NATURE AND SOURCES OF HINDU LAW
Nature of Hindu law
Hindu law is considered to be of divine origin. It proceeds on the theory that Hindu law was revealed to the sages who had attained great spiritual heights and they were in communication with supreme power i.e. God. According to Hindu jurists, law is the enforceable part of Dharma. Dharma does not emanate from sovereign. It generally includes all kinds of rules, religious, moral, legal, physical, metaphysical, in the same way as the law does, in its widest sense.
According to Mayne, Hindu law is the law of ‘Smritis’ as expounded in the Sanskrit Commentaries and Digests, which as modified and supplemented by custom, is administered by the courts. According to Dahrmashastra writers, law was taken to be dynamic i.e. it should respond to the needs and requirements of the given period. Hindu law is not a king made law unlike the concept given by Austin.
Under Hindu law the sovereign or the King is not immune from Dharma. King was considered to be law enforcer and not law-giver. Hindu law is not lex-loci but personal law. It follows therefore, that on the migration of Hindu from one part to another part, it is presumed that he retains the laws and customs of the region from where he comes.
Sources of Hindu law
Different jurists and dharamshastris have told about various sources of Hindu law. According to Manu, four sources of Dharma are Vedas, the Smritis , Sadachara (approved customs and usages) and what is agreeable to one’s conscience. According to Yajnavalkya, “the Sruti, Smriti, the approved usage, what is agreeable to one’s good conscience and desires, sprung from due deliberation are ordained as the foundation of Dharma (Law). Source of law is a basis which enables the court to interpret law. It is a method by which rules are discovered or created. The sources of Hindu Law can be divided into two categories:—
1. Traditional sources
2. Modern sources
Traditional sources: The traditional sources of Hindu Law are as under :—
(a) Shruti : The name is derived from the root ‘Sru‘ which signifies ‘what is heard’. It is believed to contain the very words of deity revealed to sages. The Srutis consist of four Vedas, namely, Rig Veda, Yajur Veda, Sam Veda and Atharva Veda and 18 Upanishads dealing mainly with religious rites and the means of attaining true knowledge and salvation.
(b) Smriti : It means ‘what was remembered’. It is believed to be the recollection of Rishis handed down to us, constituting the principal sources of Hindu law. Smritis are embody what sages remember through revelation. Smritis are divided into the Primary and Secondary Smritis. The Primary Smriti is further classified into Dharma Sutras and Dharma Shastras.
(c) Commentaries & Digest: The commentaries and digests were also the records of the traditional customs recorded in the Smritis as well as the new customs claiming for and found worthy for recognition. The commentaries explained, modified and enlarged the traditions recorded therein to bring them into harmony and accord with prevalent practices. The principal commentaries are – (1) Mitakshara, (2) Dayabhaga, (3) Viramitodaya, (4) Vivada Chintamoni, (5) Vivada Ratnakara, (6) Dayatattwa, (7) Dayakramasangraha, (8) Smriti Chandrika, (9) Parashara Madhaviya, (10) Vyavhar Mayukha. Out of all the commentaries, the Mitakshara and Dayabhaga occupy a very high position from the point of their acceptability as authoritative sources of law.
(d) Customs: It is regarded as one of the most important source of law. In Deivanai Achi v. Chidambaram, AIR 1954 Mad. 667, it was held that a custom to have the force of law, must be ancient, certain and reasonable. In Section 3(a) of the Hindu Marriage Act, 1955 the expression ‘custom’ and ‘usage’ has been defined. It signifies 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 or tribe, community, group or family. The rule has to be certain and not unreasonable or opposed to public policy. It must be ancient, certain and reasonable.
Modern Sources: From long before the end of the British period and the commencement of the Constitution and the enactment of the Hindu Law Acts of 1955-1956, following become paramount sources of law:
(a) Judicial Precedent: A precedent is also a source of law and the courts are bound to follow these precedents. In Luhar Amritlal v. Doshi Jayantilal, AIR 1960 SC 964, Supreme Court observed that the judicial decisions have become part and parcel of Hindu law. Judicial decisions have modified and supplemented the pure Hindu law and they have emerged as important sources of the present Hindu law.
(b) Legislation: This source has played a significant role in the development of Hindu law. Most of them are in the direction of reforming Hindu law and some of them supersede Hindu law. It consolidated various principles of Hindu law scattered in different parts of the country. Many important Acts have been passed which have the effect of changing the religious nature of Hindu law at several instances. For example, The Caste Disabilities Removal Act, 1850, Hindu Marriage Act, 1955, Hindu Succession Act, 1956 etc.
(c) Equity, Justice and Good Conscience: Equity means the principles or rules emerging in the course of administration of justice particularly in those cases where on account of inadequacy of law, the judges evolve certain general principles on the basis of justness, fairness and propriety. The Supreme Court has recognized equity, justice and good conscience as a source of law in Gurunath v. Kamlabai, (1951) S.C.R. 1135 where it observed that it is now well established that in the absence of any rule of Hindu law, the courts have authority to decide cases on the principles of justice, equity and good conscience unless in doing so, decision would be repugnant to or inconsistent with any doctrine or theory of Hindu law.