Hindu Law – Nature & Sources
- What is Hindu Law?
- What are the Sources of Hindu Law?
Laws are the foundation for order in every nation and in every sphere of life. In this article our focal point will be on the Hindu Law obtainable in India.
We shall be examining the elementary aspects of Hindu Law in the following order:
- What is Hindu Law and Scope of its Application
- Nature of Hindu Law
- Sources of Hindu Law
Indian legal system is unique. The system of law in India takes two forms: The Territorial or General law & the Personal Law. While the Territorial Law makes general provisions for India, personal law, on the other hand, applies to persons who are members of a particular religion. Thus, the personal law makes provisions on subject matters which have not been covered in the territorial law. Hindu is a religion in India, hence, the existence of the Hindu Law. The renowned scholar, Henry Mayne noted that Hindu law is the oldest of any known system of jurisprudence, and till present, it shows no sign of decrepitude
In view of the above, it is pertinent to consider this law, its nature and its sources. This will be the focus of this article.
WHAT IS HINDU LAW AND SCOPE OF ITS APPLICATION
Sir Dinsah F. Mulla, in his work ‘Principles of Hindu Law’, made an effort to define Hindu Law. According to the learned author, “Wherever the laws of India admit operation of a personal law, the rights and obligations of a Hindu are determined by Hindu law, i.e. his traditional law, sometimes called the law of his religion, subject to the exception that any part of that law may be modified or abrogated by statute”.
From the definition above, it is obvious that Hindu law is a personal law and it is applicable to members of the Hindu religion. It can also be defined as the personal law regulating the social conditions of members of the Hindu religion. It regulates areas such as marriage, family matters, inheritance, and other social factors affecting the social well-being of members of this religion.
However, it is interesting to note that the law is not restricted only to members of the Hindu religion. Other communities or religious sect are governed by the Hindu Law. Such sects include:
- The Buddhists
- Santhals of Chhota Nagpur
NATURE OF HINDU LAW
It is believed that the etymological root of the word ‘Hindu’ was first derived from the Snaskrit word ‘Sindhu’, an Old Persian language. The word ‘Sindhu’ referred to a historic local designation for the Indus River in the North-Western part of the Indian subcontinent.
The Hindu Law is believed to have a divine origin from God-Almighty and not from the Legislature, statute or Bill. As such, it is not merely a legal law but a religious law.
Sources of Hindu Law-
The importance of understanding the source of a law is based on the fact that a rule, which is not traced to any source, is alien to the legal system. Such an alien rule cannot be law to the persons under the legal system.
Source of Law could be defined in various manners. It could mean “the maker of the law”, ‘cause of the Law’, ‘the material from which the laws are known’, ‘the evidence of law’, ‘the authority which issues the law’, ‘the conditions which inspires the formulation of law’, etc. In the context of jurisprudence, which is the context which applies to this article, we define source of law as ‘the evidence of law’.
According to Hindu Jurisprudence, the Veda, Smriti, and approved usage, as sources of Hindu Law are derived from matters which are agreeable to good conscience.
For the purpose of this article, and for ease of reference, we shall consider the sources of law under the following headings:
- Orthodox sources of Hindu Law
- Modern sources of Hindu Law
- Orthodox Sources of Hindu Law – The era of the Dharmashastras
This is further divided into the following
- Digests and Commentaries
The meaning of Sruti is ‘Vedas’. The word ‘Srutis’ is derived from the Sanskrit word ‘Srut’, whose English interpretation is ‘To Hear’.
According to the jurisprudence of this era, Hindu laws are words which were heard and these words ‘were the utterance of God – Almighty’. Thus, they came directly from God. The Rishis and Munis, who were a great people of learning, heard these words from God. These heard words are ‘the Vedas’, and there are:
- Four vedas
- Rig Ved (words containing hymns in Sanskrit. The hymns are to be recited by the chief priest)
- Yajurved (words containing formulas which the officiating priest is expected to recite)
- Samved (words containing verses which are to chanted by seers)
- Atharvaved (words containing spells, incantations, predictions, stories, apotropaic charms and speculative hymns)
Each of the Veda further contains three components which are:
- Hymns (‘Sanhita);
- Duties and means of performing the duties (Brahmin); and
- Essence of the duties (Upanishad)
- Six Vendagas
- Subordinate parts of vedas; and
- Eighteen Upanishadas
Srutis are considered as the fundamental or paramount source of Hindu Law, because they are divine words. However, the Srutis have no practical legal value. This is because they do not contain statements of law. They are mostly religious.
Smrutis is gotten from the word ‘Smrut’, which means ‘To Remember’. The process of remembering is ‘Smrutis’. According to jurisprudence, the words remembered are those which were heard but were forgotten. Through series of meditation, the words were recollected by the Rishis.
