
 
The period of commentaries and digests was between 700 to 1700 AD. The last commentary was ‘Vaijayanti ‘written by Nanda pandit. It is related to Vishnu dharma sutra.
 
The commentators introduced few changes in order to bring into harmony with usages followed by the people governed by the law. In case Atmarao vs Bajirao[1], the court held that in case of conflict between the ancient text and commentaries, the opinion of the latter is accepted 
 
Some principle commentaries are –
 
  1. Dayabhaga by jimutavahana
  2. Mitakshara by vigneshwara 
  3. Viramitrodaya by mitra misra
  4. Vivada chinatamoni by vachaspati misra 
  5. Vivada ratnakara by chandeshwara
  6. Dayatattwa by raghunandana
  7. daya kramasanghra by sri krishna tarkalankar
  8. Smriti chandrika by devan bhatta
  9. Parashara Madhaviya by Madhvacharya 
  10. Vyahara Mayukh by Nikanta Bhatt
 
Out of all Mitakshara and Dayabhaga occupies the highest position as the most authoritative source of law.
 

Judicial Pronouncements

It cannot be denied that the early English judges with the help of pandits had brought to bear their own notions and thus influenced the development of Hindu law. Their ignorance of Sanskrit might have the effect of imparting rigidity to what has been a very pliable legal institution but in many cases for the sake of justice, logic the effects of original texts had been either altered by them in their judicial pronouncements. These decisions constitute an important source of law.
The large body of law pertaining to adoption, a pious duty of the son to pay the father’s debt to the extent of actual ancestors assets in hand the extension of such duty during his lifetime, and the curtailment of women’s right are some of the numerous instances where the in administering the Hindu law either altered or modified it.
 
It cannot be denied that on the one hand, the pronouncements imported English ideas to the Hindu perception of law, while on the other hand, it has restricted the normal growth of the law
 

Enactments

Enactments are an important source of Hindu law. Some of them tried to reform the law while others superseded it. Prior to the British era, the laws related to Hindus were scattered . to make uniform legislation for the matters governing Hindus, the English made an effort to codify them.
 
Here are some of the important laws-
  1. The cast disability removal act, 1850
  2. The Hindu widows remarriage act 1856
  3. Special marriage act, 1872 
  4. The transfer of property act 1882
  5. The Indian succession act
  6. The child marriage restraint act 1929 ( Sharda act)
  7. Special marriage act 1954
  8. Hindu marriage act 1955
  9. Hindu succession act 1956
  10. Prohibition of child marriage act 2006
  11. Indian contract act 1872
  12. Indian evidence act 1872 
  13. Indian penal code 1860
 

Equity, Justice and Good Conscience

Equity as a branch of legal study means, certain principles, emerging in the course of administration of justice, where on account of the inadequacy of law, the judges evolve certain rules on the basis of justice, fairness and propriety. 
In India, the concept of equity can be traced back to Hindu period where judges explained the old laws and gave new rules of interpretation.
According to Yajnavalkya, if there is a conflict between two Smititis, Equity should supersede the law.
In Gurunath vs kamlabai[2], the apex court observed that in absence of any rule of Hindu law, the courts have the authority to decide on the grounds of justice, equity and good conscience unless in doing so decisions would be repugnant or inconsistent with any theory of Hindu law.
 

Customs

Customs is regarded as the parent source of all personal laws in the world. It is a rule that a particular family, class, community, possess due to prolonged use and has the effect of law. it should be noted that customs have the effect of modifying personal laws but it cannot override statutory laws.
 
In Deivanai vs Chidambaram[3], it was held that customs have the force of law, must be archaic, reasonable, and certain.
 
According to section 3 (a) of the Hindu marriage act 1955, customs and usages signify any rule that has been continuously and uniformly observed in the fore of law among the Hindus in any local area, tribe, community, group or family.
 

Kinds of Customs

  1. Local customs
  2. Family customs
  3. Class customs

Essentials of Customs

In order that a custom to be valid it must be – 
  1. Archaic
  2. Invariable and continuous
  3. Established by clear and unambiguous evidence
  4. Reasonable
  5. Not opposed to public policy or morality
  6. Must not be forbidden by any provision of law
 

Conclusion

As we discussed above, the law as per Hindu law is the enforceable part of dharma. Both the kings and its subjects are equal in the eyes of law.
As far as the origin of the law is concerned, the conventional theories are not exhaustive, but the views offered by Mayne seems to be authentic and the primary source of law.
As far as sources are concerned, the ancient texts, Upanishads, commentaries, legislation, judicial decisions, and customs are the reliable and authentic sources of law. 

REFERENCES

1.62 IA 139
2.AIR 1954 Mad 657.
3.AIR 1955 SC 206
4.Hindu law, RK Agarwal, central law agency, 26 edition 2019
BY- Kartikey Pachauri
Aligarh Muslim University

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