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hindu-law:part-1:source-of-hindu-law

Sources of Hindu Law

Hindu law, as understood in the ancient times, was not the command of the political sovereign of community. Rather it was the command of the Supreme Being applicable to both the King and his subjects, i.e., the ruler and the ruled. The king and his subjects were equally subjected to the law. In order to bring certainty to them, the laws were codified by the writers of Dharmashastra. Hindu law was never visualized as a permanent legal code applicable for all times and places. Provisions dealing with divorce and inheritance were revised depending on region, community and the ethos of the times.

Hindu law grew spontaneously and silently in response to the needs of society and its people whose habits of life were marked to a certain extent with their moral sense and duties. Hindu law is believed to be of divine origin, being derived from the Vedas, which are the revelations of the Almighty Himself. Law, as understood by the Hindus, is a branch of Dharma, i.e., the duties and the rules of conduct (moral, religious and political) enjoined by the God himself. Law, according to Hindu conception, is the rule of conduct authoritatively imposed by the divine power as proper for man, as a being capable of external existence governing all of his activities, public and private, and affecting inseparably, his spiritual and temporal interests.

The concept of Hindu law is deeply rooted in Hindu philosophy and Hindu religion. The ancient Hindu social structure and its continuance in modern times is, to a great extent, outcome of the Hindu philosophy and religion. Hindu law, as understood in the ancient times, was not the command of the political sovereign of community. Rather it was the command of the Supreme Being applicable to both, the king and his subjects, the ruler and the ruled. The king and his subjects were equally subjected to the law. “Within this scheme of ancient Indian law, the king did not have significant authority to interfere with the personal laws of the people. In fact, the law did not derive its sanction from any temporal power; the sanction was self contained. Both the king and his subjects were equally subject to the rule of law formulated and enunciated by the sages. He executed, but seldom, if ever, formulated law.”:UC Sarkar: Epoch in Hindu Legal History

According to Mayne, Hindu law is the law of smritis as expounded in the Sanskrit commentaries and digests which, as modified and supplemented by customs, is administered by the courts. Till about the last century, two extreme views were entertained as to the nature and origin of the Hindu law. According to one view, it was legislation by sages of semi-divine authority or, as was put later, by ancient legislative assemblies. According to the other view, the smriti law does not, as a whole, represent a set of rules ever actually administered in Hindustan. It is, in a great part, an ideal picture of that which, in the view of Brahmins, ought to be the law. In ancient society, the Hindu sages were the leaders of the community. They were highly respected for their sanctity and their thoughtful learning. The rules laid down by them formed the basis on which the society was organized. In addition to their religious duties, the rules so propounded by them served as a code of ethics and morality. They also governed social matters, and matters relating to politics and government.

What is ordinarily understood as Hindu Law is not the customary law of the country like the Common Law of England. Neither is it a statute law, in the sense that some king or legislature framed the law, and enforced its acceptance by the people. The Hindu Law, as commonly understood, is a set of rules contained in several Sanskrit books, which the Sanskritists consider as books of authority on the law governing the Hindus1).

Hindu Law in view of noted Jurists In ancient India, not only was there tremendous development of mathematics, astronomy, medicine, grammar, philosophy, literature etc., there was also tremendous development of law. This is evident from the large number of legal treatises written in ancient India (all in Sanskrit). Only a very small fraction of this total legal literature survived the ravages of time, but even what has survived is very large. Justice Markandey Katju

Hindu Law, in view of Sir Henry Maine, has the oldest pedigree of any known system of jurisprudence. Law was identified with dharma and was supposed to have its origin from the God himself. “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.“ Sir Henry Maine

Some celebrated jurists are of the view that law is enforceable part of dharma. It is dharma itself and is of divine origin. It is unlike the Austinian concept of law where law is taken to be the supreme command of the sovereign in a political society. Dharma does not emanate from the sovereign. The sovereign himself is not exempt from dharma. The term ‘dharma’ generally includes all kinds of rules – religious, moral, legal, physical, metaphysical and scientific, in the same way as the law does in the widest sense. Dharma has been defined as “what is followed by those learned in the Vedas and what is approved by the conscience of the virtuous who are exempt from hatred and inordinate affections.” Manusmriti

