What are the sources of Hindu Law? Who is a Hindu?

Sources of Hindu Law: All You Need to Know

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This article on ‘Sources of Hindu Law: All You Need to Know’ was written by Ishika Agarwal, a intern at Legal Upanishad.

Introduction

India is a country where one can witness a diversity of cultures and religious beliefs. Hinduism is followed by the majority of the population residing in India, followed by Islam, and then the rest of the religions. Since different religions are being followed by different sections of the population, the question arises as to how to govern them, as it may affect the sentiments of the general public.

To regulate and govern these religions, one must take into consideration the different sources of these religions, especially their personal matters like inheritance, adoption, marriage, divorce, etc. In this article, an attempt has been made by the author to analyse the sources of Hindu law.

Who is a Hindu?

There is no exact definition of the term Hindu provided either in any statutes or in any judicial precedents. However, instead of asking who a Hindu is, if it is asked to whom Hindu law is applied, then we will be able to find the answer to this question. The person to whom Hindu personal law is applied may be placed in the following groups:

  1. Any person who is a Hindu, Jain, Sikh, or Buddhist by religion, i.e., Hindus by religion
  2. Any person who is born of Hindu parents (when both the parents or one of the parents is a Hindu, Jain, Sikh, or Buddhist by religion), i.e., Hindus by birth;
  3. Any person who is not a Muslim, Christian, Parsi, or Jew and who is not governed by any other law

Sources of Hindu Law

Hindu law is the most ancient law known to us. It is believed that the Vedic period existed from around 4000 to 1000 B.C. In this span, Hindu law has gone through many phases, but it must be kept in mind that it has changed with the passage of time as well as with the changing needs of the community. Broadly, Hindu law can be classified into two categories:

  • Ancient sources of Hindu law, and
  • Modern sources of Hindu law

Ancient sources of Hindu Law

The ancient sources of Hindu law form the primary source of Hindu law on which the codified laws are based. These sources mainly include texts and scriptures like the Upanishads, Vedas, etc. Ancient sources are also known as the primary sources of Hindu law. The following four categories fall under the ancient sources:

  1. Shruti
  2. Smriti
  3. Digests and Commentaries, and
  4. Customs

We will discuss each one of them in detail.

  1. Shruti (Vedas)

The term shruti closely relates to ‘what was heard’ from God. It is a synonym for ‘Veda’. It is believed that the Vedas are the paramount source of Hindu law, as they are said to contain the voice of God. The Vedas are of four types, namely, the Rigveda, Yajurveda, Samaveda, and Atharvaveda, with the Rigveda being the oldest of all.

  1. Smriti

The term smriti means ‘what was remembered’. This means that smritis is established in the remembrance of the sages to whom the divine revelations were uttered by God. Smritis are either in the form of prose or in the form of verses, and accordingly, they are divided into two categories: Dharmasutras and Dharmashastras.

The former is in the form of prose or prose and verse, while the latter is in the form of verses, i.e., shlokas. Some examples of Dharmasutras are Gautama, Baudhayana, Apastamba, Harita, Vasistha, and Vishnu, and some examples of Dharmashastras are Manu, Yajnavalkya, Narada, Katyayana, Brihaspati, etc.

All the smritis have derived their sources from the Vedas. So if there is a smriti that conflicts with the Vedas, then it must be rejected as it violates the divine revelations of God. If there is a dispute between the rules of one smriti and the rules of another smriti, if there are chances that both can be reconciled, that will be followed, but if not, Manusmriti shall prevail over the other. In order of authority, next to Manusmriti comes Yajnavalkya smriti, so if there is a dispute between Yajnavalkya smriti and any other smriti other than Manusmriti, then Yajnavalkya smriti shall prevail.

  1. Digests and Commentaries

The third source of Hindu law is the Digests and Commentaries. As discussed above, there are various smritis, so there might be chances that inconsistencies between them arise. So, to reconcile these inconsistencies, the digest and commentary writers either commented on that particular matter or wrote digests (nibandhas) on it. Numerous digests and commentaries are accessible to us; the most prominent among them are on Manusmriti and Yajnavalkya Smriti.

Commentaries on Manusmriti

The most observed commentary on Manusmriti is by Medhatithi, Govindraja, and Kulluka Bhatta.

Commentaries on Yajnavalkya Smriti

Like Manusmriti, there are numerous commentaries on Yajnavalkya smriti; some of them are: Visvarupa, Vijnaneshwara, Apararka, Shulapani, and Mitra Mishra.

  1. Customs

Customs are one of the important sources of Hindu law, which means traditions, practices, and activities that have been followed by people from generation to generation. Some requirements need to be fulfilled for a custom to be recognised as a law. These are:

  • Customs need to be ancient.
  • Customs need to be continuous.
  • Customs need to be certain.
  • Customs need not be unreasonable.
  • Customs need not be immoral.
  • Customs need not oppose public policy.
  • Customs need not oppose the law.

Modern Sources of Hindu Law

Equity, justice, good conscience, precedent, and legislation form the modern sources of Hindu law. These sources are considered secondary sources of Hindu law. We will gain in-depth knowledge of each one of them below.

  1. Equity, Justice, and Good Conscience

There were cases when the rules and laws laid down by the Vedas, Smritis, Digests, and commentaries were not directly applicable or there was no proper law for a particular case. In those cases, the judges use the theories of equity, justice, and good consciousness. This means that to address such cases, the judges make decisions on the basis of fairness and appropriateness.

  1. Precedents

Precedents generally refer to past decisions given by the courts on a particular matter or case. Although they are not considered an important source of Hindu law as compared to legislation, they hold a very significant place. All the decisions passed by the Supreme Court are binding on all the lower courts. This power is given to the Supreme Court under Article 141 of the Indian Constitution. The major cases in which the precedents are looked upon are those relating to adoption, inheritance, divorce, etc.

  1. Legislations

In the modern age, legislation is the most important source of law. Legislation is the enactments of the Parliament or State Legislatures declaring, repealing, amending, or modifying the Hindu law as per the needs and changes of modern society. During British rule, little effort was made by the then government to bring changes in Hindu law through the legislature. However, after Independence, the laws were codified, and thus modifications were made to the existing Hindu law, some of which superseded the Hindu law. The codified laws that have a significant impact on Hindu law are:

  1. The Caste Disabilities Removal Act, 1850
  2. The Hindu Widows’ Remarriage Act, 1856
  3. The Dissolution of Native Converts’ Marriage Act, 1866
  4. The Special Marriage Act, 1872, and re-enacted as The Special Marriage Act, 1954
  5. Child Marriage Restraint Act, 1929
  6. The Hindu Inheritance (Removal of Disabilities) Act,1928
  7. The Hindu law of Inheritance (Amendment) Act, 1929
  8. The Hindu Gains of Learning Act, 1930
  9. The Hindu Women’s Right to Property Act,1937
  10. The Hindu Marriage Act, 1955
  11. The Hindu Succession Act, 1956 as amended by The Hindu Succession (Amendment) Act, 2005
  12. The Hindu Adoption and Maintenance Act, 1956
  13. The Hindu Minority and Guardianship Act,1956
  14. The Prohibition of Child Marriage Act, 2006

Conclusion

It is said that Hindu law is the divine revelations of God, directly passed on to sages. The sources of Hindu law are texts, scriptures like the Vedas, Upanishads, etc., customs, smritis, judicial precedents, legislation, equity, justice, and good conscience. In modern society, Hindu law is governed by the legal framework that governs different aspects of Hindu personal law, and with the changes in society, Hindu law is evolving to cater to the needs of society.

References

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