CONCEPT OF HINDU LAW:
Hindu system of law has the most ancient pedigree of the known systems of law. If the Vedic period is accepted to be 4000 to 1000 B.C., Hindu law is about 6000 years old. In this span of 6000 years, it has passed through various phases. Yet. It has existed with remarkable durability. Law exists to subserve the social need and, therefore, it is always desirable that law should conform to the changing needs of society and life. Just as society progresses and undergoes changes, so must the law. In this, Hindu law, despite the fact that before the advent of modern era, there was no direct law-making machinery, has shown remarkable adaptability. Originally, it came to subserve the needs of pastoral people and now it has come to subserve the needs of modern welfare society.
SOURCES OF HINDU LAW:[i]
Hindu law can be divided in the following sources:
- ANCIENT SOURCES:
- Digests and Commentaries; and
- MODERN SOURCES:
- Precedent, and
- Equity, justice and good conscience.
- SRUTI: The name is derived from the root ‘Sru’ which signifies ‘what is heard’. It is believed to contain the very words of deity revealed to sages. The Srutis consist of four Vedas, namely, Rig Veda, Yajur Veda, Sam Veda and Atharva Veda and 18 Upanishads dealing mainly with religious rites and the means of attaining true knowledge and salvation.
- SMRITI: It means ‘what was remembered’. It is believed to be the recollection of Rishis handed down to us, constituting the principal sources of Hindu law. Smritis are embody what sages remember through revelation. Smritis are divided into the Primary and Secondary Smritis. The Primary Smriti is further classified into Dharma Sutras and Dharma Shastras.
- DIGEST AND COMMENTARIES: The commentaries and digests were also the records of the traditional customs recorded in the Smritis as well as the new customs claiming for and found worthy for recognition. The commentaries explained, modified and enlarged the traditions recorded therein to bring them into harmony and accord with prevalent practices. The principal commentaries are – (1) Mitakshara, (2) Dayabhaga, (3) Viramitodaya, (4) Vivada Chintamoni, (5) Vivada Ratnakara, (6) Dayatattwa, (7) Dayakramasangraha, (8) Smriti Chandrika, (9) Parashara Madhaviya, (10) Vyavhar Mayukha. Out of all the commentaries, the Mitakshara and Dayabhaga occupy a very high position from the point of their acceptability as authoritative sources of law.
- CUSTOMS: It is regarded as one of the most important sources of law. In Section 3(a) of the Hindu Marriage Act, 1955 the expression ‘custom’ and ‘usage’ has been defined. It signifies 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 or tribe, community, group or family. The rule has to be certain and not unreasonable or opposed to public policy.
Essential elements of a custom are:
(i) The custom must be ancient. The particular usage must have been practised for a long time and accepted by common consent as a governing rule of a particular society.
(ii) The custom must be certain and should be free from any sort of ambiguity. It must also be free from technicalities.
(iii) The custom must be reasonable and not against any existing law. It must not be immoral or against any public policy and
(iv) The custom must have been continuously and uniformly followed for a long time.
Indian Courts recognize three types of customs viz:
(a) Local custom – these are customs recognised by Courts to have been prevalent in a particular region or locality.
(b) Class custom – these are customs which are acted upon by a particular class.
(c) Family custom – these are customs which are binding upon the members of a family.
- LEGISLATION: This source has played a significant role in the development of Hindu law. Most of them are in the direction of reforming Hindu law and some of them supersede Hindu law. It consolidated various principles of Hindu law scattered in different parts of the country. Many important Acts have been passed which have the effect of changing the religious nature of Hindu law at several instances. For example, The Caste Disabilities Removal Act, 1850, Hindu Marriage Act, 1955, Hindu Succession Act, 1956 etc.
- PRECEDENT: A precedent is also a source of law and the courts are bound to follow these precedents. In Luhar Amritlal v. Doshi Jayantilal, AIR 1960 SC 964, Supreme Court observed that the judicial decisions have become part and parcel of Hindu law. Judicial decisions have modified and supplemented the pure Hindu law and they have emerged as important sources of the present Hindu law.
- EQUITY, JUSTICE AND GOOD CONSCIENCE: Equity means the principles or rules emerging in the course of administration of justice particularly in those cases where on account of inadequacy of law, the judges evolve certain general principles on the basis of justness, fairness and propriety. The Supreme Court has recognized equity, justice and good conscience as a source of law in Gurunath v. Kamlabai, (1951) S.C.R. 1135 where it observed that it is now well established that in the absence of any rule of Hindu law, the courts have authority to decide cases on the principles of justice, equity and good conscience unless in doing so, decision would be repugnant to or inconsistent with any doctrine or theory of Hindu law.
[i] DR. PARAS DIWAN, MODERN HINDU LAW27-53 (Allahabad Law Agency 2020).
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