The source of dharma is the Veda, as well as the tradition [smriti], and practice of those who know the Veda. [Gautama Dharmasutra 1.1-1.2]

The dharmashastras dealt with both procedural and substantive law, offering rules for recording and evaluating evidence, while at the same time they described the laws that governed economic transactions and those that regulated the relationship between masters and servants, to name a few……….The king was the chief adjudicator of both trial and appellate matters (civil and criminal), which he heard directly. The king was obliged to follow the dharmashastras, although they conferred to him the power to recognize customary rules, abrogate old laws and promulgate new ones. Ashutosh Dayal Mathur2)

The whole Veda is the (first) source of the sacred law, next the tradition and the virtuous conduct of those who know the (Veda further), also the customs of holy men, and (finally) self-satisfaction (Atmanastushti). The Veda, the sacred tradition, the customs of virtuous men, and one's own pleasure, they declare to be the fourfold means of defining the sacred law.

Manu says that “the Vedas, the smriti, the approved usages and what is generally agreeable to one’s soul or good conscience when there is no other guide, the wise have declared to be the quadruple direct evidence of dharma or law and other means of securing good. Dharma when violated verily destroys, dharma when preserved, preserves, therefore, dharma should not be violated, least the violated dharma destroys us.” Yajnavalkya says that “the shruti, the smriti, the approved usage, what is agreeable to one’s soul or good conscience and desire sprung from due deliberation are ordained the foundation of dharma (law).”

Sources of Hindu Law

The Shrutis or Vedas, the Smritis or the institutes of the sages, customs and the commentaries and digests are the various sources of Hindu Law.

Shruti

Shruti literally means ‘that which has been heard’. The word is derived from the root ‘shru’, which means ‘to hear’. Shrutis are believed to the very word of the God. In theory, it is the primary source of Hindu law and is believed to be the language of the divine revelation through the sages. It is believed that some of the Hindu sages had attained the spiritual heights to such an extent that they could be in direct communication with the God. Thus, the God himself revealed the sacred law to them.

Vedas

Vedas are at the root of all the Sastras of Hinduism. Shrutis include the four Vedas, namely, Rigveda, Yajurveda, Samveda and Athravaveda along with their Brahmanas. The Brahmanas are like the appendices to the Vedas. The Vedas primarily contain theories about sacrifices, rituals, and customs, certain rights and duties, forms of marriage, requirement of a son, inheritance, partition etc.

Each of the Vedas has two parts, namely, Samhita and Brahman. The mantras are embodied in Samhita part and their meanings and their methods of application are embodied in Brahman part. The mantras from Samhita parts are recited during Yogmas and in what Yogmas and in what manner these mantras are to be uttered, are indicated in the Brahman parts.

Upanishad

Some specified portions of Vedas are known as Upanishad. As it contains the gist of Vedas, it is also known as Vedanta. It spreads over all most all the Yogmas. It prescribed the method by which one can get happiness in this world and beyond that. There are eleven Upanishads, viz., Isha, Kena, Katha, Prashna, Mundak, Mandukya, Aitariya, Taitiriya, Chhandogya, Brihadaranyak and Shwetashwatara.

Smriti

The term ‘Smriti’ literally means what has been remembered. Smritis consist of compilations handed down by the sages of ancient times. Smritis constitute the main source of Hindu law. In due course, several commentaries came to be written by reputed authors on Smritis. These commentaries occupied the place of importance amongst the sources of Hindu law. It is well recognized that the rules of law enunciated in these commentaries should be treated with respect in places where respective commentaries prevail.

With Smritis, a systematic study and teaching of the Vedas started. Many sages, from time to time, wrote down the concepts given in the Vedas. Therefore, it can be said that Smritis are a written record of the knowledge of the sages.

Immediately after the Vedic period, a need for the regulation of the society arose. Thus, the study of the Vedas and the incorporation of local culture and customs became important. It is believed that many Smritis were composed in this period and some of them were even reduced to writing. If the text of the Smritis conflicts with any of the Vedic texts, the former is to be disregarded. According to the ancient sage Vyasa, if there is a conflict between the Vedas and the Smriti, the Vedas should prevail.

