Sources of Hindu Law

Sources of Hindu law are of 2 kinds according to the importance –

1.Divine sources
2.Humane Sources

All the sources of Hindu law may be discussed

under following heads—

1.Sruti
2.Smriti
3.Nibandha or Commentaries
4.Customs
5.Puranas
6.Legislations
7.Judicial decisions
8.Factum Valet
9.Minor Texts

Equity, Justice and Good Conscience

 

I. SRUTI:

The ‘Sruti’ contains the divine revelations, the very words of the Deity. The word ‘Sruti’ is derived from the word ‘Sru’, the hearing, which signifies what is heard. It contains very little of lawyers law. They consist of hymnes and deals with religious rites, true knowledge and liberation.

So the Sruti comprises the

  • Four Vedas,
  • Six Vedangos and
  • Upanishadas.

Four Vedas:

The Vedas consists of hymnes, incarnation, form of impreciats for destroying or inuring enemies, prayer for safety from enemies, or for avert in calamities, way to make the God pleased. It shows the way to live a standard life. The four Vedas are as follows—

  1. Rik Veda
  2. Sam Veda
  3. Yajur Veda
  4. Atharva Veda

The Six Vedangas:

Vedangas are the appendages to Vedas and are six in number. Vedanga is required in order to read the Vedas correctly and to understand the meanings of Vedas. Vedangas are not regarded as a source of law in the true sense. The six Vedangas are –

  1. Siksha or Orthography
  2. Kalpas
  3. Vyakarana or Grammar
  4. Chhandas or Prosody
  5. Jyotisha or Astronomy
  6. Nirukta or Lexican

Upanishads:

Upanishads are also demonstrated as Vedantas. These are the concluding portion of the Veda and embody the highest principles of Hindu religion.

II. SMRITI:

The Smriti literally means that which was remembered and believed to contain the precepts of God. Sruti is the very words of God whereas in Smriti, the language is of human origin but the rules are divine. The Smritis are the main sources of Hindu Law but they also contain matters other than positive law.

Smritis are the recollections handed over by the Rishis or Sages of antiquity of the precepts of God. So Smritis are more important as they contain a good deal of positive law. But in case of conflict between Sruti and smriti, sruti will get priority.

The three principal Smiritis are—

  1. The Code or Institutes of Manu
  2. The Code or Institutes of Yajnavalka
  3. The code or Institutes of Narada

III. NIBANDHAS OR COMMENTARIES:

The conflict between Srutis and Smrities and sometimes among the Smrities gave rise to commentaries which are also known as Nibandhas. The Commentators explain and interpret the laws laid down in Smrities and they did it on the bases of the customs and usages which they found in vogue around them. So the Nibandhas are the evidence of authoritative interpretation of laws.

IV. CUSTOMS:

Custom is explained by the judicial Committee in “Hurpurshad vs Sheo Dayal” thus—

“Custom is a rule, which in a particular family, or in a particular district, has from long usage obtained the force of law. It must be ancient, certain, and reasonable and being in derogation of the general rules of law must be construed strictly.”

Customs are supposed to be based on lost and forgotten smritis. But they hold similar weight as that of Smriti and Privy Council has taken this view in the case of “Collector of Madura Vs Mootoo Ramlinga Sathapathi”– “Under Hindu system of law, clear proof of usage will outweigh the written text of law.”

Customs may be divided into four categories—

  1. Universal custom- applicable for all and everywhere.
  2. Local custom – binding on the inhabitants of a particular locality.
  3. Class custom – binding on a particular caste.
  4. Family custom – confined to a particular family, maths or religious institutions.

A valid custom must fulfill following conditions—

1. Antiquity – It must be custom from time immemorial (hundred years old)
2. Certainty – It must be certain and specific in meaning
3. Reasonableness —  A custom must not be unreasonable
4. Continuity – It must be a continuous practice
5. It must not be opposed to morality or public policy
6. It must not be in contravention of any statute
7. It must not violate the rules of justice, equity ad good conscience.

V. PURANAS

The Puranas, eighteen in number, are not authoritative, so as to override the Smritis. They are the mythological poems professing to give an account of the creation, to narrate stories of god and ancient kings and in doing so they relate religious duties and rights.

VII. JUDICIAL DECISIONS:

Judicial decisions are important sources of Hindu law in modern time. Decisions of Privy Council and of High Courts are binding on subordinate courts. Rules enunciated in the cases of the Collector of Madura Vd. Mootoo, Sri Balasu Vs Sri Balasu, Tagore vs. Tagore are instances on the point.

VIII. FACTUM VALET

The Doctrine of Factum valet is another important source of Hindu Law. It is based on a maxim Factum valet quod fieri non debuit which means “What should not be done, yet being done, shall be valid”. This doctrine was first enunciated first by an author of Dayabhaga by a principle—“A thing or nature of a thing cannot be altered by a hundred texts”.

It applies in cases where something ought not to be done in point of morals or religions. But it does not excuse the violation of a legal rule.

IX. MINOR TEXTS

The Upa-puranas or the minor or subsidiary puranas, sometimes have found favour with courts. The authors called these rules as rules of conduct. Inter-marriage between different tribes though contrary to Shastras, is based on Aditya-Purana and it was accepted by the Court in Malaram vs Thanooram.

X. EQUITY, JUSTICE & GOOD CONSCIENCE

The Court has inherent power to apply equity, justice and good conscience. But such application must be consistent with basic provisions and principles of Hindu law and not offending the same. (Ramachandra vs Vinayak)

 

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