Sources Of Hindu Law

Introduction• Manu Smriti• Sources of DHARMA - Vedas, Smritis, Sadacharas, Good Conscience• Yajnyavalkya says - “Sruthi,Smriti, Sadachara, Swasyacha Priyamatmanam Samyak sankalpajah kamo dharmamulam edam smrutham.”• Main sources of Hindu law

1. Srutis Rig Veda - Laws of Sacrifices. Yajurveda - Rituals and endowed with magic powers. Sam Veda - Prayers composed of mantras intended to be at sacrifices.

Atharvana Veda - Magic Charms.

Post Vedic Period : Vedangas : Appendices to the Vedas came into existence a. Siksha, b. Kalpa- Dealing with rituals, c. Vyakarana (Grammar), d. Chandas or Prosody e. Jyotish or Astronomy, f. Niruktha or Lexicon

Upanishads Upanishads are nothing but vedanta that is

concluding portion of Vedas and embody the highest principles of Hindu religion and philosophy.

2. Smritis ( what was remembered)3. Commentaries and Digests4. Judicial Decisions - Doctine of Pious Obligation - Curtailment of women’s rights5. Legislations - Caste Disabilities Removal Act 1850 - Hindu Widow’s Remarriage Act, 1856 - Hindu Gains of Learning Act 19306. Justice, Equity and good conscience.

7. Custom were largely based upon customary law Custom is transcendant law Smritis and digests were largely based upon customary law On matters not covered by Smritis and Commentaries custom

supplements the law Even where a custom exists in derogation of the law laid down

in the Smritis, it is none the less a source of law according to Hindus

Smritis repeatedly insist that customs must be enforced. They either override or supplement Smriti rules

Manu Says “it is the duty of the King to decide all cases which fall under the 18 titles of VYAVAHARA or civil law according to the principles drawn from local usages and from institutes of sacred law”

Narada says “ custom decides everything overrules the sacred law.”

Yajnavalkya says “one should not practice that which though ordained by the Smriti, is

condemned by the people”. Types of customLocal Custom Class custom; they are of caste or sectFamily customs: marriage customs,Zamindaries, Rajahs Familiy customs

Essentials of Custom

Ancient , With regards to this feature is to establish that by common consent they have been accepted as law

governing a particular family, caste or locality Continuous , a custom however old it may be, in the absence of clear proof of its continuous observance without any

variation. It would not obtain legal existence Clear and unambi guous it must be established by clear evidence, because it is only by the force of such evidence that the courts

can be assumed of it’s existence ,. Recognition to it’s legal effect can be given only when its unambiguity is proved

Reasonable , Not opposed to morality or public policy Custom should be the usage of virtuous should not be opposed to Dharma shastras Where in a case before Privy Council a custom was setup as on the West Coast of India, whereby the

trustees of a religious institution were allowed to sell their trust held to be invalid on the ground as being opposed to public policy and

Not forbidden by any express provision of law. it is not only of statutory law but also of the mandatory texts of Dharmasastras

Continuation

• Burden of proof• Burden of proof lies on the person who alleges• Judicially recognised custom needs no proof• Munna lal Vs. Rajkumar AIR 1972 SC.1493• S.c obsrved that:• When a custom is repeatedly brought to the notice of

the courts that custom may be held to be introduced in to the law without the necessity of proof

• A custom cannot be created by an agreement