0c812Sources of Hindu Law

8/3/2019 0c812Sources of Hindu Law

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Sources of Hindu LawSources of Hindu Law

Before 1955 Hindu Law was mostly Uncodified.Before 1955 Hindu Law was mostly Uncodified.

Hindu Law is set of rules contained in severalHindu Law is set of rules contained in severalsanskrit books.sanskrit books.

But today legislation has considerably curtailedBut today legislation has considerably curtailedthe extent of application of Uncodified law.the extent of application of Uncodified law.

Today a very large portion of Hindu law hasToday a very large portion of Hindu law hasbeen codified.been codified.



Sources of Hindu LawSources of Hindu Law

[1]Ancient sources[1]Ancient sources

(a) Shruti(a) Shruti--What was heard What was heard

It is believed to contain very words of God.It is believed to contain very words of God.

It is divine utterance to be found inIt is divine utterance to be found in

four vedas i.e Rig Veda, Yajur Veda, Sama Vedafour vedas i.e Rig Veda, Yajur Veda, Sama Vedaand Atharva Vedaand Atharva Veda

Six Vedangas [appendage to the vedas]Six Vedangas [appendage to the vedas]

Eighteen UpanishadasEighteen Upanishadas

These are mostly religious in character.These are mostly religious in character.



The sources of Hindu lawThe sources of Hindu law

(b) Smriti(b) Smriti-- What was remembered What was remembered--Like ShrutiLike Shruti,were handed down by the sages [Rishis] from,were handed down by the sages [Rishis] fromgeneration to generationgeneration to generation

Manusmriti.[smriti is also known as Code]Manusmriti.[smriti is also known as Code] Yajnavalkya smriti Yajnavalkya smriti

Narada smriti etcNarada smriti etc

* Law is a branch of dharma and its ancient * Law is a branch of dharma and its ancient

framework is the law of the smriti.framework is the law of the smriti. They deal with rules of morality and religion but They deal with rules of morality and religion but

smritis are more secular than shruti.smritis are more secular than shruti.



Sources of HLSources of HL

(c) Digests and Commentaries(c) Digests and Commentaries--severalseveralinterpretations have been put upon the smritisinterpretations have been put upon the smritisbecause of their contradictions.because of their contradictions.

NibandhasNibandhas--are nothing but interpretation put onare nothing but interpretation put onSmritis by various commentators.Smritis by various commentators.

InterpretationInterpretation--to bring it into harmony withto bring it into harmony with

current usages.current usages. Commentaries are now considered to be moreCommentaries are now considered to be more

authoritative than the original texts themselves.authoritative than the original texts themselves.



The sources of Hindu lawThe sources of Hindu law

(d) Customs(d) Customs--it modify and supplement the written lawsit modify and supplement the written laws It may be broadly divided intoIt may be broadly divided into local customlocal custom -- confined to a particular locality like district, town orconfined to a particular locality like district, town or

village and are binding on all the inhabitants of that locality.village and are binding on all the inhabitants of that locality. class customclass custom custom of caste or sect of community or followers of custom of caste or sect of community or followers of

particular profession like agriculture or tradeparticular profession like agriculture or trade

Family customFamily custom--confined to particular familyconfined to particular family S.3 of HMA 1955S.3 of HMA 1955--it signifies any rule which has obtained force of it signifies any rule which has obtained force of

law.law. Essentials of a valid customEssentials of a valid custom It must be ancient [need not be immemorial antiquity but a longIt must be ancient [need not be immemorial antiquity but a long

usage is absolutely necessary.usage is absolutely necessary. It must be certain and uniform.It must be certain and uniform.




It must be reasonable i.e in accordance with rules of equity, justiceIt must be reasonable i.e in accordance with rules of equity, justiceand good conscience.and good conscience.