If there is divergence of opinion among the Smritis, the court should consult the prevailing practice among the people, while deciding a case. If there is a clear usage to the contrary, the Smriti must yield to such usage.[Shyam Sunder Prasad Singh vs State of Bihar3)]

Medhatithi in his commentary on the Manusmriti wrote that the Smritis were only codifications of the existing customs. The same has been said in the Smriti Chandrika (which is the basic text of the Dravid School of Mitakshara) and the Vyavahar Mayukh (which is a basic text of the Bombay School of Mitakshara). This, however, is not a very accurate view. Though, no doubt, the smritikars and commentators relied heavily on customs. They also used their creativity to develop the law to make it more just and rational according to their own notions. [Justice Markandey Katju]

Kinds of Smritis

There are two kinds of Smritis viz. Dharmasutras and Dharmashastras. Their subject matter is almost the same. The main difference between them is that the Dharmasutras are written in prose, in short maxims (Sutras) and the Dharmashastras are composed in poetry (Shlokas). However, occasionally, we find Shlokas in Dharmasutras and Sutras in the Dharmashastras.

Out of the numerous Smritis, the first and foremost in rank of authority is Manu Smriti. There is, however striking resemblance and agreement among the Smritis on many questions and they purport to embody one traditional law. No greater authority was attached to one than to another Smriti which was considered as of the highest authority.

However, Yajnavalkya Smriti is considered to be more liberal and forward looking than Manu Smriti. The Code of Yajnavalkya is mainly founded on Manu Smriti, but the treatment is seen to be more logical and synthesized. On a number of matters and particularly on the question of women's right to inheritance, it is decidedly more liberal than Manu’s. In his treatise, there is greater recognition of the rights of women.

Commentaries and digests

After Shrutis came the era of commentators and digests. Commentaries (Tika or Bhashya) and digests (Nibandhs) covered a period of more than thousand years from 7th century to 1800 AD. The commentaries and digests laid down codes of rules on different branches of law. They form an important part of the authorities on Hindu Law.

The commentaries and digests were written or compiled by later writers with the object of reconciling discrepancies in the sayings of the sages, and laying down complete and consistent codes of rules on different branches of law. Thus, the commentaries and digests form an important part of the authorities on Hindu law. Recourse must be had to commentaries and digests for final authority in deciding questions of law. It is these commentaries which have given rise to the different schools of Hindu law. The Mitakshara, which regulates most of the issues on Hindu law, is itself only a commentary, and so are the Dayabhaga and the Vyavahara Mayukha, which are of supreme authority in the Provinces of Bengal and Bombay respectively.

According to Morley, “recourse must be had to commentaries and digests for final authority in deciding questions of law.”

According to NR Raghavachariar, “commentaries and digests have played an important part and have in effect superseded the smritis in a large measure.”

Leading commentaries—The leading commentaries are as following—

  1. Dayabhaga by Jimutvahan;
  2. Mitakshara by Vijaneshwara;
  3. Virmitrodaya by Mitra Misra;
  4. Vivadchintaman by Vachaspati;
  5. Vivad Ratnakar by Chandeswar;
  6. Dayatattra by Raghunandan;
  7. Dayakram Sangrah by Srikrishna;
  8. Smriti Chandrika by Davanna Bhatta;
  9. Parasara Madhviya by Madhvacharya; and
  10. Vyavhara Mayukha by Nilkantha.

Dattaka Mimansa and the Dattaka Chandrika are the main the commentaries on the law of adoption.

According to Sir William McNaughton, “in questions relative to the law of adoption, the Dattaka Mimansa and the Dattaka Chandrika are equally respected all over India and the former is held to be the infallible guide in the Provinces of Mithila and Benares.”

According to Justice Dwareka Nath Mitter, “Dattaka, Chandrika and the Dattaka Mimansa are undoubtedly entitled to be considered, and have been always considered, as the highest authorities on the subject of adoption.”

The commentaries, in the present days, occupy an important place as the source of Hindu law. Unless it can be shown that they are in direct violation of established rules of law as propounded by the Shastras, or ancient usages proved to exist in a particular locality or among a particular class, their authority should not be ignored simply on the ground that some of the arguments advanced by them may be open to criticism.

