SOURCES OF HINDU LAW

Topic – Reading into a Primary Source

Subject – History – 1

Submitted to – Professor Hota Agni Kumar

Submitted by – Aryan Garg

Roll No. – 2019 – 5LLB – 11

Year I Semester II
 Contents
 Abstract

 Introduction

 Sources of Hindu Law

 Ancient Sources

o Shruti

o Smritis

o Digests and Commentaries

 Modern Sources

o Custom

o Judiciary (Justice, Equity and Good Conscience)

o Legislation

o Precedent

 Analysis

 Conclusion
“Hindu Law is the oldest pedigree of any known system of jurisprudence; and even now it
shows no signs of decrepitude.”- Henry Mayne

Abstract
The principal aim of the project is to find out the scope of the source of Hindu Law, and
trying to understand how the Britishers studied these sources to rule the country and
interpreted it in the manner different from the way it should have been done.

Introduction
The phrase “source of law” has numerous connotations. It acts as a powerhouse which
regulates the conduct of the citizens and is of a binding nature to the court of law. It
essentially means that the source of the law is the creator of the law. In a literal sense, it also
means the materials from which the law is extracted or interpreted. In this sense, it is referred
to as the ‘evidence of law’ and thus it is accepted in jurisprudence.

Founder of the Mitakshara School and commentator on the Yajnavalkya Smriti Vijnaneshwar
referred the source of law as the means of knowing law. It is thus pertinent to study the
sources of law as only those rules act as law which has a place in its sources. A rule not
governed by these sources is not a law.

The origination of the word “Hindu” was from the Sanskrit word Sindhu, which is a
designation for the river Indus in the Indian subcontinent. A Hindu is a follower of Hinduism.

The Hindu Law is a collection of laws governing the adherents of Hindu religion, which
includes marriage and divorce, inheritance, rights of the minorities, guardianship, matters
relating to the family etc. In Hindu Law, not only the Hindus who adhere the faith are given
place but also the followers of other faiths like Jainism, Buddhism, Sikhism, Virashaivas,
Lingyats, Prarthana and Brahmo Samajis etc.

Hindu Law is defined as following, in Sir Dinshah F. Mulla’s “Principles of Hindu Law”,
“whenever the laws of India admits operation of a personal law, the rights and obligations of
the Hindu are determined by Hindu Law i.e. his traditional law, sometimes called the law of
his religion, subject to the exception that any part of the law may be modified or abrogated by
statute.”1

1
Principles of Hindu Law, 9 (D.F. Mulla, 21st edition, 2013)
 Sources of Hindu Law
Following are the sources of Hindu Law which can further be classified into two categories:

1. Ancient Sources
There are four ancient sources:
a. Shruti
b. Smriti
c. Digests and Commentaries and
d. Custom

2. Modern Sources
They can be classified into:
a. Judiciary (i.e. Justice, Equity and Good Conscience)
b. Precedent
c. Legislation
 Ancient Sources

a) Shruti
The word “Shruti” is derived from a Sanskrit word “Shru” the meaning of which is
“to hear something.”2 In Hinduism, the law is believed to be the words of the divinity,
i.e. the sages. “Veda” are also known to be synonymous with the word Shruti. The
origin of the word is Sanskrit and the meaning is “to know.” There are four types of
Veda, namely, Rig Veda (Veda comprising of various hymns in Sanskrit language),
Yajurva Veda (contains several formulas to be recited by the chief priest), Sama Veda
(consists of verses pronounced by the super natural), and Atharva Veda (consisting of
Magic, incantations, charms, predictions and speculative hymns).
Each Veda is further divided into three parts, Brahmin stating the duties and
responsibilities of a person, Samhita consisting of hymns and Upanishad containing
the essence of our duties and responsibilities.

b) Smritis
Smriti is a Sanskrit word the meaning of which is “to remember.”3 Smritis consists of
the portions of Shrutis which is written by the sages. Shruti is, thus recognised as the
basis of the Smritis but are the work of the humans.
Dharmashastras and Dharmasutras are the types of Smritis. Dharmashastras are the
sources written in the form of poetries and Dharmasutras are composed in the form of
prose. The Smritis, originally denote the poetic form of the Dharmashastras.
A lot of Smritis are found to be in existence but the most famous ones are written by
Manu, Vishnu, Katyayana, Parashar, Atri, Vyas, Vashishtha etc.
Achar, Vyavahar and Prayaschit are the three categories of Smritis which essentially
mean morality, rules for the adjudication of justice and provision of commission of
wrong respectively.

c) Digests and Commentaries

Commentaries are essentially the interpretation of the Smritis. They existed for over a
thousand year from 700 AD till 1800 AD. Digests are a compilation of various
writings of the Smritis explaining exceptions and contradictions.4 These
commentaries and digests acted as an important source of the overall development of

2
Supra Note 1
3
Ibid.
4
Ibid, at 10
 the Hindu Law. The evolution of different schools is also the product of these digests.
Two major schools of Hindu Law are Dayabhaga and Mitakshara schools.
Commentary on Mitakshara is written by Vijnaneshwar and Dayabhaga commentary
is written by Jimutvahana.

d) Custom
Custom in Sanskrit means ‘achara.’5 It is a source that many regard as the highest
“dharma.” Customs are practices and traditions of a group of people that has a power
or the force of law.
Custom came after the Shrutis and Smritis but it is in use even before the Smritis.
Certain characteristics of a custom are:
i. Antiquity – A particular act must be practised for a long time to be recognised
as a custom and get the force of law.
ii. Certainty – A custom must be free from any kind of ambiguity and
technicality.
iii. Reasonability – A custom must not be against any pre-existing law in force at
a particular time and must not be against any public policy.
iv. Continuity – Uniformity is an essential for a custom.

