Sources Of Hindu Law.docx

SOURCES OF HINDU LAW

2013

INTRODUCTION “Hindu law has the oldest pedigree of any known system of jurisprudence, and even now it shows no sign of decrepitude.”Henry Mayne. Hinduism is a way of life, a Dharma. The word Dharma is derived from the Sanskrit word “dhri” which means “to hold together.” Those who profess the Hindu Dharma and seek to follow it are guided by spiritual, social, legal and moral rules, actions, knowledge and duties which are responsible for holding the human race together. Dharma does not mean religion: it is the law that governs all actions. Hindu Dharma is also known under other names such as Sanatan Dharma (Sanatan means eternal and all-pervading) and Vedic Dharma (Dharma based on the Vedas).The Hindu religion not only consists of rules encompassing the rights and duties of kings and warriors, but also provides norms of Desa Dharma that govern interState relations. Hinduism is based on numerous texts. Because Hindus are considered to have the authority to introduce new elements and ideas into their religion, countless volumes of commentaries, traditions and teachings exist. The primary sources of Hinduism are Sruti and Smriti. Sruti literally means what is heard, while Smriti designates what is remembered. In this regard, Sruti is revelation and Smriti tradition. Srutis are the four Vedas, the Rig Veda, Sam Veda, Yajur Veda and Atharva Veda. Each Veda consists of four parts: the Samhita (hymn), the Brahmana (rituals), the Aranyakas (interpretations) and the Vedanta (Upanishads).The Bhagavad Gita (“The Lord’s Song”; c. 200 BC), part of the epic poem Mahabharata, is the most influential Hindu text. Manu, Yajnavalkya and Prasara are the most celebrated lawgivers of ancient India; the Smritis are named after them. There are eighteen main Smritis or Dharma Sastras. Hindu jurisprudence regards the Smritis as the foundation of law. The epic poems Mahabharata and Ramayana are also a source of law in various situations. The Sruti, Smriti and Dharma Sastras prescribe the rules for society based on Dharma; the laws of war can be singled out from them. From thousands of years people living in the Indian subcontinent have been leading their lives by following the guidelines and concepts given in the Vedas. These guidelines have evolved into rules followed by the people and enforced by the rulers and have thus become de

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facto law. In this modern time, the same laws have been retrofitted to suit present conditions and have been codified in the form of several acts of which the important ones are - Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act 1956, Hindu Minority and Guardianship Act 1956, and Hindu Succession Act 1956. SOURCES OF HINDU LAW 1. ANCIENT SOURCES I.

SHRUTIS

II.

SMRITIS

III.

DIGESTS AND COMMENTORIES

IV.

CUSTOMS

2. MODERN SOURCES I.

LEGISLATION

II.

PRECEDENTS

III.

PRINCIPLES OF JUSTICE AND EQUITY

SOURCES OF HINDU LAW 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 inspires the making of law for the governance of the conditions. In this context it means ‘cause of law’. 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 law’ and it is in this sense that the expression ‘source of law’ is accepted in Jurisprudence. The sources of Hindu law are (1) the Smrities or the Dharmasastras, (2) the commentaries and the Digest, and (3) Custom. The enactments of the legislature declaring or altering rules of Hindu law have now become an additional source where the Smrities and the commentaries are silent or obscure, the principles of justice, equity and good conscience are now, as in ancient Hindu law, available within limits to supplement the rules of Hindu law. Decisions of courts have sometimes been referred to as an additional source, but strictly speaking the court does not make law but only ascertain and interpret Page | 2

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them. However the Supreme Court has observed in Luhar Amritlal vs. Doshi Jayantilal1 that the judicial decisions have become part and parcel of the Hindu law as is administered today and when there is an exposition to decide the question afresh with reference to conflicting texts. For the sake of clarity, it would be convenient to classify the various sources of Hindu law under the following two heads. (A) Ancient Sources- Ancient sources include the Shruti or Vedas, Smritis or Dharmashashtras, commentaries & Digests and custom and usages; (B) Modern Sources- Modern sources include the legislation, judicial decisions and justice, equity and good conscience.

1. ANCIENT SOURCES 1.1 THE SRUTIS OR VEDAS Max Müller in an 1865 lecture stated"In no country, I believe, has the theory of revelation been so minutely elaborated as in India. The name for revelation in Sanskrit is Sruti, which means hearing; and this title distinguished the Vedic hymns and, at a later time, the Brahmanas also, from all other works, which however sacred and authoritative to the Hindu mind, are admitted to have been composed by human authors. The Laws of Manu, for instance, are not revelation; they are not Sruti, but only Smriti, which means recollection of tradition. If these laws or any other work of authority can be proved on any point to be at variance with a single passage of the Veda, their authority is at once overruled. According to the orthodox views of Indian theologians, not a single line of the Veda was the work of human authors. The whole Veda is in some way or the other the work of the Deity; and even those who saw it were not supposed to be ordinary mortals, but beings raised above the level of common humanity, and less liable therefore to error in the reception of revealed truth. The views entertained by the orthodox theologians of India are far more minute and elaborate than those of the most extreme advocates of verbal inspiration in Europe. The human element, called paurusheyatva in Sanskrit, is driven out of every corner or hiding place, and as the Veda is held to have existed in the mind of the Deity before the beginning of time..." 1