Dharmasutras

The dharmasutras were written during 800 to 200 BC. They were mostly written in prose form, but also contain verses. They were meant to be training manuals of sages for teaching students. They incorporate the teachings of the Vedas. They generally bear the names of their authors and sometime indicate the shakhas to which they belong. Some of the important sages whose dharmasutras are known are Gautama, Baudhayan, Apastamba, Harita, Vashistha, and Vishnu. Dharmasutras explain the duties of men in various relationships. They are based on the teachings of Vedas, and the legal decisions given by those who were acquainted with Vedas and local customs.

Customs

The fourth source of Hindu Law is custom or usage. Under the codified Hindu Law, the expressions ‘custom’ and ‘usage’ are defined as any rule which, having been continuously and uniformly observed for a long time has obtained the force of law among Hindus in any local area, tribe, community, group or family. Custom is thus a rule which, as a result of a very long usage, has obtained the force of law in a particular community or in a particular district. Custom thus plays a very important part in Hindu Law. Custom is also referred to as sadachara.

The Sanskrit word which is used by Manu and Yajnavalkya for custom is sadachara or the usage of virtuous men. Sadachara or approved usage should not be contrary to Dharma, though in India, custom or usage having the force of law will override the texts of law-givers4).

According to Article 13 (3) (a) of the Constitution, law includes custom or usage having the force of law. Article 13 (1) declares that the pre-constitutional laws, so far as they are inconsistent with the fundamental rights shall, to the extent of such inconsistency, be void. [Madhu Kishwar vs State of Bihar5)]

Usage:A 'usage' is merely a customary or habitual practice; a 'convention' is a practice that is established by general tacit consent. Usage denotes something that people are accustomed to do; 'convention' indicates that they are accustomed to do it because of a general agreement that it is the proper thing to do6).

The concept of long continuance and passage of time is inbuilt in the expression 'usage'. [Commissioner vs Vedantha Sthapna Sabha7)]

Most of the Hindu law is based on customs and practices followed by the people all across the country. Even Smritis have given importance to customs. They have advised the kings to give decisions based on customs after due religious consideration. It may be either a family or a local custom or usage. A local custom is one, which binds all persons in the local area where it prevails. Local custom differs from a family custom inasmuch as the latter binds only the members of the family.

Custom is authoritative; it stands in the place of law, and regulates the conduct of men in the most important concerns of life. [Bhimashya vs Janabi8)]

In the case of Salekh Chand vs Satya Gupta9), it has been held that ‘custom’ is a rule which in a particular family or a particular class or community or in a particular district has from long use, obtained the force of law.

Custom cannot be extended by analogy. One custom cannot be deduced from another. It cannot be a matter of theory, but must always be a matter of fact. It cannot be enlarged by parity of reasoning. Custom is most often the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public morality. Any rule which has got the approval of custom raises a presumption that it also deserves to obtain the sanction of law. [Thankamma vs N Kunjamma10)]

Family Custom

In dealing with family customs, the consensus of opinion among members of the family, the traditional belief entertained by them and acted upon by them, their statements and their conduct would all be relevant. It is only where the relevant evidence of such a character appears to the courts to be sufficient that a specific family custom pleaded in a particular case can be held to be proved. Custom binding inheritance in a particular family has long been recognized in India11).

About the Author

Adv. Sunil Sharma is a writer for about 25 years and has authored more than 40 books on various subjects including Jurisprudence, Hindu Law and Environmental Laws.

1)
Mookka Kone vs Amma Kutti, 51 Mad 1
2)
Medieval Hindu Law: Historical Evolution and Enlightened Rebellion Oxford University Press, 2007
3)
1980 Supp. SCC 720
4)
Mayne on Hindu Law and Usage
5)
AIR 1996 SC 1864; JT 1996 (4) SC 379; 1996 (3) SCALE6 40
6)
Herbert W. Horwill: The Usages of the American Constitution
7)
2004 6 SCC 497
8)
2007 (2) AWC 1432 (SC); (2007) (2) JCR 34 (SC)
9)
2008 13 SCC 119
10)
AIR 1986 Ker 134
11)
Mulla’s Principle of Hindu Law


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Created on 2021/01/14 16:17 by LawPage • Last modified on 2021/04/09 22:25 (external edit)