Sources of Hindu Law | 28 Sep 2023

Introduction

According to Henry Mayne, Hindu law has the oldest pedigree of any known system of jurisprudence,
and even now it shows no sign of decrepitude. Hindu law is one of the most ancient and prolific law in
the world.
It is a set of personal laws governing the social conditions of Hindus such as marriage and divorce,
adoption, inheritance, minority and guardianship, family matters, etc.

Sources of Hindu Law

Sources of Hindu Law can be divided into:

Ancient Source
Shruti (Vedas)
Smritis
Digest and Commentaries
Customs
Modern Source
Equity justice and good conscience
Legislation
Precedent

Ancient Sources

Shruti
It literally means ‘that which is heard’. The word Shruti is derived Sanskrit from the root “shru”
which means ‘to hear’.
The shrutis consist of 4 Vedas:
Rigveda (It is of oldest origin and consists of hymns of praise of the natural forces)
Yajurveda (It contains rituals and sacrifice mantras)
Samveda (Contains verses to be chanted by seers)
Atharvaveda (It is devoted to magic, spells and incantations)
Shrutis also consist of 6 Vedangas (The Vedanga are auxiliary disciplines of Hinduism that
developed in ancient times and relate to the study of the Vedas) and 18 Upanishads (deals chiefly
with religious rites and means of attaining true knowledge or Moksha).
Smriti
Smriti literally means "what is remembered". It can be said that Smritis are a written memoir of the
knowledge of the sages.
The smritis are believed to have originated from divine inspiration, not as direct words from God,
but as repositories of the wisdom and knowledge that sages recalled from their spiritual insights.
Smritis are of two kinds:
Dharmasutras (Prose Style) – It consists of short statements formulating broad and general
principles of common sense and justice.
Dharmashastra (Poetry Style) - It comprises of a variety of commentaries and treatises, the
smritis encompass guidance on individual duties, responsibilities, and ethical conduct within
oneself, towards one's family, and as a contributing member of society.
There are various Smritis among which the notable ones are:
Manusmriti
Yajnavalkya
Naradsmriti
Parashar Smriti
Digest and commentaries
Following the smritis, the next stage in the evolution of Hindu law involves the creation of
commentaries and digests that expounded upon the teachings and principles found in the smritis.
The two principal commentaries are:
Mitakshara – A commentary on Yajnavalkya Smriti by Vijneshwara.
 Dayabhaga – It is a treatise written by Jimutvahana which primarily focuses on inheritance
procedure.
In Balwant Rao v. Baji Rao (1921), the Privy Council held that commentaries do not enact law, but
they explain and interpret the law and are the evidence of customs prevailing at the time when
they were written.
Customs
Customs and practices have significantly influenced the development of legal systems around the
world, Hindu Law as well places significant emphasis on them.
Section 3(a) of Hindu Marriage Act, 1955 mentions it as “custom” and “usage” signify 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.
Provided that the rule is certain and not unreasonable or opposed to public policy; and
Provided further that in the case of a rule applicable only to a family it has not been
discontinued by the family.
A custom in order to be binding, must by its long and continuous usage have obtained the force of
law.
The Shrutis and Smritis are supposed to be largely based upon customary laws, on matters not
included under the Shruti and Smritis, customs played a vital role in determining the laws laid
down in that time.
No custom can be binding upon society if it is opposed to public policy nor immoral usages be
practiced and continued anymore, even if they are practiced by a section of community they
cannot be enforced by any court of law.
Essential of valid custom
Antiquity – A custom must be ancient or in use since time immemorial so that it may be
considered as a valid binding custom.
Certainty – The custom has to be clearly defined, it cannot be vague and confusing.
Reasonable – A custom should be considered sufficiently reasonable as long as it aligns with
the fundamental principles of morality within the jurisdiction of the state where it is
practiced.
Conformity with Law and public morality – A custom must not go against public policy and
law of the land. If the law makes it forbidden, it will not be considered a valid custom.

Modern Sources

Justice, Equity and Good Conscience

Equity is synonymous with equitable treatment, and contemporary judicial systems largely depend
on maintaining impartiality. This legal concept is firmly rooted in the principles of Justice, Equity
and Good Conscience.
Where the ancient sources do not explain a specific aspect, the same is governed by the principles
of Justice, Equity and Good Conscience.
In Gurunath v. Kamalabai (1951), SC held that in the absence of any existing Hindu Law, Judges
have the authority to decide the cases on the principle Justice, Equity and Good Conscience.
Legislation
Legislation, also known as the codified form of law, is also considered as a modern source of Hindu
law.
Prior to legislative enactments, different rules and practices were prevalent in different parts of the
country.
 Legislation becomes a necessity not only to attain uniformity of law but also to abrogate inhuman
and irrational practices.
Examples of important legislations on Hindu Law are:
The Child Marriage Restraint Act, 1929
The Hindu Marriage Act, 1955,
The Hindu Adoptions and Maintenance Act, 1956,
The Hindu Succession Act, 1956,
The Hindu Minority and Guardianship Act, 1956, etc
Judicial Precedent
Judicial precedents too form an inseparable source of Hindu Law.
The term “Precedent” means following the decision of a higher court by a lower court if the
decision involves a common question of law.
The SC verdicts are binding on all courts throughout India, while High Court judgments act as
precedent over all courts within their respective states, unless they have been revised or amended
by the Supreme Court.
If there exists an important issue on which legislation is silent, the Courts throw light on such
matters and define law.
In Luhar Amritlal Nagji v. Doshi Jayantilal (1960), the Supreme Court has noted that judicial
pronouncements have become an integral component of Hindu law, effectively altering and
enhancing the original Hindu legal framework, thus evolving into significant sources of
contemporary Hindu Law.

Conclusion

Hindu law has been regarded as a divine code crafted by sages or individuals claiming direct communication
with the divine power. In reality, the sources of Hindu law in India are rooted in ancient texts, customs, legal
precedents, and legislative acts. These sources form the fundamental basis for the legal structure governing
diverse facets of Hindu personal law.