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Sunday, June 2, 2013

What are the sources of Hindu law?


Hindu Law is more religious than secular in character. The Hindus believed that their law is of divine origin to them. This is positive law emanated from the deity. It is not codified law, but extracted from various religious test, commentaries, usages and customs, and judicial decisions.
Sources of Hindu Law:
The sources of Hindu law can be classified under the flowing two heads:
A.    Ancient Sources:
1.      Sruti
2.      Smriti
3.      Commentaries or Nibandhas
4.      Customs and Usages
5.      Puranas

B.     Modern Sources:
6.      Judicial Decision
7.      Factum Valet.
8.      Equity, Justice and Good Conscience
9.      Legislation

1.      Sruti:
Literally sriti means, ‘what was heard’ the sruti is believed to contain the very words of the Deity. The sruti comprise the four veds, the six vedangas and eighteen Upanishadas. The four vedas are known as-
                    i.            The Rik-Veda
                  ii.            The Sum-Veda
                iii.            The Yajur-veda
                iv.            The Atharva-Veda
The Vedangas are appendages to Ved and are six in number. The Upanishadas are known as Vedantas or concluding portions of the Vedas and embody the highest principles of Hindu religion. Although the Srutis are believed to be the ultimate sources of law, in the sense of rules of human conduct. They are mostly religious in character and one finds very little secular law in Srutis.

2.      Smriti:
The word ‘Smriti’ is derived from the root “smri” and literally Smriti means, that which was remembered. Both the Sruti and Smriti refer to the utterances and precepts of the Deity. The Sruti contains the very words of Deity, whereas in Smriti the language is of human origin but the rules are divine. The three principal Smriti are:-
                 i.            The Code of ‘Manu’ (200 B. C.—200 A.D.)
               ii.            The Code of ‘Yajnavalkaya’ [(জাগ্যবলকো) (4th century A .D.)]
             iii.            The Code of ‘Narada’

3.      Commentaries or Nibandhas:
All the Smriti did not agree with one another in all respects, and this conflict led to several interpretation put upon them. Nibandhas are nothing but the interpretation put on the Smriti by the various commentators. However, it is interesting to note that those commentators did not merely interpret the Smriti, but they also recited the customs and usages which the commentators found prevailing around them. In other words, while professing to interpret the law as laid down in the Smriti, these commentators introduced modification in order to bring it into harmony with the current usages. 

4.      Customs & Usages:
When some kind of action gets general approval and is generally observed for a long time, it becomes a custom. Custom is one of the most important sources of Hindu law. Where there is a conflict between a custom and the text of the Smriti, such custom will override the text. Under the Hindu system of law clear proof of usage will outweigh the written text of law (Collector of Madur V. Mootoo Ramalinga).

     Custom may be defined as a habitual course of conduct generally odsarved in a community. Custom is a rule which, as a result of a very long usages, has obtained the force of law in a particular community or is a particular district. Thus custom plays a very important part in Hindu law. It modifies and supplements the written law. 

5.      Purans:
The puranas, eighteen in number, are not considered authoritative, so as the override the Smritis. The purans are Codes with illustrate the law by instances of its application. The puran are also a source of Hindu law.

6.      Judicial Decision:
Judicial decisions, to some extent, have become a source of Hindu law. Decisions of the Privy Council and of high courts are binding on the subordinate courts.

7.      Factum Valet:
The so called doctrine of factum valet ‘quod fieri non debuit’ – meaning – “what should not be done, yet being done, shall be valid.” It was enunciated first by the author of the ‘Dayabhaga’.

8.      Equity Justice and Good conscience:
The principals of justice, equity and good conscience may also be regarded as a modern source of Hindu law. In the absence of any specific law in the Smriti or in all event of a conflict between the Smrities, the principles at justice equity and good conscience would be applied.

9.      Legislation:
The Hindu law has been modified and supplemented in certain respect by the acts of legislations. Such as (i.) Freedom of Religion Act, 1850; (ii.) the Hindu women’s Right to Property Act, 1937 are instances on the point.