From our earlier discussions on ‘Shrut’, the words which are recollected i.e. the ‘Smrut’, are the ‘Vedas’. Thus, the Vedas form the basis for the Smrutis.Where there is a conflict between a ‘Smruti’ and a Vedic text, the Vedic text will supersede the Smruti. However, since the Smruti hardly contained statements of law, a balance had to be established. Consequently, Smrutis were viewed as words which were based on forgotten Shrutis. In doing so, the discord of possible conflict between Smruti and Vedas was eliminated.
Smruti also evolved due to the functions of Dharma. Dharma was a religious head who functioned in the capacity of a law maker. The king had the responsibility of implementing the laws which were given by Dharmas. With the rising complexity in the social spectrum, the king referred all matters to Dharma for the purposing of executing justice. In carrying out his duties, Dharma looked into the Vedas. Where the Vedas made no provision for resolving a conflict, Dharma had to formulate additional laws to cover the lacuna. The laws formulated by Dharma were known as ‘Smruti’. Thus, Smrutis were the invention of Dharma, & other learned groups like the Rishis and Munis.
From the history above, the fact which becomes obvious is that:
- The Vedas were divine laws, while the Smrutis were more of secular laws dealing on morality and religion.
- The Smruti were accepted as statements of laws and they became an effective source of Hindu Law.
The laws laid down in Smrutis included law on morality, procedural and substantive rules applied in the adjudication of disputes and penal provisions meted out as punishments on wrong doers. In Indian parlance they are known as the Achar, Vyavahar and Prayaschit, respectively.
Smrutis are divided into two categories, based on their nature
- Dharmasutras (which are short maxims of law)
- Dharmashastras (the laws were written in poetic forms)
Renowned Smrutikars include
Digests and Commentaries (Tika/Bhashya And Nibandhs)
With the coming of the Smrutis, Hindu law evolved. There were established codes but there were no authoritative judicial precedents. Thus, in the adjudication of disputes, the Smrutis were given varied types of interpretations. Also, a lot of scholars digested the Smrutis and made various commentaries on the Smrutis based on their personal opinions. Because of the above factors there were a lot of conflicting theories on the Smrutis.
However, the latter part of the 7th Century witnessed a lot of commentaries and digests which were focused on reconciliation of the various contradictions on the Smrutis. The commentaries evolved to be more authoritative than the original words. This evolution witnessed the formation of various schools of Hindu Law. Amongst these schools of thoughts are the Dayabhaga and Mitakshara, which make up the major schools of thought on Hindu law.
The concept of Manusmruti states that ‘Nahi Vachane Shatanapi Vastunobhya Karanshakti’, and in English this means: ‘If a valid custom is proved, it outweighs hundreds of texts’. The import of this concept is that custom supersedes any theoretical or written law.
Custom is a rule which has been subject to long usage so as to imbue it with force of law. It is a conduct which has been habitually or repeatedly carried out or observed in a community or sphere. Such habits are usually social habits which have been approved in a community, subject to long usage, and evolved to become a force of law. Other than the Shruti, custom is considered the principal source of Hindu Law.
However, before a social habit can evolve to gain the status of a custom imbued with the force of law, it must pass the following criteria:
- The custom must be reasonable. Reasonability depends on the facts surrounding a circumstance.
- The custom must have evolved from time immemorial i.e. it must be ancient; nobody remembers any act which contradicts the custom.
- The custom must not be contrary to statute. It must conform with the laid down laws.
- The custom must have been continuously observed or carried out in the society without break.
- The custom must be consistent.
- Because of its consistency the custom must also be certain and free from ambiguity.
- The custom must be one which members of the community observe in a peaceful manner, void of any conflict or clashes on its validity.
- The customs must not be contrary to public policy.
Presently, Indian Courts recognize three types of customs:
- Family customs
- Local customs of a region
- Class customs
- Modern Sources of Hindu Law
Legislations: These are the laws enacted by Parliament. Once a law is codified, the provisions of the law on any issue are final, and they are superior to any other source of law. Hindu legislations include the following: The Hindu Succession Act, 1956, Hindu Marriage Act, 1955, Hindu Adoption Maintenance Act, 1956 and Hindu Minority and Guardianship Act, 1956.
- Precedents: Precedents are the decisions of superior Courts, which are binding on lower courts and the superior Courts. In simple parlance, judicial decisions are a source of law and they have binding force.
Hindu Law is a personal law of members of the Hindu religion. However, the scope of its application extends to other groups. Hindu law is considered to be divine. The sources of Hindu law are the places where knowledge on Hindu law can be derived. The sources are classified into orthodox and modern sources.