AIR 1960 SC 964

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It is believed that Hindu law is a divine law. It was revealed to the people by God through Vedas. Various sages and ascetics have elaborated and refined the abstract concepts of life explained in the Vedas. Sruti means that which was heard. So who heard it? Many Rishis (experienced of eternal truth) heard this “truth” in deep meditation in the Himalayas many thousands of years ago. However the truth was so vast and diverse it was impossible to put everything down in the order they heard it so they compiled it and formed an organized set of scriptures called the Vedas. It refers to the oral tradition, and is derived from the root ‘shru’ which means ‘to hear’. It is considered to be the primary source of Hindu Law and is believed to be ―the language of the divine revelation through the sages. When we talk of the shrutis, the Vedas are also said to be included. The four Vedas— Rig Veda, Yajurva Veda, Sama Veda, and Atharva Veda — are considered to be the repository of all knowledge. Each Veda has three components: Samhita, which consists mainly of the hymns; Brahmin, which enumerates our duties and means of performing them; and Upanishad, which contains the essence of these duties. The six vedanags (appendages to the Vedas) and the eighteen Upanishad dealing chiefly with religious rites and means of attaining true knowledge or Moksha or Salvation. Vedas are ultimate traditional source of law. The Rig-Veda is the oldest in origin and consists of hymns and songs in praise of the forces of nature. The Yajurveda deals with rituals and sacrifices and the mantras in this connection. The Samveda contains prayer composed in metre and set to music. The Atharvaveda is devoted to magic, spells and incantations. These Vedas contain the fundamental principles of Hindu law and supposed to contain the direct words of the revelation, and thus held to be infallible. The vedangas are appendages to the Vedas. They contains very little of law, properly so called. The Vedas These are the most ancient religious texts which define truth for Hindus. They got their present form between 1200-200 BCE and were introduced to India by the Aryans. Hindus believe that the texts were received by scholars direct from God and passed on to the next generations by word of mouth. Vedic texts are sometimes called Shruti, which means hearing. For hundreds, maybe even thousands of years, the texts were passed on orally.

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Contents of the Vedas The Vedas are made up of four compositions, and each Veda in turn has four parts which are arranged chronologically. The Samhitas – literally "collections," in this case of hymns and mantras. They form the Veda proper. The Brahmanas – prose manuals of ritual and prayer for the guiding priests. They tend to explain the Samhitas. They also contain early versions of some stories. The Aranyakas – literally "forest books" for hermits and saints. They are philosophical treatises. The Upanishads – books of philosophy, also called "Vedanta," the end or conclusion of the Vedas. The Samhitas Rig-Veda Samhita (c. 1200 BCE) is the oldest of the four Vedas and consists of 1028 hymns praising the ancient gods. Yajur-Veda Samhita is used as a handbook by priests performing the Vedic sacrifices. Sama-Veda Samhita consists of chants and tunes for singing at the sacrifices. Atharva-Veda Samhita (c. 900 BCE) preserves many traditions which pre-date the Aryan influence and consists of spells, charms and magical formulae. There are also two important bodies of supplementary literature, related closely to the Vedas themselves. They are: The Vedangas, which expound the sciences required to understand and apply the Vedas. The Upavedas (usually considered Smriti) which deal with the four traditional arts and sciences. The Six Vedangas (limbs of the Vedas) Kalpa (ritual detail)

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Siksha (pronunciation) Vyakarana (grammar) Nirukti (etymology) Chandas (metre) Jyotisha (astronomy/astrology) The Four Upavedas (following the Vedas) explain arts and sciencesAyur-veda (medicine) Gandharva-veda (music and dance) Dhanur-veda (warfare) Shilpa-veda (architecture) The Upanishads The Upanishads were so called because they were taught to those who sat down beside their teachers. (upa-near, ni-down, shad-sit). These texts developed from the Vedic tradition, but largely reshaped Hinduism by providing believers with philosophical knowledge. The major Upanishads were largely composed between 800-200 BCE and are partly prose, partly verse. Later Upanishads continued to be composed right down to the 16th century. Originally they were in oral form. The early Upanishads are concerned with understanding the sacrificial rites. Central to the Upanishads is the concept of Brahman; the sacred power which informs reality. Whilst the priests (Brahmins) had previously been the ones who, through ritual and sacrifice, had restricted access to the divine, now the knowledge of the universe was open to those of the high and middle castes willing to learn from a teacher.

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1.2 THE SMRITIS OR DHARMASHASTRAS The word “Smritis” literally means “What is remembered”. The Smritis are considered to be human works — the ideas that the sages wrote down from their memory in their own words. Smritis were recollected and created by the inspired sages and is believed to be based on the losts texts of the Vedas, although not in the exact language of the revelation. The Smritis are considered to have emanated from the deity in the sense that though they are not in the very words of God, but embody what the sages remembered from revelation. Their authors do not claim to be divinely inspired, but being perfectly familiar with the Vedas they profess to compile from memory the divine rules handed down by tradition. The Smritis thus imply human agency in the declaration of law, which is both substantive as well as procedural. So we can say that Smrities are of human origin. Dharma sutras and Dharmashastras are the two kinds of Smritis. While the former is in the form of prose (short maxims), the latter is made up of small stanzas of poetry. Many of the renowned sages of ancient India, including Manu (who is credited with giving Hindus their first laws), Vyas, Vasishta, and Yama — though this list is far from exhaustive — are said to have penned the Smritis. The rules laid down in Smritis can be divided into three categories: Achar (relating to morality), Vyavahar (signifying procedural and substantive rules which the king or the state applied for settling disputes in the adjudication of disputes), and Prayaschit (signifying the penalty for commission of a wrong). The Smritis constituted one of the principal sources of classical Hindu law. The smritis are many in number. Among them, Manu’s Smiriti stand foremost. After him yajnavalkya, Narada, Parahara and Brihaspati’s Smrities are more important for purposes of ascertaining the law. The Smritis are of two kindsI.

Dharma sutras

The Dharma sutras were written during 800 to 200 BC. They were mostly written in prose form but also contain verses. It is clear that they were meant to be training manuals of sages for teaching students. They incorporate the teachings of Vedas with local customs. They generally bear the names of their authors and sometime also indicate the shakhas to which they belong. Some of the important sages whose dharma sutras are known are: Gautama, Baudhayan, Apastamba, Harita, Vashistha, and Vishnu.

