What are the main Sources of Hindu Law.
Discuss the main Sources of Hindu Law.
Law may be defined as those rules and regulations which regulates the conduct of human being in a society. Law does not emerge out itself. There are many sources from where a law can be emerged out. In this modern period legislation as well as the judicial precedents are the main sources of any law.
On the other hand, personal law is associated with a particular group of persons or a community and based upon religion and custom. The main source of any personal law is religion and the working of the famous saints of that religion. Hindu law is a personal law and it is one of the ancient personal law in the history. That is why the sources of Hindu law can be classified into two heads:-
1) Ancient Sources of Hindu Law
2) Modern sources of Hindu Law
Ancient sources of Hindu law includes Shruti, Smriti, Digest and Commentaries and Customs whereas Modern sources of Hindu law includes Equity, Justice and good conscience, Legislation, Judicial precedents.
Ancient Sources of Hindu Law:-
• Shruti:- Shruti is the most prominent and the ancient source of Hindu law. The word Shruti has been derived from the word “shru” which means “to hear”. Literally it means “which has been heard”. It is believed that in the ancient era the Saints were because of their level of spiritually in the direct contact with God and the God has narrated Shruti (Vedas) to the saints. There are four kinds of Shruti (Vedas):- rigveda, yajurveda, samveda and athravaveda and these vedas contain rights and duties, forms of marriages, exclusion of women from inheritance, partition etc. But these are not very clear cut laws.
• Smriti:- Smriti is totally different from Shruti and the word Smriti has been derived from the word “Smri” which means “to Remember”. Smritis contain those portions of the Shrutis which the sages forgot in their original form and the idea whereby they wrote in their own language with the help of their memory. Thus, the basis of the Smritis is Shrutis but they are human works. There are two kinds of Smritis viz. Dharmasutras and Dharmashastras. Their subject matter is almost the same. The difference is that the Dharmasutras are written in prose, in short maxims (Sutras) and the Dharmashastras are composed in poetry (Shlokas).
• Commentaries and Digest:– After Smriti, the period of commentaries and digest was came. Commentaries and digest are the third main ancient source of Hindu law. Digests and commentaries came after Smritis during the 7th century to 1800 A.D. During earlier stages commentaries were based on Smritis but in the later period, the works were like digests containing various Smritis and explaining and reconciling various contradictions.
The evolution of different schools of Hindu law is a result of these digests and commentaries as these digests and commentaries are interpretations of the Smritis and hence the difference of opinion is bound to occur. Owing to this reason, different schools of Hindu law emerged. The main objective of these texts is to gather the scattered material available in the form of Smritis and shrutis and to compile it in a more comprehensive form for the betterment of society.
• Custom:- Besides these sources, Custom is also a principal source of law and its position is next to Shrutis and Smritis. It is superior to written law. Most Hindu law is based on the customs and it is recognized as a legit means of a source of law even in smritis also. Custom can be defined as those crystallized practices which are followed by a community or group of people for a considerable period, which after a particular period becomes a governing norm in that particular society or community.
Modern sources of Hindu law:-
• Legislation:- In this modern period legislation is the primary source of Hindu law. Legislation is an act of Parliament that plays an important role in the formation of any law. The legislation provides a base and authenticity to the laws. After the independence of India, there has been a steep increase in legislation regarding the codification of personal laws.
After codification, any point dealt with by the codified law is final. The enactment overrides all prior law, whether based on custom or otherwise unless an express saving is provided for in the enactment itself. In modern society, this is the only way to bring in new laws. The parliament, in accordance with the needs society, constitutes new laws. Examples of legislations include the Hindu marriage act,1955, Hindu succession Act, Hindu minority and guardianship act, Hindu adoption and maintenance act, etc.
• Judicial Precedents:- Judicial precedents are also a primary source of Hindu law. The doctrine of stare decisis started in India from the British rule. All cases are now recorded and new cases are decided based on existing case laws.
After the establishment of British rule, the hierarchy of Courts was established. The doctrine of precedent based on the principle of treating like cases alike was established. Today, the judgment of SC is binding on all courts across India and the judgment of HC is binding on all courts in that state, except where they have been modified or altered by the Supreme Court whose decisions are binding on all the Courts except for itself. In case of Shri Krishna Singh vs Mathura Ahir [(1981) 3 SCC 689], Supreme Court held that ” in applying the Hindu law, a judge should not introduce his own concepts of Modern times but should enforce the law as derived from recognised and authoritative sources of Hindu law i.e. Smritis and commentaries as interpreted in the judgements of the courts.
• Equity, Justice and Good Conscience:- Sometimes, it might happen that a dispute comes before a Court which cannot be settled by the application of any existing rule in any of the sources available. Such a situation may be rare but it is possible because not every kind of fact situation which arises can have a corresponding law governing it. In such situation courts cannot refuse to the settle the dispute in the absence of law and they are under an obligation to decide such a case also. For determining such cases, the Courts rely upon the basic values, norms and standards of fair play and propriety.
In terminology, this is known as principles of justice, equity and good conscience. So, we can say that Equity, Justice and Good conscience are also paramount sources of Hindu law because wherever conflict arises in the interpretation of Hindu law this principle is used by the courts either to formulate a new law or to carry forward existing laws.