Different kinds of customs are recognised by the Indian Courts viz:

i. Local Custom – Followed in a particular locality, society or a group of

people.
ii. Class custom – Customs performed by a particular class of people. E.g. A
custom followed by the Brahmins may be different from the customs
performed by the Shudras.
iii. Family Custom – Customs that are binding upon particular members of
family.

Modern Sources

e) Judiciary (Justice, Equity and Good Conscience)

Many a times, a problem might arise before court which cannot be solved by the
sources of the law available to it. These situations rarely occur but they cannot be
ignored. In these situations, the courts rely upon basic norms, standards and values of
5
Supra Note 4
 the society. The principle of natural justice, i.e. Justice, Equity and Good Conscience
are these basic norms and values.6

f) Legislation
Legislation refer to all the parliamentary acts and rules which helped in the evolution
of the law of the Hindus. After independence, a number of aspects relating to the
Hindu Law were codified, which includes the Hindu Marriage Act, 1955, The Hindu
Adoption and Maintenance Act, 1956, Hindu Succession Act, 1956, The Hindu
Minority and Guardianship Act, 1956 etc.
These codifications override previous laws, including customs and all other
legislations.

g) Precedent
Hierarchy of the courts was established after the British rule was established. Today,
the judgements of the highest court of the country is binding on all the lower courts of
the country except for itself.

6
Ibid, at 11
 Analysis
Colonial government wished to rule India via understanding it. For doing so, it was important
for them to study the religion and the religious patterns, i.e. the social legislation. Hinduism
was the largest religion prevailing at that particular point of time. The intention of the
Britishers might have been to secure to Hindus a faithful administration, under the control of
the British but of their own law in its true spirit. This faithful administration could be made
possible only by establishing a strong connection with their lives. The Britishers considered
the Shastras to be the ultimate source as it provided information about the code of conduct
and was very much the part of the lives of the citizens of India.7

The Britishers, thus, appointed the people learned in Shastras to help the officers in tribunals.
This appointment was based on the assumption that the assistants would also be well versed
in the laws and could constantly keep the courts in connection with the living laws and help
in its growth and development, so as to create a law based on the actual needs of the people.
They however, failed in this purpose. Thenceforth the court decided to believe on the
assistance that they derived from their own experiences and from the evidences derived
formally.

It is to be noted that the idea of administering the nation based on the ideology and
experiences of a foreigner is subject to some serious flaws. One such flaw is to take for
granted the relationship between a custom and a shastra. Britishers were indeed wrong to
assume that a shastra is the ultimate paramount, instead they should have taken the help of a
pundit. They did not consider the situation in which the matter might not be listed in the
shastras. They even did not take the notice of the fact that the shastra itself affirmed
customary deviations from the rules and regulations of its own. The reliance on classical
jurisprudence was not given in the non-listed matters.

The process of understanding the law from the writings of the British authors of what the
pundits had to say, in addition to extrapolating what some important Sanskrit texts had to say,
and deciding cases on these lines might not correctly depict the local traditions prevailing in
the society. It was also seen that sometimes complete reliance was seen on the text, ignoring
the commentators while sometimes the relevance was given to the commentators, ignoring
the texts.

7
Comparative Studies in Society and History, Pp. 10 – 52 (Vol. 4 No. 1, Nov. 1961)
The inaccuracies of the Britishers in understanding the Hindu law can be viewed with the
way they perceived dharma.8 For classical Hindu Law, dharma is viewed as something that is
local, immanent, flexible, specific to a particular context etc. It therefore contains the essence
of universalisation and transcendence as it is rooted in the community and is concerned with
the benefit of the mankind. Many Britishers, on the other hand, viewed Dharma as a source of
‘inner contentment,’ ‘conscience of an individual,’ and ‘self-satisfaction.’ This view is flawed
because it is concerned with the idea of oneself which goes against the idea of the unity of the
community. The former translation depicts an appeal to innate morality, while the latter
indirectly discards the notion of morality and simply concerns mundane personal interests
and matters.

It was not the only case that the shastras were misinterpreted but the principle of stare decisis
was not followed a lot of times. The rules of the Supreme Court (Sadr Court) were discarded
and reconsidered a lot of times.9 This was frequent in the reports published during the 1930s.
Even the influence of Hindu Law was often trimmed to include case laws.

Thus, the literal and obstinate belief to the rules of the shastras, not understanding their
original discourse, had produced situations that did not comprehend with the Hindu tradition
and practices. It resulted in the formation of the Anglo – Hindu system which might be
harsher than the shastra, and where the spirit of law has been abandoned along with the
traditions and beliefs of the people.

8
D.R. David Jr., Traditional Hindu Law in the guise of ‘Postmodernism’: A Review Article, Michigan Journal of
International Law 735,742 (2004)
9
Supra Note 7, at 49
 Conclusion
Through the course of the project, the author has tried to portray how the Britishers are
criticized of having made the Hindu Law stiffer, preventing it from growing naturally. It has
also been portrayed that the Britishers did give a level of certainty by making the laws
clearer, certain, and uniform. But, an important aspect of stagnating the existing law from
which the culture and traditions of a community originated, did overpower the aspect of
certainty, uniformity and clarity.

It is thus, pertinent to note that, when a system of law confined in various texts, is
administered by an alien power, it is expected to be administered in the spirit or the ideology
of the compilers. If there arise a conflict between a written text and a non textual custom, a
decision is to be taken. When a decision is taken pertaining to the ideology of the foreign
power, problem arises.

As we have seen, the distance between the popular practices and usage and the law of the
courts prevents the answer which would have been given, namely that the law has been
developed by the citizens themselves. Even the voices raised against the misinterpretation of
the shastra came too late to affect the trend which was already set by the Britishers, i.e. to
create an Anglo Hindu System.