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They explain the duties of men in various relationships. They do not pretend to be anything other than the work of mortals based on the teachings of Vedas, and the legal decisions given by those who were acquainted with Vedas and local customs. Gautama - He belonged to Sam Veda School and deals exclusively with legal and religious matter. He talks about inheritance, partition, and stridhan. Hardatta (AD 12 century) wrote a commentary called the Mitakshara on the Gautama Dharma sutra. Baudhayan - He belonged to the Krishna Yajurved School and was probably from Andhra Pradesh. He talks about marriage, sonship, and inheritance. He also refers to various customs of his region such as marriage to maternal uncle's daughter. Apastamba - His sutra is most preserved. He also belonged to Krishna Yajurveda School from Andhra Pradesh. His language is very clear and forceful. He rejected prajapatya form of marriage. He also did not recognize secondary sons, not even an adopted son. He emphasized that the Vedas were the source of all knowledge. Vashistha - He was from North India and followed the Rig-Veda School. He recognized remarriage of virgin widows. He holds the view that the custom of the Aryavrat must be everywhere acknowledged as authoritative. Like Apastamba, he recognizes only six forms of marriage and excludes from his reckoning the Paisacha and the Prajapatya. He states that an assembly (Parishad) often should be constituted for settling disputes. Along with other topics, he deals with marriage, sonship, adoption, inheritance, source of law and jurisdiction of courts. Vishnu- Vishnu’s work, the Vishnu Smiriti, is partly in an aphoristic style and partly in verse. It deals with criminal law, civil law, marriage, sonship, adoption, inheritance, debt, interest, treasure trove and various other topics. He denounces atheism and the study of irreligious books. Harita- Harita’s work is known as Harita-Smiriti. Harita is probably one of the early exponents of law. From Visvarupa down to the latest writers on Dharmashastras, Harita is quoted most profusely. The Harita Dharamsutra deals with the source of Dharma, Brahmacharya, Snataks, householder, prohibition about food, impurity on birth and death, duties of kings, rules of statecraft, court procedure, various principles of law, duties of husband and wife, various kinds of penances, expiatory prayers and many other matters. Page | 8

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Dharmashastras

Dharmashastras were mostly in metrical verses and were based of Dharma sutras. However, they were a lot more systematic and clear. They dealt with the subject matter in three parts

Aachara : This includes the theories of religious observances,



Vyavahar: This includes the civil law.



Prayaschitta: This deals with penance and expiation.

While early Smritis deal mainly with Aachara and Prayaschitta, later Smritis mainly dealt with Vyavahar. Out of may dharmashastras, three are most important. The three principal Smritis arei.

The code of Manusmritis. It was between 200 B.C and 200 A.D.

ii.

The code of Yajnavalkya. It was between 200 B.C and 200 A.D.

iii.

The code of Naradha. It was written 500 or 600 A.D.

i.

Manusmriti

This is the earliest and most important of all. It is not only defined the way of life in India but is also well known in Java, Bali, and Sumatra. The name of the real author is not known because the author has written it under the mythical name of Manu, who is considered to the first human. This was probably done to increase its importance due to divine origin. Manusmriti compiles all the laws that were scattered in Presmriti sutras and Gathas. He was a Brahman protagonist and was particularly harsh on women and sudras. He holds local customs to be most important. He directs the king to obey the customs but tries to cloak the king with divinity. He gives importance to the principle of 'danda' which forces everybody to follow the law. Manusmriti was composed in 200 BC. When the Manusmiriti was compiled, the Hindu concept of law was that ‘law is the king of kings’. Manu also subscribes to the notion that the king is subordinate to law and that the king is merely a law enforcer. But he tries to clothe the king with the divine authority and seems to support the theory of divine right of kings. The time when Manusmiriti was written were the times of the revival of Brahmanism. The Brahman sought the support of the king. With a view to strengthening the hands of the king, the Manusmiriti tends to endow the king with the divine authority. As a natural corollary to the strengthening of king’s position,

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Manu, while doing with the duties of the king, emphasizes the importance of danda, the secular instrument in the hands of the king for enforcement of law. Manu holds that danda alone governs the protected beings, protects them, watches over them while they sleep; the wise declare it to be identical with law. Manu gives predominant position to usage and custom. He enjoins: “Let everyone, therefore, who has due reverence of the supreme spirits which dwell in him, diligently and constantly observe immemorial custom”. Manu further says that while deciding a dispute, the king must enquire into the custom of the locality, of the caste, of the guilds and that it is the duty of the king to decide all cases which fall under eighteen titles of law according to the principles drawn from local usage and from the sacred law. Sadachara (custom) is defined as the custom handed down in regular succession from time immemorial, among the four chief castes and the mixed races of the country. Pre-eminent position is given to custom by Manu, though his commentators are divided in the view whether a custom repugnant to sacred law is valid or not. Manu, being the protagonist to Brahminical revival, preached orthodox doctrines. He is particularly harsh to women and sudras. He supports the dominant position of the Brahmanas in the society. For instance, he holds the view that for the intentional killing of Brahmnas, there is no Prayaschita, as no amounts of penance can redeem the sinner from the sin. If a Sudra marries a Brahman woman, death is the only punishment for him. There have been several commentaries on this Smriti. The main ones are: Kalluka's Manavarthmuktavali, Meghthithi's Manubhashya, and Govindraja's Manutika. ii.

Yajnavalkya Smriti

Though written after Manusmruti, this is a very important smriti. Its language is very direct and clear. It is also a lot more logical. He also gives a lot of importance to customs but hold the king to be below the law. He considers law to be the king of kings and the king to be only an enforcer of the law. He did not deal much with religion and morality but mostly with civil law. It includes most of the points given in Manusmriti but also differs on many points such as position of women and sudras. He was more liberal than Manu. This was composed in around 0 BC. Yajnavalkya does not subscribe to the theory of divine right of king, rather, he is opposed to it. According to him, the king is subordinate to law. He enjoins on the king to be modest, Page | 10

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even minded and righteous. To devote himself to the service of people and to look after the administration of justice. On the other hand he holds the view that no one. Whether a brother, a son or preceptor can escape from the punishment of the king, if he deviates from the performance of his own duties.2 Thus Yajnavalkya strongly favours the power of danda that the king enjoys as the principal law enforcer. Yet he does not want to clothe him with any divine authority to rule. Yajnavalkya mentions the king power of issuing edicts or ordinances, the Rajyashasanas, but he does not lend them the pre-eminent position that is ascribed to them by Narada. Like Manu, Yajnavalkya attaches importance to custom. He says, “One should not practice that which, though ordained by the Smiriti, is condemned by the people.”3 Yajnavalkya, though a follower of traditional conservatism in many matters, was a liberal sage. We do not find the same orthodoxy and sternness in his work as we find in Manu’s. there are many passages in the Yajnavalkya which show a remarkable agreement with Manu, yet there are several points on which Yajnavalkya differs from Manu and shows in general a more advanced state of thought and feeling than Manu.4 On the matter of status of sudras and women, on the women’s right to hold or inherit property, he holds liberal views. Similarly, he takes a liberal view of the criminal penalties. Punishment for various offences prescribed in the Yajnavalkya Smriti is less severe than that prescribed by Manu. Probably there was some unseen influence of the enlightened philosophy of Buddhism. Yet, it should not be overlooked that Yajnavalkya was for revival of Brahmanism. The philosophical doctrines propounded in the third section approached very closely to that phase of the Vedanta that was taught by Shankara. Vijnaneshwar's commentary 'Mitakshara' on this Smriti, is the most important legal treatise followed almost everywhere in India except in West Bengal and Orissa. iii.

