SOURCES OF FAMILY LAW

The term of ‘sources of law’ has many meanings. It can be any authority which issues rule of conduct. It can also mean social conditions which lead to making of laws. It can also mean the material or evidence from which rules and laws are derived.   

Family law is a body of law that governs issues involving family relationships like marriage, divorce, adoption, maintenance, custody of child and so on. In India, the family law is mainly divided into the Hindu Family Law and the Muslim Family Law.

SOURCES OF HINDU LAW

The sources of Hindu Law are divided into two categories:

  1. The Ancient Sources of Hindu Law.
  2. The Modern Sources of Hindu Law.
  1. Ancient Sources:
  2. Shruti.
  3. Smriti,
  4. Digests and Commentaries.
  5. Customs.
  • Modern Sources:
  • Justice, equity and good conscience.
  • Precedent.
  • Legislation.

ANCIENT SOURCES OF HINDU LAW

  1. Shruti:

The word ‘SHRUTI’ has been derived from the word ‘SHUR’ which means ‘TO HEAR’.   Shurtis are the most important and primary source of Hindu Law. It is also considered to the divine source of law. It came into existence long before writing. It was considered that the Brahmins were in directed communication with the God and these Shurtis were revealed to them in the form of Vedas. There are four Vedas, namely,

  • Rig Veda
  • Yajur Veda
  • Sama Veda
  • Atharva Veda

          Each of these Vedas was divided into three parts- Sanhita, Brahmin and Upanishad.

  • Rig Veda- It is the first and the oldest Veda. It consists of 10600 verses and is divided into 10 mandalas. The Rig Vedic mandalas mainly deal with cosmology and deities.
  • Sama Veda- Sama Veda is also known as the Veda of chants and melodies. It consists of 1549 verses and is divided into two Upanishads.
  • Yajur Veda- Yajur Veda consists of chants and mantras related to ritual offerings.
  • Atharva Veda- Atharva Veda consisted of the daily procedures of life. It enumerates 730 hymns, 6000 chants and 20 books.
  1. Smriti:

Smritis are the second most important source of Hindu Law. They come next to the Vedas. Smriti is derived from the word ‘smri’ which means to ‘to remember’. Smriti means what was heard and remembered. It consists of those parts of Shruti which the sages which sages reduced into writing in their own word having forgotten them in their original form. Smritis are categorized as:

  • Dharmasutras
  • Dharmashastras

The early Smritis were known as Dharmasutras and contained laws and rules related to caste system, public relations, economic affairs, government and so on.

Dharmashastras contained laws and rules related to the moral code of conduct.

Some of the famous Smritis are Manusmriti and Yajnavalkya smriti.

  1. Digests and Commentaries:

The third source of Hindu Law are digests and commentaries. Digests and commentaries covered a period of more than 1000 years. The commentaries commented on Smritis. In the later period, digests which contained the synthesis of various Smritis came into existence.

  1. Customs

The fourth and last of the ancient sources of Hindu Law are customs. Customs form one of most important and oldest sources of Hindu Law. Customs include traditional practices, activities and so on. The importance of customs as source of law comes after Shruti and Smriti but when it comes to usage, they come first. However, these conditions must be fulfilled to declared any custom as valid:

  • The custom must be an ancient one and must have been accepted and practiced for generations.
  • The custom must be certain and not ambiguous.
  • The custom must not be unreasonable and it must be consistent with the existing laws.
  • The custom must have been continuously followed.

MODERN SOURCES OF HINDU LAW

  1. Justice, equity and good conscience:

There may be certain situations where there is no existing law to settle a dispute. In such a case, the Court may rely on the concept of justice, equity and good conscience. Justice, equity and good conscience means that concept of fairness is applied to each case after considering the totality of the circumstances.

  1. Precedents:

Precedents mean the decisions of the higher courts which that are followed in the subsequent cases. Eg. The decision of the Supreme Court and High Courts is binding on all lower courts.

  1. Legislations:

Legislations are the Acts of the Parliament. Certain legislation which regulate the Hindu Law are Hindu Succession Act, 1956, Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956, Child Marriage Restraint Act,1929 and so on.

SOURCES OF MUSLIM LAW

The sources of Muslim law are divided into two main categories:

  • Primary Source
  • Secondary Source
  1. Primary Source:

The primary sources of Muslim Law are:

  • Quran
  • Sunnah
  • Secondary Source:
  • Ijma
  • Qiyas

PRIMARY SOURCE

  1. Quran

Quran is the most important source of law for Muslims. Quran is a directed revelation from God to Prophet Mohammed. It contains laws, rules and regulations regarding moral conduct of Muslims and various socio-economic matters. Quran is not a codified law but only contains rules that regulate a man’s conduct with himself and God.

  • Sunnah

Sunnah is the most important source of Muslim law after Quran. Sunnahs are the sayings, practices and conduct of the Prophet. Since, the Quran may not contain every rule that regulates the conduct of Muslims, they refer to Sunnah in such situations.

SECONDARY SOURCE

  1. Ijma

Ijma is the third most important source of Muslim Law. Consensus of various jurists on any legal matter is known as Ijma. There is a conflict of opinion among jurists whether Ijma can be regarded as a source of Muslim Law or not?

Shia jurists regard it as secondary source while as Sunni jurists regard it as an important source of law.

  • Qiyas

Qiyas is the fourth source of Muslim Law. It is reasoning and deduction by analogy from the three main sources of Islamic Law, i.e; Quran, Sunnah and Ijma.

REFERENCE:

  1. Hindu Family Law- Paras Diwan
  2. Muslim Law- Fayzee
  3. Legal Services India- http://www.legalservicesindia.com/article/329/Sources-of-Hindu-Law.htmlhttp://www.legalservicesindia.com/article/329/Sources-of-Hindu-Law.html

https://www.legalserviceindia.com/legal/article-1876-sources-of-muslim-law.html

Aishwarya Says:

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