Introduction

Hindu law is considered to be the most ancient and prolific law in the world. It has been around
every phase. It is about 6000 years old. Hindu law has been established by the people, not for
the purpose of removing any crime or transgression from society but it was established so that
the people will follow it in order to attain salvation. Originally Hindu law was established so
that the need of the people gets fulfilled. The concept was initiated for the welfare of the people.

A precise definition of Hinduism does not exist. Hence, it is impossible to define fixed criteria
for determining who is a Hindu. So, a negative definition of 'who is not a Hindu' is used.
Further, in this land, several religions have been born and they follow the same customs and
practices. So, it cannot be said that Hindu Law can be applied only to people who are Hindus
by religion. Due to these reasons, in general, the following people are considered to be Hindu
with respect to application of Hindu Law.

1. Hindu by Religion - A person who is Hindu, Jain, Buddha, or Sikh by religion. In

Shastri v Muldas1, SC has held that various sub sects of Hindus such as Swaminarayan,
Satsangis, Arya Samajis are also Hindus by religion because they follow the same basic
concept of Hindu Philosophy. Converts and Reconverts are also Hindus. SC, in the case
of Peerumal v Poonuswami2, has held that a person can be a Hindu if after expressing
the intention of becoming a Hindu, follows the customs of the caste, tribe, or
community, and the community accepts him. In Mohandas vs Dewaswan board3,
Kerala HC has held that a mere declaration and actions are enough for becoming a
Hindu.
2. Hindu by Birth - A person who is born of Hindu parents. If only one parent is a Hindu,
the person can be a Hindu if he/she has been raised as a Hindu. In Sapna vs State of
kerala, Kerala HC, the son of Hindu father and Christian mother was held to be a
Christian.
3. Persons who are not Muslim, Christian, Jew, or Parsee by religion.
4. Persons who are not governed by any other religious law will be governed by Hindu
Law.

1
SC AIR 1961
2
AIR 1971
3
AIR 1975

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It is believed that Hindu law is a divine law. It was revealed to the people by God through
Vedas. Various sages and ascetics have elaborated and refined the abstract concepts of life
explained in the Vedas.

Sources of Hindu Law

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The phrase “source of law” has several connotations. It may be the authority which issues rules
of conduct which are recognized by Courts as binding. In this context, ‘source of law’ means
‘the maker of law’. It may mean the social conditions which inspires the making of law for the
governance of the conditions. In this context it means ‘cause of law’. It may also mean in its
literal sense the material from which the rules and laws are known. In this sense the expression
means the ‘evidence of law’ and it is in this sense that the expression ‘source of law’ is accepted
in Jurisprudence.

Hindu law is a set of personal laws governing the social conditions of Hindus (such as marriage
and divorce, adoption, inheritance, minority and guardianship, family matters, etc.). It is not
Hindus alone who must follow Hindu law but there are several other communities and religious
denominations that are subject to its dominion such as Jains, Buddhists, Sikhs, Brahmo-
Samjists, Prarthana-Samajists, the Virashaivas and Lingayats and the Santhals of Chhota
Nagpur besides others.

Sources of Hindu Law can be divided into two parts - Ancient and Modern.

Ancient Sources
Before the codification of Hindu Law, the ancient literature was the only source of the law.
These sources can be divided into four categories:

i. Shruti
ii. Smriti
iii. Commentaries and Digest
iv. Custom

Shruti

Shruti means "what is heard". It is believed that the rishis and munis had reached the height of
spirituality where they were revealed the knowledge of Vedas. Thus, shrutis include the four
Vedas. The brahmanas are like the apendices to the Vedas. Vedas primarily contain theories
about sacrifices, rituals, and customs. Some people believe that Vedas contain no specific laws,
while some believe that the laws have to be inferred from the complete text of the Vedas. Vedas

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do refer to certain rights and duties, forms of marriage, requirement of a son, exclusion of
women from inheritance, and partition but these are not very clearcut laws. Vedas are ultimate
traditional source of law. The Vedas are ‘Rig’, ‘Yajur’, ‘Sam’, ‘Atharva’.

During the vedic period, the society was divided into varns and life was divided into ashramas.
The concept of karma came into existence during this time. A person will get rewarded as per
his karma. He can attain salvation through "knowledge". During this period the varna system
became quite strong. Since vedas had a divine origin, the society was governed as per the
theories given in vedas and they are considered to be the fundamental source of Hindu law.
Shrutis basically describe the life of the Vedic people.

The vedic period is assumed to be between 4000 to 1000 BC. During this time, several
presmriti sutras and gathas were composed. However, not much is known about them today. It
is believed that various rishis and munis incorporated local customs into Dharma and thus
multiple "shakhas" came into existence.

Smriti

Smrit means "what is remembered". With smritis, a systematic study and teaching of Vedas
started. Many sages, from time to time, have written down the concepts given in Vedas. So it
can be said that Smritis are a written memoir of the knowledge of the sages. Immediately after
the Vedic period, a need for the regulation of the society arose. Thus, the study of vedas and
the incorporation of local culture and customs became important. It is believed that many
smritis were composed in this period and some were reduced into writing, however, not all are
known. The smritis can be divided into two - Early smritis (Dharmasutras) and Later smritis
(Dharmashastras).

 Dharmasutras

The Dharmasutras were written during 800 to 200 BC. They were mostly written in prose form
but also contain verses. It is clear that they were meant to be training manuals of sages for
teaching students. They incorporate the teachings of Vedas with local customs. They generally
bear the names of their authors and sometime also indicate the shakhas to which they belong.
Some of the important sages whose dharmasutras are known are: Gautama, Baudhayan,
Apastamba, Harita, Vashistha, and Vishnu.