Narada Smriti

Narada was from Nepal and this smriti is well preserved and its complete text is available. This is the only smriti that does not deal with religion and morality at all but concentrates only on civil law. This is very logical and precise. In general, it is based on Manusmriti and

2

Yajnavalkya Smriti I, 358

3

Yajnavalkya Smriti I, 156

4

Kane, 180

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Yajnavalkya smriti but differ on many points due to changes in social structure. He also gives a lot of importance to customs. This was composed in 200 AD. The most remarkable feature of the NaradaSmriti is that it is very systematic and exhaustive treaties on rules of law. Narada was bold in accepting the changes that occurred during his period and does not hesitate in differing from his predecessors. He formulated and declared new rules which came into existence on account of social, economic and political change of his times. At the time when NaradaSmriti was composed, Harshvardhan had established his rule in the Aryaverta. Since the rule of Mauryas it was felt that the need of the empire required that the king should have some law-making power. Many edicts and ordinances were promulgated by the kings. Narada was bold enough to recognize this and gave it judicial formulation. The Narada Smiriti is, therefore first of the Dharmshastra which recognizes not merely the king’s power of making law but also that the law made by the king overrides the sacred law and custom. However, Narada does not sanction unlimited law-making power to the king. The king is still enjoined to remain within the framework of sacred law. Yet, the fact remains that for the first time in history of Hindu law, a sage proclaimed that king has law-making power and the king-made law overrides everything else. Narada also holds the view, “Be whatever, the king is to be obeyed.” He confers adequate powers on the king to punish the offenders. “As the king has obtained lordship, he must be obeyed. Polity depends on him.”5 Side by side with this view, Narada says that “custom decides everything and overrules the sacred law. Even before Narada, the importance of custom had been recognized. Most of the sages held that view, that the king, as administrator of justice, should decide disputes in accordance with custom. But it seems most of them look the view that custom is supplementary to sacred law. At any rate, no sage in clear terms laid down that custom overrides the sacred law. Narada for the first time said so categorically. As compared to other sages, Narada was a progressive sage. Narada confers rights on women to hold and inherit property. He is not as harsh to sudras as Manu is. He also recognizes that

5

Narada Smiriti, XVIII, 24

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in certain circumstances a woman can leave her husband and take another. He condemned usury. The Narada Bhashya is a well-known commentary by Ashaya on the Naradasmiriti. There are other Smiritis also but these are not available to us in their entirety. Among them mention may be made of the Smiritis of Parasara, Brihaspati and Katyayana. There are others about which we know only from Digests and Commentaries where reference to these has been made. Of these Smiritis, important ones are of Vyasa, Samvarta and Devala. 3. THE COMMENTARIES AND DIGESTS After 200 AD, most of the work was done only on the existing material given in Smirits. The work done to explain a particular smriti is called a commentary. Commentaries were composed in the period immediately after 200 AD. Digests were mainly written after that and incorporated and explained material from all the smriti. As noted earlier, some of the commentaries were manubhashya, manutika, and mitakshara. While the most important digest is Jimutvahan's Dayabhag that is applicable in the Bengal and Orissa area. Mitakshara literally means 'New Word' and is paramount source of law in all of India. It is also considered important in Bengal and Orissa where it relents only where it differs from dayabhaga. It is a very exhaustive treaties of law and incorporates and irons out contradicts existing in Smritis. The basic objective of these texts was to gather the scattered material available in preceeding texts and present a unified view for the benefit of the society. Thus, digests were very logical and to the point in their approach. Various digests have been composed from 700 to 1700 AD. Commentaries and digests (nibandhs) cover a period of more than one thousand years, from the seventh century to 1800 A.D. A lot of these works are devoted to explaining and reconciling the contradictions in the Smritis, and in that light, are akin to modern scholarly journals. The different schools of Hindu Law arose because different authorities wrote differing versions and gave interpretations of the law. Dayabhaga and Mitakshara are the two major schools of Hindu Law.

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Commentaries on Manusmiriti Most honoured commentaries on the Manusmiriti are by Medhatithi, Govindraja and kulluka Bhatta. Ashaya and Vishnuvamin also wrote commentaries on the Manusmiriti but they are not available to us. Medhatithi- the appropriate date of this commentary is A.D. 825-900. This is earliest extent commentary on the Manusmiriti. On the whole Medhatithi’s comments dependable and instructive. He is a perfect master of the Mimansa rules, and his legal acumen is admirable. At times he reports to general propositions and exposes himself to the attack of begging the question. The name of his commentary is the Manubhashya. Govindraja- the manutika of Govindraja was written in A.D. 11th or 12th. According to Dr. Jolly the work is very useful of the interpretation of the text. As it contains a full paraphrase of the text and is marked by conciseness of expression and phi logical accuracy.6 Mr. Justice Desai says: “There is not much subtlety in the work though there is depth. He is particularly analytical and pedestrian but sound in his exposition”7 kulluka Bhatta- The Manvarthamuktavali by Kuliuka is the most famous of all commentaries on Manu. According to Kane, “kulluka’s commentary is concise and lucid and his remarks are always to the point. He avoids all unnecessary discussion and is never prolix. He was, however not original. He drew upon the commentaries of Medhatithi and Govindaraja and incorporated a great deal from them into his work without acknowledgement”8. He frequently pours ridicules on Govindraja and is critical of him and Medhatithi. According to Kane, his work belongs to about A.D. 1250. Commentaries on Yajnavalkya Smiriti Commentaries on the Yajnavalkya-Smiriti are as numerous as on the Manusmiriti. Of these, mention may be made of commentaries of Visvarupa, Vijnaneshwara, Apararka, Shulapani and Mitra Mishra.

