Sources of Hindu Personal Laws

Introduction

Hindu law is a systematic amalgamation of personal laws on marriage, adoption, inheritance and so on, sourced from sacred Hindu texts and traditions passed on through generations. It is a set of guidelines and rules forming the core of the Hindu customs and practices for various domains of life such as inheritance of property, partition of land, marriage, divorce, adoption along with enshrined principles of dharma and religion.

Sir Dinshah F.Mulla’s ‘Principles of Hindu Law’, defines ‘Hindu law’ in the following words:

 “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.”

Hindu law[1] was the legal system illustrated in Dharmaśāstra texts, impacting both the procedural as well as substantive law which governs the society today. Along with Dhramshastras there are other several sources of Hindu law principles and derivates which shall be analysed for a detailed understanding of the background of personal laws.

Sources of Hindu Law

The sources of Hindu law can be categorised into two broad categories for further deliberations:

1. The ancient sources: comprising of smriti, shruti and customs
2. The modern sources: comprising of principles of justice, equity and good conscience, legislations and precedents

Through this article, each source shall be discussed individually to highlight its importance and the role it plays in the development and codification of the Hindu Laws.

I. Ancient Sources

The ancient sources comprise of shurti, smriti, digests and commentaries and customs, which systematically developed and compounded the principles of the contemporary Hindu law.

1. Shruti:

the word literally translates into what has been heard, derived from the Sanskrit word ‘shru’ which means ‘to hear’. It is one of the most ancient and prolific sources of Hindu law which covers all the wisdom and divine revelation through the holy sages that was verbally passed from one generation to another through the recollection of what has been heard. The Vedas are a codified form of Shruti itself, all the hymns, procedural rituals, duties and principle values passed on through the memory were later codified and written into four broad parts called the Vedas. There are four vedas in the Hindu literature namely- Rig Veda (containing hymns in Sanskrit to be recited by the chief priest), Yajurva Veda (containing formulas to be recited by the officiating priest), Sama Veda (containing verses to be chanted by seers) and Atharva Veda (containing a collection of spells and incantations, stories, predictions, apotropaic charms and some speculative hymns). Further each Veda is also sub- categorised into three parts Sanhita (hymns), Brahmin (duties and procedures of performing them) and Upanishad (underlying principles and essence of the duties)

2. Smriti:

It translates into ‘the memory’ or ‘what was remembered’ the era of smriti is usually referred to as the most crucial time since all the revelations and remembrance of the saints were meticulously organised and preserved creating a new phase in Hindu law through categorical development. The smritis were studied in a two fold manner: firstly a prose style and secondly a poetry style

Smritis are divided into two:

 a. Dharam Surtra:- Dharam sutra are famous of Gautam, Buddhyan, Apastamb, Harit, Vishnu and Vasith.

b. Dharam Shashtra:- Are famous for Manu Smriti, Yagyavalkya Smriti, Narad Smriti etc.

the Manu smritis comprises of 12 detailed chapters, while the Yagyavalkya smriti is divided into 3 organised and brief parts.. Narad Smriti is considered to be the first legal structure consisting of a system of judiciary, courts and justice.

3. Digests and Commentaries:

The period of writing down the Hindu laws and principles lasted for more than thousand years till 1800 AD, this was basically a time of unification of the texts and resolving the conflicts or contradictions that were reflected in the collective information of Shruti and Smriti. Hence, it can also be concluded that, this period marked a new age for the ancient sources where in for the first time an attempt was made to make the texts universal and self-explanatory.

This era of compiling the texts into digests, also opened a forum for commentaries inviting various interpretations on the established principles and literature, giving rise to various schools of law within the Hindu religion. The commentaries played a role of diversification of opinion by creating various schools capable of offering different rationales behind the texts. The Dayabhaga and Mitakshira school of law were considered to be the most important ones as can be perceived through the existing laws, where Mitakshira principles still hold great relevance.

4. Customs:

The last source of the ancient times were the customs or the norms and practises of those times which are instilled in the culture of the Hindus. It is prioritised[2] over written texts and literary evidence as it represents particular rules or norms followed by a family or community over a period of time obtaining the force of law.

The Indian Courts have recognised three categories for a valid custom:

(a) Local custom – prevailing in a particular region or locality.

 (b) Class custom – customs specific to a particular class of society

(c) Family custom – binding upon the members of a particular family and their kin.

II. Modern Sources

It refers to the sources of law prevalent in contemporary times such as the principles of natural justice, codified legislations under the Indian Legal System and the various precedents passed by the judiciary.

1. Justice Equity and good conscience:

This principle refers to the concept of natural law or justice, implying that the justice should be served to the appellants in the court of law, even if a specific provision doesn’t exist in the codified laws for the specific situation. Hence, this principle becomes the paramount source of Hindu Law, as it encourages the extension of the existing laws to suit the specific situations and amend the laws as per the necessity.

The court in a landmark judgement[3] held that:

“Where there is lack of rules of Hindu Law over any subject, there court should pronounce their decision on the basis of principle of equity, justice and good conscience.”

2. Legislations:

The legislations are acts passed by parliament codifying the general principles and rules into a specific statute. Some aspects of Hindu Law were also codified during the British era such as The Hindu Marriage Act, 1955, The Hindu Adoptions and Maintenance Act, 1956, The Hindu Succession Act, 1956, The Hindu Minority and Guardianship Act, 1956 and so on.

3. Precedents:

The system of hierarchy of courts was introduced specifically during the British rule where the principle of treating the like cases alike was established. Generally, the decision of Supreme Court, High Court, Privy Council have the effect of precedent over the subordinate court. Hence, the precedents act as the established set of guidelines and directions which are binding on the courts acting as an influential source for the personal laws.

Conclusion

The major concern pointed out by the experts in Hindu law is that the definition of Hindu itself is nowhere defined in the law; its scope of applicability is limited to the negative definition given by the statutes. Further, the Hindu law like other personal laws is criticised for its orthodox principles and limitation towards progression. It is considered to be complicated and highly reflective of the ancient patriarchal society with existing gender biases and conformist Hindu customs.

It is pertinent to codify the Hindu Laws by aiming towards removing the ambiguities and lacunas in the provisions related to inheritance of property, partition of land, adoption of children, divorce and marriage guidelines and so on. The entire concept of HUF households and businesses is based on the conventional Hindu principles of joint family and an authoritarian central control by the male elders of the family; which in the contemporary progressive society seems to be dysfunctional and redundant requiring immediate amendments.

The scholars suggest that the Hindu Law should be amended after rigorously analysing and comparing other personal laws in the country to draw inspiration and incorporate the provisions that might meet the requirement of the present times.

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References:

[1] Diwan,P., Modern Hindu Law, 17th Ed., Allahabad Law Agency, 2006

[2]  Collector of Madurai v. Mottaramlingam 12 M.I.A 397 (1868)

[3] Gurunath Alias Bhimaji V. Kamlabai (1955) AIR 206