Sources of Hindu Law | Family Law

1) Introduction - 

       Source means "basis from which law is evolved". Source of law is a basis, which enables the Court to interpret law.  Source of law is a method by which the rules have been discovered or created. Source of law may be literary or Material.  In ancient times Law was developed by custom. Hindu law is of this kind. The Vedas (Shruti) were are regarded as of Paramount authority. The Smritis came next in order of preference and then custom Custom even at the present day a material source of law. Hindus considered Vedas as the material source of all knowledge. Hindu law is not only divine, but also sacrosanct, inviolable and unchangeable. It cannot be questioned, challenged or violated.

2) Sources of Hindu Law - 

The sources of Hindu law may be classified under the following heads-

•  Traditional Sources and 
•  Modern Sources.

(1) Traditional or Ancient Sources of Hindu Law -

             The Ancient Hindu legal system recognized 4 sources of law.

     a) The Vedas (Shruti) -

               The primary and important source of Hindu law is Vedas. According to tradition the Vedas also called Shruti. Shruti means what is heard by the Sages (Rishis). The Vedas are the fountain-head of Hindu religion and law.  Veda means knowledge (from the root vid = to know). There are four Vedas.  Rig Veda, Yajur Ved, Sama Ved and Atharva Ved.

     b) The Smritis -

                Next to the Vedas, the Smritis are the most important source of Hindu law. The word Smritis literary means what has been remembered." Shruti represents direct words of God as heard by sages (Rishis),  while Smrities represent what was remembered from the word of God heard by Sages. Early Smrities were termed as Dharma Shastras ( 800-200B.C.) The oldest Smriti is Manusmriti.

     c) Digests and Commentaries -

              Several Digests and Commentaries were written on Smritis during the period Between 700 A.D. to 1700 A.D.  Notable Digests are namely -

       On Manusmriti- 

           Medhatithi has written Manubhashya (895-900 A.D)
           Govinda Raja  has written Manutika (1100 A.D)
           Kulluka Bhatta had written Manavata Muktavali (1250 A.D)

      On Yajnyavlkya Smriti- 

          Vigneshwara had written  the famous commentary Mitakshara (1100 A.D)
          Visvarupa  had returned Balakrida (900 A.D)
          Aparka had written Aparaditya (12000 A.D)

     d) Custom -

              Custom is the oldest form of lawmaking. Manu recognized custom to be transcendent law. Custom means "Achara or Usage", a Traditionally Followed long practice. Custom is a Bonafide practice being observed by people in general from generation to generations and the starting point of which is unknown. A custom to be valid, it must be ancient, continuous, reasonable, moral and not contrary to the statutory law in force. There are different customs such as local custom, family custom and caste or community custom. See.... Requisites / Constituents of a valid Custom

See....Kinds of Custom

2)  Modern Sources of Hindu Law 

Modern sources of Hindu law are as follows -

     a)  Justice, Equity and Good Conscience 

       
              Equity, Justice and Good Conscience is the principle of English law. The common law tradition of applying the principle of "Justice, Equity and good Conscience", when the law is silent on a given point was conveniently applied by Britishers in their administration of justice in India. Later the Supreme Court of India applied the principles of Justice, equity and good conscience in the absence of any rule of Hindu law.

     b) Precedent as a Source of Hindu Law  

                Precedent means decision given by the superior courts is binding on inferior courts and to be followed in future in similar cases Doctrine of Precedent bring certainty, predictability and uniformity in law. See... Advantages of Precedent. 

Precedent is called to be a source of Hindu law in two senses -
   
         First -  practically all the important principles and rules of Hindu law have now been embodied in case law. In such matters, recourse to the original source is not necessary. Reference to leading decision is enough.


         Secondly, - Precedent is a source of law in the sense that by the purpose of judicial interpretation, doctrines, principles and rules of law stand modified or altogether new principles, doctrines and rules have been introduced in the body of Hindu law. For these principle doctrines and rules, the sources of authority is Precedent.

     c) Legislation as a Source of Hindu Law 

                Legislation is a vital source of modern Hindu law. During the British period, only very few legislations were passed touching personal laws of Hindus, in tune with the British policy of non-interference in the matters of personal status of native Indians.



See also... 

Can a Female be a Coparcener and Karta ?

Grounds for Reopening the Partition | Family Law