6

Jolly L & C. 66.

7

Mulla (14th Ed.)

8

Kane, 359-60.

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Visvarupa- Visvarupa’s commentary named as Balakrida is the earliest commentary on the Yajnavalkya-Smiriti and belongs to 9th century A.D. According to Kane, “The style of Visvarupa is simple and forcible and resembles that of the great Sankaracharya. He quotes profusely from the Vedic works, the Brahmanas and the Upnishads. His work is thoroughly saturated with the love of the Puruvamimansa. He quotes Jaimini by name. throught his work he relies mimansa maxims and methods of discussion. In his philosophical view he is most akin to Shankara”.9 Vijnaneshwara- of all the commentaries, Vijnaneshwara’s commentary, the Mitakshara, is by far the most important and the most outstanding one. The age of the work of considered to be the later part of the 11th century. Vijnaneshwara belonged to South India. “ This far seeing jurist and statesman by practically freeing Hindu law from its religious fetters and making it readily acceptable to all communities in all parts of India, established it on new foundation.” Mitakshara has been accepted throught the country, except in Bengal, as the highest authority, and even in Bengal it is of high authority, only yielding to the Dayabagha on those points where they differ. The Mitakshara according to Kane “represents the essence of the Dharamshastra speculation that preceded it for about two thousand years and it became the fountain head from which flowed fresh streams to exigencies and development. The Mitakshara is not only a commentary explanatory of the verses of Yajnavalkya, but it is in the nature of a digest of Smiriti material. It brings together numerous Smiriti passages, explains away contradictions among them by following the rules of interpretation laid down in the Purvamimansa system. The word “Mitakshara” literally means, ‘a new words’. And the Mitakshara is generally concise and to the point. The jurist has meant his work to be a synthesis of Smiriti texts, and therefore whenever he has felt the need, he has expanded his commentary to enormous length. Such has been the importance of the Mitakshara that several commentaries were written on it. The most famous of these are by Visvesvara, Nandapandita and Balambhatta; Kane places the Mitakshara at between A.D. 1100-1120. Aparaka- Aparaditya is another important commentary on the Yajnavalkya-Smiriti written in 12th century A.D. by Aparaka. His work is of paramount authority in Kashmir. Aparaka work is not a mere commentary but it is in the nature of a digest. It is far more voluminous than the 9

Kane 253.

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Mitakshara. It is said, “Aparaka is much inferior to the Mitakshara in lucid exposition, in dialectic skill, in subtlety of argument, in the ordered presention of heterogeneous material. Mitra Mishra- Mitra Mishra wrote commentary on Yajnavalkya and also separate treaties. Both of them are known as the Viramitrodaya, he closely follows the Mitakshara and throught the Mitakshara jurisdiction the authority of the Viramitrodaya is high. The work was probably composed between A.D. 1610-1640. The author has handled the subject competently with wealth of learning. With great attention to detail and Dharamshastra and covers all branches. The Viramitrodaya deals with some of the points which were left doubtful by Vijnaneshwara. This work supplements many gaps and ommissions in the earlier commentaries and illustrates and elucidates with logical preciseness the meaning of doubtful prescriptions. It is declaratory of the law of the Benares School.

CUSTOMS As stated by Mayne in his treatise on `Hindu Law & Usage’ : “Hindu law is the law of the Smritis as expounded in the Sanskrit Commentaries and Digests which, as modified and supplemented by custom, is administered by the courts.” Finally, we come to custom, which can be understood as a practice that has been followed for such a long time that it has acquired the force of law. In many aspects, a custom is said to be superior to written law. You may have noticed the ubiquity and the importance of custom in your own family, where rituals and rites have been handed down from generation to generation and are unwavering. Customs can be local, based on the class, and familial. But can every practice become a custom? No. For a practice to be considered to be a custom — and thereby, a source of law — it must be: 

Ancient;



Certain and unambiguous;



Free of technicalities;



Not illegal, immoral, or against public policy; and



Should have been continuously and uniformly followed for a long time.

Most of the Hindu law is based on customs and practices followed by the people all across the country. Even smriti have given importance to customs. They have held customs as Page | 16

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transcendent law and have advised the Kings to give decisions based on customs after due religious consideration. Customs are of four types: 1. Local Customs - These are the customs that are followed in a given geographical area. In the case of Subbane vs. Nawab10, Privy Council observed that a custom gets it force due to the fact that due to its observation for a long time in a locality, it has obtained the force of law. 2. Family Customs - These are the customs that are followed by a family from a long time. These are applicable to families where ever they live. They can be more easily abandoned that other customs. In the case of Soorendranath vs. Heeramonie11 and Bikal vs. Manjura12, Privy Council observed that customs followed by a family have long been recognized as Hindu law. 3. Caste and Community Customs - These are the customs that are followed by a particular cast or community. It is binding on the members of that community or caste. By far, this is one of the most important source of laws. For example, most of the law in Punjab belongs to this type. Custom to marry brother's widow among the Jats is also of this type. 4. Guild Customs - These are the customs that are followed by traders. Requirements for a valid custom 1. Ancient: Ideally, a custom is valid if it has been followed from hundreds of years. There is no definition of ancientness, however, 40yrs has been determined to be an ancient enough. A custom cannot come into existence by agreement. It has to be existing from long before. Thus, a new custom cannot be recognized. Therefore, a new form of Hindu marriage was not recognized in Tamil Nadu. In the case of Rajothi vs. Selliah13, a Self-Respecter’s Cult started a movement under which traditional ceremonies were substituted with simple ceremonies for marriage that did not involve Shastric rites. HC held that in modern times, no one is free to create a law or custom, since that is a function of legislature. 10

