Sources Of Hindu Law

Hindu Law

Hindu law is nothing but the concept of dharma, the concept of dharma in Hindu law is not defined precisely but it has come to mean the way of life a person lives and enjoys, which includes every aspect of his life. Right from the birth till the death of a person everything is included and governed by dharma. In other words, dharma is sometimes said to be the guiding force for all the Hindus. It contains rules regarding the proper conduct of people, it preaches love for everyone and contains the duties that every individual has towards the society as a whole. Dharma also was the major law which the kings of ancient times, especially the Hindu kings used to govern the people. All the laws which were passed had to be in conformity with the dharma, in simple terms the king was not above dharma and had to rule according to dharma.

Scope of Hindu law

Essentially Hindu law consists of all the activities and the practices that people have been following from time to time and thus becoming customs, however as the society progressed Hindu law was majorly used to establish the brahmin dominance, the concept of caste system is also an example of this under which the Brahmins were placed at the top and the kings who had the real power below them.

Sources of Hindu law

Hindu law is made up of various text and scriptures, the growth of Hindu law was both natural and sometimes helped by the legislation that was enacted during the British period. Sources of Hindu law can be divided into ancient sources and modern sources.

Ancient sources include religious text such as shrutis and the smritis, apart from that there are various Upanishads which also were a part of Hindu law.

Shruti as a source of law

Shruti means to hear, it is derived from the word “shur” which means to hear. Shrutis are considered to be the major source of Hindu law. Another term for Shruti is Veda. according to Hindu law, there are four Vedas namely, Rigveda, Samveda, Yajurveda, Atharveda. The brahmins used to pronounce what is written in these Vedas to the people. Since brahmins were considered to be knowledgeable people whatever they said was of supreme importance and it was considered to be the law of the land, therefore shrutis contain what is written and pronounced by the brahmins. Brahmins also tell us about the duties that the individual has to follow and how to perform these duties. The Upanishads contain the essence of these duties.

Smriti as a source of law

Smriti is derived from “smri” which means to remember. Smrtis are those parts of shrutis which the sages forgot to tell in their original form and therefore wrote down in the language which they were familiar with, therefore shrutis are considered to be the basis of smritis. There are 2 kinds of smritis first is Dharmasastras and the other is Dharmasutras. Dharmasastras contains the rules regarding the moral code of conduct for Hindus, whereas Dharmasutras contains the rules regarding government, caste, the relationship between people, economic affairs, eating habits, etc. There are many smritis that one can not count but the two famous smritis are Yajnavalkya smriti and manusmriti. Manusmriti is also considered to the first law book written by Manu.

Digests and Commentaries

The third most important source of law is the digests and the commentaries written by various authors of Hindu law. Commentaries generally comment on the smritis, the area of commentaries is from the 7th century to 1800 AD. Commentaries also laid the foundation of various schools of Hindu law. Digests contain the important aspects of all the smritis and discussed their reconciling and contradictions. Various digests and commentaries have been written by various authors on the two most famous smritis that is manusmriti and yajnavalkya smriti namely.

On manusmriti

  1. Medhatithi has written Manubhasya.
  2. Govind Raja has written Manuka.

On yajnavalkya

  1. Vigneshwara has written the famous commentary on Mitakshara.
  2. Arpaka has written Aparaditya.

Customs

Customs are the most important and the oldest form of lawmaking, customs mean the traditions, practices, activities, that people have been following for generations and overtime recognized as law. The essence behind considering customs as a major source of law is that since people follow customs and if some customs are not harmful to society then the state has no problem recognizing it. In order, that a custom becomes law there are some essentials which it may fulfill such as a custom must be valid, it should be in continuity, it should be followed by a large number of people and last it must not be discriminating and should not be opposed to public policy.

            Click Above

Indian law has recognized 3 types of custom namely:

  1. Local customs- These are the customs that are prevalent in a particular local area.
  2. Class customs- These are the customs that are prevalent amongst a particular class.
  3. Family customs- These are the customs that are binding on the members of the family.

Modern sources of Hindu law

After the arrival of British many changes were brought in the personal laws of Hindus and many legislations were also passed, the modern sources of Hindu Law the doctrine of justice equity good consciousness, legislation, and precedents.

Justice Equity and Good Consciousness

In cases where there was no proper law to settle the disputes nor there was an existing law, then the judges used to give judgments according to the concept of Justice Equity and Good Consciousness. This doctrine was based on the concept of fair play, this doctrine did not have a uniform application since thinking of one judge may be different from the other, however, this doctrine played a huge role in transforming the personal laws of the Hindus.

Legislations

The legislation means the acts of the parliament, various Acts were passed by the legislature such as the Child Marriage Restraint Act, 1929Hindu Successsion Act, 1956Hindu Marriage Act, 1955Hindu Minority and Guardianship Act, 1956. The legislation passed is binding upon all the other sources of law.legislation is codified this means it has been written in a proper way and it has to accepted and followed by all the people governing it. In modern times legislation is also called as the lawmaking body.

Precedents

After the establishment of British rule, courts were established and the hierarchy was introduced. Precedent means following the decision of the higher courts by the courts below it, if a particular case has already been decided, it seems reasonable to follow the same decision if the facts of the case are similar to the decided case. In today’s time, the decision of the supreme court is binding on all the made by other courts.

Schools of Hindu Law

There are two schools of Hindu Law namely:

  1. Mitakshara school
  2. Dayabhaga school

Mitakshara school

Mitakshara school derives its name from the commentary of Vijyaneshwara named Mitakshara. Mitakshara school contains rules regarding marriages, division of society into four castes, apart from this it contains rites and rituals that are to be performed during pregnancy, all these rites and rituals are considered sacred. Mitakshara school prohibits the marriage between a shudra and a brahmin, inter-caste marriages are allowed amongst the upper caste only.

Mitakshara school is subdivided into four major schools namely:

  • Banaras school

It is prevalent in North India expect the rural areas of Punjab, where this school has been modified according to the customary laws.

  • Mithila school

This school is prevalent in some areas of Northern Bihar.

  • Bombay school

This school was prevalent in western parts of the country mainly Gujarat and Maharashtra.

  • The madras or Dravida school

This school covers the whole of southern India including Karnataka, Tamil Nadu, and Andhra Pradesh.

Dayabhaga school

Dayabhaga school is prevalent in Bengal and Assam. Dayabhaga school professes benefit for the governance of the rules of succession.The immediate effect of this school was that there was an inclusion of many new people in the list of hires for succession which was not mentioned in Mitakshara school. Dayabhaga school preaches logic and reason rather than precepts and precedents. This school advocate for more practical and rational doctrines.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.