It must be continuousIt must be continuous It must not be opposed to public policy.It must not be opposed to public policy. It must not be opposed to any law.It must not be opposed to any law. If applicable to a familyIf applicable to a family--it has not been discontinued.it has not been discontinued. Here courts refused to recognise customHere courts refused to recognise custom (i) caste custom authorising wife to abandon her husband and(i) caste custom authorising wife to abandon her husband and

marry again w/o his consent marry again w/o his consent (ii) husband dissolving his marriage w/o consent of wife by paying a(ii) husband dissolving his marriage w/o consent of wife by paying a

fixed sum of moneyfixed sum of money (iii) marriage with daughters daughter in south india(iii) marriage with daughters daughter in south india BOP that custom is derogatory to law is upon the person whoBOP that custom is derogatory to law is upon the person who

asserts it .asserts it .



The sources of hindu lawThe sources of hindu law

It is generally saidIt is generally said--Clear proof of usage will outweigh[beClear proof of usage will outweigh[beheavier than] the written text of the lawheavier than] the written text of the law

e.g legal prohibition is no one can marry own sisterse.g legal prohibition is no one can marry own sistersdaughter but in south India permitted [caste/communitydaughter but in south India permitted [caste/communitycustom wherever they may be]custom wherever they may be]

If custom is opposed to sacred lawIf custom is opposed to sacred law--it may prevail but it may prevail but against statutory lawagainst statutory law it can not be given effect except it can not be given effect except in the matter of in the matter of

Prohibition on marriage on ground of blood relationshipProhibition on marriage on ground of blood relationshipor affinityor affinity

Ceremonies of marriageCeremonies of marriage

divorcedivorce




[2] Modern sources[2] Modern sources(a) Equity, Justice and Good conscience(a) Equity, Justice and Good conscience--what would bewhat would be

most fair and equitable in the opinion of the judge would be done inmost fair and equitable in the opinion of the judge would be done ina particular case. It is based on equity.a particular case. It is based on equity.

*in the absence of any specific law in the smriti or in the event of a*in the absence of any specific law in the smriti or in the event of a

conflict between the smriti, this is applied.conflict between the smriti, this is applied.* Gurunath v Kamlabai AIR 1955* Gurunath v Kamlabai AIR 1955-- SC held above.SC held above.

(b) Precedent (b) Precedent--also known as judicial decisionsalso known as judicial decisions--two different viewstwo different views*one view*one view--judges are makers of law while other view judges are makers of law while other view--judges judges

do not make the law but declare the law.do not make the law but declare the law.

*Strictly speaking judicial precedent can not be said to be*Strictly speaking judicial precedent can not be said to besource of law but it is not always true.source of law but it is not always true.




*The decision of privy council [not now]*The decision of privy council [not now]and supreme court are binding upon alland supreme court are binding upon allcourts. decision of one high Is bindingcourts. decision of one high Is binding

upon subordinate court but not bindingupon subordinate court but not bindingupon other high court .upon other high court .

(c) Legislations(c) Legislations--severalseveral

enactments which declare, abrogate orenactments which declare, abrogate ormodify the ancient rules of Hindu Lawmodify the ancient rules of Hindu Lawform part of modern sources.form part of modern sources.




Some enactments areSome enactments are The caste disabilities removal Act,1850The caste disabilities removal Act,1850 The Hindu Widows Remarriage Act 1856The Hindu Widows Remarriage Act 1856 The Hindu Inheritance (Removal of disabilities) Act, 1928The Hindu Inheritance (Removal of disabilities) Act, 1928

The Hindu law of inheritance (Amendment) Act,1929The Hindu law of inheritance (Amendment) Act,19

29

The Child Marriage (Restraint) Act,1929The Child Marriage (Restraint) Act,1929 The Hindu Gains of Learning Act, 1930The Hindu Gains of Learning Act, 1930 The Hindu womens Right to property Act,1937The Hindu womens Right to property Act,1937 Special Marriage Act, 1954Special Marriage Act, 1954 The Hindu Marriage Act, 1955The Hindu Marriage Act, 1955

The Hindu succession Act,1956The Hindu succession Act,1956 The Hindu Minority and Guardianship Act,1956The Hindu Minority and Guardianship Act,1956 The Hindu Adoption and Maintenance Act, 1956The Hindu Adoption and Maintenance Act, 1956

Documents

0c812Sources of Hindu Law