1947 Lahore

11

1973 Patna

12

ibid

13

(1966) 2 MLJ 40

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2. Continuous: It is important that the custom is being followed continuously and has not been abandoned. Thus, a custom may be 400 yrs. old but once abandoned, it cannot be revived. 3. Certain: The custom should be very clear in terms of what it entails. Any amount of vagueness will cause confusion and thus the custom will be invalid. The one alleging a custom must prove exactly what it is. 4. Reasonable: There must be some reasonableness and fairness in the custom. Though what is reasonable depends on the current time and social values. 5. Not against morality: It should not be morally wrong or repugnant. For example, a custom to marry one's granddaughter has been held invalid. In the case of Chitty vs. Chitty 1894, a custom that permits divorce by mutual consent and by payment of expenses of marriage by one party to another was held to be not immoral. In the case of Gopikrishna vs. Mst Jagoo14 a custom that dissolves the marriage and permits a wife to remarry upon abandonment and desertion of husband was held to be not immoral. 6. Not against public policy: If a custom is against the general good of the society, it is held invalid. For example, adoption of girl child by nautch girls has been held invalid. In the case of Mathur vs. Esa, a custom among dancing women permitting them to adopt one or more girls was held to be void because it was against public policy. 7. Not against any law: If a custom is against any statutory law, it is invalid. Codification of Hindu law has abrogated most of the customs except the ones that are expressly saved. In the case of Prakash vs. Parmeshwari15, it was held that law mean statutory law. Proof of Custom The burden of proving a custom is on the person who alleges it. Usually, customs are proved by instances. In the case of Prakash vs. Parmeshwari,16 it was held that one instance does not prove a custom. However, in the case of Ujagar vs. Jeo, it was held that if a custom has been brought to notice of the court repeated, no further proof is required. existence of a 14

1936

15

AIR 1952 P H 34

16

ibid

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custom can also be proved through documentary evidence such as in Riwaz-i-am. Several treaties exist that detail customary laws of Punjab. Usage and Custom The term custom and usage is commonly used in commercial law, but "custom" and "usage" can be distinguished. A usage is a repetition of acts whereas custom is the law or general rule that arises from such repetition. A usage may exist without a custom, but a custom cannot arise without a usage accompanying it or preceding it. Usage derives its authority from the assent of the parties to a transaction and is applicable only to consensual arrangements. Custom derives its authority from its adoption into the law and is binding regardless of any acts of assent by the parties. In modern law, however, the two principles are often merged into one by the courts.

MODERN SOURCES The most important modern sources of law are the legislation passed by the Parliament of India. As we studied earlier in this Unit, various aspects of Hindu Law have been codified in legislation such as The Hindu Marriage Act, 1955, The Hindu Adoptions and Maintenance Act, 1956, The Hindu Minority and Guardianship Act, 1956, and The Hindu Succession Act, 1956. In this Course, apart from looking at Muslim Law, Parsi Law and Christian law, we will also study the three enactments listed above. Succession Law will be dealt with in a separate Programme. Once enacted, the codified law is considered to be final, and is said to override prior customs, unless the Act itself provides otherwise. Precedents are also referred to as ‘judge-made law’. Judgments of the Supreme Court are binding on all courts (and itself), and the judgments of the higher courts are binding on the lower courts. This way, when a court considers a particular aspect of Hindu Law and provides a judgment, all courts are bound to follow this decision and the law is said to be decided. Finally, in cases where there is no existing rule or law that can be applied to a problem that comes up before the Court, principles of justice, equity, and good conscience are to be kept in mind while resolving a dispute. Fairness and propriety are to be considered as the basic guiding factors. This reliance on principles of justice, equity, and good conscience forms the basis of natural law theory. Page | 19

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(a) Judicial Decisions: Judicial decisions pronounced by the courts upon the various points have also developed as sources of law. Now all the important points of Hindu law are found in the law reports. Since the laws propounded by the courts have the effect of superseding the commentaries, they have assumed greater importance. The decisions of Privy Council and Supreme Court are binding on all the courts including High Courts. The decisions of the High Court are not binding on any other High Court although they are binding on the courts subordinate thereto. Thus the decisions of Privy Council, Supreme Court and those of the High Courts constitute precedents to become important source of law. Bose, J. observed: “The laws we are administering are judge-made laws. The ancient sages said nothing about the present matter and even where they often spoke with conflicting voices, and when they did it, sometimes spoke so enigamatically that the learned and able commentators were unable to agree as to what they meant. In the circumstances it is the courts which have moulded the Hindu law and made it, what it is today.” The law relating to adoption prior to the Hindu Adoption and Maintenance Act, 1956, the law delimiting the pious duty of the son to pay the father’s debts to the extent of ancestral property, inherited by him, recognizing the coparcener’s power to alienate his shares in the joint-family property prior to partition in certain provinces, restricting the definition of Stridhan and women’s right, are some of numerous instances where the judges of the Privy Council have modified, or altered the law either on account of their ignorance of Sanskrit language or owing to their enthusiasm to introduce the rules of equity and good conscience to the original law. The judicial decisions have, thus, immensely affected the growth of Hindu law. (b) Legislation: Legislation is the modern source of Hindu Law and has a colossal importance, in the evolution of modem Hindu law. The legislations have the effect of reforming the law and in certain respects have superseded the textual law. Prior to the British regime, Hindu law was subjected to diverse practices in different parts of the country on account of differences in the

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commentaries and Digests. Codification of law in the light of changes which had taken place in the course of time was a necessity. The British Government itself passed certain Acts with a view to bring some reforms in certain aspects of law. In post-independence era, legislations of far-reaching effect have revolutionized the law relating to marriage, adoption, maintenance, succession, minority and guardianship. Now the legislations have become potential source of law. The important legislations which have modified, altered and supplemented the Hindu law are as follows: (1) The Caste Disabilities Removal Act, 1850: Under the Act a person renouncing his religion or losing his caste is not deprived of his rights of inheritance. (2) The Hindu Widow’s Remarriage Act, 1856: The Act legalized remarriage of Hindu widow and made clear provisions with respect to their rights and disabilities on remarriage. (3) The Native Converts Marriage Dissolution Act, 1866: The Act permitted Hindu converts to Christianity to get dissolution of marriage under certain circumstances. Under the pure Hindu law marriage being considered a sacrament could not be subjected to dissolution. (4) The Special Marriage Act, 1872: The Act permitted marriage between persons having different castes and different religions. It was amended in 1923 and has been repealed by the Act 43 of 1954. (5) The Indian Majority Act, 1875: The Act fixes the age of majority on the completion of 18th years except in matters of marriage and adoption, for which the rules of old Hindu law continued to apply. (6) The Transfer of Property Act, 1882: The Act superseded the Hindu law relating to the transfer of property excepting certain gifts. (7) The Guardian and Wards Act, 1890: Page | 21

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It provided for the appointment of guardian for the welfare of minors. (8) The Hindu Disposition of Property Act, 1916: It permitted bequests of property to an unborn person. (9) Inheritance (Removal of Disabilities) Act, 1928: The Act amended the Hindu Law relating to exclusion from inheritance of certain class of heirs on account of physical defects. (10) The Hindu Law of Inheritance (Amendment) Act, 1919: It provided for a change in the order of heirs on intestate succession and created new female heirs. (11) The Indian Succession Act, 1925: It modified the Hindu law relating to Wills. (12) The Child Marriage Restraint Act, 1928 (Sharda Act): It provided restraints on child marriages. (13) The Hindu Gains of Learning Act, 1930: The Act provided that any acquisitions made by a coparcener by means of learning special skill or training are to be treated as his separate property. Prior to the Act property acquired by a coparcener by the exercise of his professional skill or special training was regarded as joint-family property, if the expenses of his training or education were met out of the jointfamily property or he was maintained out of the joint fund. (14) The Hindu Women’s right to Property Act, 1937: The Act improved the position of Hindu woman with respect to her right of inheriting the coparcenary property. A widow became entitled to get a share in the coparcenary property along with her son. (15) The Arya Marriage Validation Act, 1937:

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The Act recognized the validity of inter-caste marriage current among the Arya Samajists, whether Hindus or converts from other religions. (16) The Hindu Marriage Disabilities Removal Act, 1946: It has now been repealed by Hindu Marriage Act 25 of 1955. (17) The Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946: The Act permitted a Hindu wife to reside separately and to get maintenance from the husband in certain cases. (18) Hindu Marriage Validity Act of 1949: It provided that a marriage between Hindus of different castes shall not be invalid only on the ground that the parties thereto belonged to different castes, sub-castes or sects. In fact, it legalized inter-caste marriages. Now the Act has been repealed by Hindu Marriage Act 25 of 1955. (19) The Special Marriage Act, 1954: The Act has validated the marriage between two persons who belonged to two different religions. (20) The Hindu Marriage Act, 1955: The Act has completely overhauled the law relating to marriage between Hindus, including Jain, Sikh and Buddhists. (21) The Hindu Minority and Guardianship Act, 1956: The Act has supplemented the law, already existing with respect to minors and guardian. It has renovated the powers of Guardians of different kinds. (22) The Hindu Succession Act, 1956: The Act introduced some remarkable changes in the law of succession. It provided for the equal rights of inheritance to Hindu females and granted absolute rights to them with respect to a property acquired by them through any lawful means. Page | 23

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(23) The Hindu Adoptions and Maintenance Act, 1956: The Act has considerably changed the old law of adoption and maintenance and has conferred the right on the Hindu female to adopt a child.

(24) Marriage Laws (Amendment) Act, 1976: The Act has brought about some revolutionary changes in the existing Hindu Marriage Act of 1955. It introduced divorce by mutual consent, common grounds for judicial separation and divorce and relaxation in the rigorous process of obtaining divorce. (25) The Child Marriage Restraint (Amendment) Act, 1978: The Act provided that the age of male should be 21 years and that of female 18 years at the time of marriage. (26) The Prohibition of Child Marriage Act, 2006: The Act provided that the case of contravention of the condition specified in Clause (iii) of Section 5 of the Hindu Marriage Act with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both. (27) Indian Contract Act, 1872: The Indian Contract Act supersedes the Hindu law of contract, except the rule of Damdupat which lays down that interest exceeding the amount of the principal cannot be recovered at any time. (c) Justice, Equity and Good Conscience: The principles of justice, equity and good conscience have been strong source of Hindu Law. Virtually the introduction of this phraseology in Hindu law can be accredited to the modem English judges. Necessity was felt by the judges to adopt certain principles of fairness and justice in those cases where law became too much complicated on account of conflicting texts or complete absence of law or judicial precedents on certain aspects of Hindu law. Rules of justice, equity and good conscience were, thus made applicable in the administration of Hindu Law to cases not governed by Smritis and the Commentaries. Page | 24

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In Kanchava vs. Girimalappa17, (before the passing of the Hindu Succession Act, 1956). it was laid down by the Privy Council that the murderer was disqualified from inheriting the property of the victim. The rule of English law was applied to Hindu on grounds of justice, equity and good conscience, and this was statutorily recognized in the Hindu Succession Act, of 1956. It is, however, to be noted that the principles of justice, equity and good conscience found due recognition in the early Hindu Smriti era. An indirect reference to the principles of equity 0was found in Manu’s and Yajnavalkyas narration of sources of law where “what is agreeable to one’s soul (good conscience)” has been suggested as ordained foundation of law. Brihaspati declared that there would be failure of justice if the decisions are given merely according to the letters of Shasta’s and the principles based on reason are not taken into consideration. Narada, on the other hand, said that in case of conflict between texts of Dharmashastras on certain points that which is reasonable and appealing to conscience must be taken as law. Kautilya in his Arthashastra has clearly said that if Dharma text is found opposed to judicial reasoning, the Dharma text failed and the authority of reason prevailed. Thus the Dharmashastra writers have recognized the importance of the principles of equity for the growth of Hindu Law.

17

AIR 1948 Bom. 569

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CRITICAL ANALYSIS OF THE SOURCES OF HINDU LAW IN THE LIGHT OF SOME JUDICIAL DECISIONS It is significant to note that the term ‘Hindu’ is not defined anywhere in terms of religion or in any statute or judicial decisions. For the purpose of determining to whom Hindu Law applies, it is necessary to know who is a Hindu and none of the sources expressly state so. At most from statutes, we can get a negative definition of a Hindu which states that Hindu law shall apply to those who are not Muslim, Christian, Parsi, Jew, etc. and who are not governed by any other law. According to Justice Markandey Katju, Hindu law does not originate from the Vedas (also called Shruti). He vehemently asserts that there are many who propound that Hindu law originated from the Shrutis but this is a fiction and in fact Hindu law originated from the Smriti books which contained writings from Sanskrit scholars in ancient time who had specialized in law. The Shrutis hardly consist of any law and the writings ordained in the Smriti do not make any clear-cut distinction between rules of law and rules of morality or religion. In most of the manuscripts, the ethical, moral and legal principles are woven into one. It is perhaps for this reason that according to Hindu tradition, law did not mean only in the Austinian sense of jurisprudence and is objectionable to it; and the word used in place of ‘law’ was the Sanskrit word ‘dharma’ which connotes religion as well as duty. Although Dharmasutras dealt with law, they did not provide an anthology of law dealing with all the branches of law. The Manusmriti supplied a much needed legal exposition which could be a compendium of law. But according to Kane, “It is almost impossible to say who composed the Manusmriti.” The very existence of Manu is regarded to be a myth by many and he is termed as a mythological character. Many critics assert that the word Smriti itself means that what is remembered and therefore the validity or proof of the existing Smritis could be challenged. It cannot be said for certainty that what the sages remembered was actually what was propounded. Hindu law has generally been critiqued on the grounds that the Smritis and other customs were generally extremely orthodox and against the favours of women. Hindu society thus has always been a patriarchal society and women have always received subdued importance over Page | 26

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men. Some also disapprove of the notions of caste-based system created by ancient Hindu law from which emerged the ill-perceived practices of untouchability, etc. The Smritis are admitted to possess independent authority but while their authority is beyond dispute, their meanings are open to various interpretations and has been and is the subject of much dispute. Till date, no one can say for sure the exact amount of Smritis which exist under Hindu law. It is due to the abovementioned problems that the digest and commentaries were established and various schools of Hindu law started to give birth. The modern sources of Hindu law such as Justice, equity and good conscience have been critiqued on the grounds that it paves the way for personal opinions and beliefs of judges to be made into law. We have seen catena of cases where the decisions of the Court have been criticised for want of proper reasoning. This also signifies the incompleteness of the laws which exist. The Supreme Court in most matters has ascertained the rules of Hindu law successfully but there are couple of cases where they have interpreted the rules in their own light. One of the gravest cases of the Supreme Court which deserves much criticism is the case of Krishna Singh v. Mathura Ahir,18 the Allahabad High Court had rightly held that the discriminatory ban imposed on the Sudras by the Smritis stands abrogated as it contravenes the Fundamental Rights guaranteed by the Constitution. However, the Supreme Court contradicted the above view and held that“Part III of the Constitution does not touch upon the personal laws of the parties. In applying the personal laws of the parties one cannot introduce his own concepts of modern times but should enforce the law as derived from recognised and authoritative sources of Hindu law....except where such law is altered by any usage or custom or is modified or abrogated by statute.” It can be submitted with ease that the above view is contrary to all Constitutional theories and is expressly in contradiction with Article 13. It is shocking to note that this judgment is yet to be over-ruled in express terms.

18

(1981) 3 SCC 689

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Since the aegis of time, Hindu law has been reformed and modified to some extent through legislations but these reforms have been half-hearted and fragmentary. The problem with fragmentary reforms is that though reforms were made to change some aspects, their implications on other aspects were over-looked. For example, the Hindu Women’s Right to Property Act, 1937, was passed with a view to granting property rights to women but its repercussions on the law of joint family was over-looked. The result was that fragmentary reforms through legislations solved some problems but resulted in others.

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CONCLUSION After Considering all the sources I come to the conclusion as we all knowthat Hindu Law is considered to be divine law as it is strongly believed that the sages had attained some spiritual dominion and they could communicate directly with God form whom we get the divine law. But this is only an assumption and no concrete proof for the same is shown that the sages could communicate with God (whose very existence is challenged by atheists). Due to this, many communities are also suffering from the misapprehension or delusion that their forefathers and messiahs had revelations from God. Secondly the thing which I would like to state that Many people make the mistake of considering various text books written by erudite scholars as sources of Hindu law. This is because the Courts have decided many cases relying on these text books and quoted them for reference. For example, Mulla’s Hindu Law has been quoted by many judges. In Bishundeo v. Seogani Rai,19 Justice Bose giving the majority judgment stated that “The rule laid down in Mulla’s book is expressly stated to be in cases where the position is not effected by a decree of a competent Court.” The same has been the case with many other text books. It should be made clear that text books are not sources of Hindu law and the authors have no authority to lay down the law. Justice A.M.Bhattacharjee strongly states that according to him he cannot think that “even a staunch believer in any divine existence, transcendent or immanent, can believe in the 'divine origin’ of Hindu law, unless he has a motive behind such profession of belief or has not read the Smritis or is ready to believe anything and everything with slavish infidelity.” It is also believed that all Hindu Law originated from the Vedas (also called Shruti). However, in fact this a fiction, and in fact the Hindu law really emanated from books called the Smritis e.g. Manusmriti, Yajnavalkya Smiriti and the Smritis of Vishnu, Narad, Parashar, Apastamba, Vashisht, Gautam, etc. These Smirits were not laws made by parliament or some legislature. They were books written by certain Sanskrit Scholars in ancient times who had specialized in law. Later, commentaries (called Nibandhas or Tikas) were written on these Smritis, e.g. the commentary of Vijnaneshwar (who wrote a commentary called Mitakshara on the Yajnavalkya Smiriti), the commentary of Jimutvahan who wrote a book called the

19

AIR 1951 SC 280

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Dayabhaga (which is not a commentary on any particular Smriti but is a digest of several Smritis), Nanda Pandit (whose commentary Dattak Mimansa deals specifically with the Law of Adoption), etc. Commentaries were then written on these commentaries, e.g. Viramitrodaya, which is a commentary on the Mitakshara (which founded the Banaras School of Mitakshara). It is not necessary to go into further details about this as that would not be necessary for this discussion. There are many Smritis which are yet to be found according to Historians and many conflicts of opinions and interpretations have arisen for the existing ones. There are also several areas where Hindu law is silent. At last I would like to conclude by saying that the present sources of Hindu law are uninviting and the Legislature could look into sources and customs of other religions and incorporate them into Hindu law if it caters to the need of the society and meets the test of time.

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