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They explain the duties of men in various relationships. They do not pretend to be anything
other than the work of mortals based on the teachings of Vedas, and the legal decisions given
by those who were acquainted with Vedas and local customs.

 Dharmashastras

Dharmashastras were mostly in metrical verses and were based of Dharmasutras. However,
they were a lot more systematic and clearer. They dealt with the subject matter in three parts-

o Aachara : This includes the theories of religious observances,

o Vyavahar : This includes the civil law.
o Prayaschitta : This deals with penance and expiation.

While early smritis deal mainly with Aachara and Prayaschitta, later smritis mainly dealt with
Vyavahar. Out of many dharmashastras, three are most important.

 Manusmriti

The code of Manu has always been treated by Hindu sages and commentators, as a being of
paramount authority. According to Brihaspati, Manu holds the first place because he has
expressed in his Code the whole sense of the Vedas, and no code is authoritative which
contradicts him. This is the earliest and most important of all. It is not only defined the way of
life in India but is also well known in Java, Bali, and Sumatra. The name of the real author is
not known because the author has written it under the mythical name of Manu, who is
considered to the the first human. This was probably done to increase its importance due to
divine origin. Manusmriti compiles all the laws that were scattered in presmriti sutras and
gathas. It gives importance to the principle of 'danda' which forces everybody to follow the
law. Manusmriti was composed in 200 BC.

Next to Manu in date and authority is Yajnayavalkya. His work is considered by Professor
Stenzler to have been founded on that of Manu.4 But he was more dynamic than Manu, although
his work is substantially based on Manusmriti. His Smriti deals with rules of procedure in
greater detail. His work is more concise and logical.

According to Dr, Kane, Narada, Brihaspati and Katyayana form a triumvirate of the ancient
Hindu law and composition of the legal literature.5 They showed an analytical insight and the

4
Mayne’s Hindu Law and Usage, 11th edn., pp. 25, 27 and 29.
5
History of Dharmashastra, Vol.1, pp.213.

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most perfect acumen in elaborating and explaining the juristic principles and philosophy. The
Smritis are the principal sources Lawyer’s law, but they also contain matters other than Positive
Law.

According to Mulla6 “The ancient law promulgated in the Smritis was essentially traditional
and the injunction was that time-honoured institutions and immemorial customs should be
preserved intact”. According to him the traditional law was itself grounded on the immemorial
custom.

The interpretation of Smriti’s text is not simple as it is not the literal interpretation alone that
has to be considered but the cognate meaning of the words are also to be taken into
consideration. Since these Smritis do not contain purely positive law, their Lordships of Privy
Council have emphasized the necessity for caution in the interpretation of Smritis.7

Commentaries and Digests

Owing to the obscurity, incompleteness and not infrequent conflicts in the rules of the Smritis
and the desirability of interpretation of the injunctions of Smritis in a manner so as to suit
prevalent customs and usages of different parts of the country, there was the necessity to
reconcile them on the points of difference. In this process there arose what constitutes the most
significant source of Hindu law, namely, the commentaries. The Commentaries and the Digests
were also the records of the traditional custom recorded in the Smritis as well as the new
customs claiming for and found worthy of recognition. The commentaries, though professing
and purporting to rest on the Smritis, explained, modified and, enlarged the traditions recorded
therein to bring them into harmony and accord with prevalent practices of the day to suit the
felt necessities of the time.8

The Commentaries while professing to interpret the law as laid down in the Smritis introduced
changes in order to bring it into harmony with usages followed by the people governed by law;
and it is the opinion of the Commentators which prevails in the provinces where their authority

6
Mulla D.F., Principles of Hindu Law, edn. XVI (reprint, 1994) p.2
7
Rao Bhagwan Singh v. Rani Kishori, 25 IA 54 (PC).
8
Bhattacharjee, A.M., Hindu Law and the Constitution, edn. II, (1994), p.36.

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is recognised. In the event of a conflict between the ancient text-writers and the commentators
the opinion of the latter must be accepted.9

The principal Commentaries are: (1) Dayabhaga by Jimutavahana, (2) Mitakshara, a

commentary on Yajnavalkya-Smriti by Vijnaneshwar, (3) Viramitrodaya by Mitra Misra, (4)
Vivada Chintamoni, by Vachaspati Misra, (5) Vivada-Ratnakara, by Chandeshwara, (6)
Dayatattwa, by Raghunandana, (7) Dayakramasangraha by Sri Krishna Tarkalankar, (8) Smriti,
Chandrika, by Devan Bhatta, (9) Parashara Madhaviya, commentary on Parashara Smriti, by
Madhavacharya and (10) Vyavahara Mayukha, by Nilkantha Bhatt.

Custom

Custom is regarded as one of the most important sources of law. Custom is a rule, which in a
particular family, a particular class, community or in a particular district, has owing to
prolonged use, obtained the force of law. Custom has the effect of modifying general personal
law, but it does not override statutory law, unless the custom is expressly saved by it. 10 The
importance of custom in Hindu Law has been so great that Privy Council laid down that a clear
proof of usage will outweigh the written text of law.11

Following are the essential points which constitute a custom-

 A custom must be continuous in practice.

 A custom should not be vague or ambiguous.
 A custom must have time antiquity.
 There must be a complete observation of the custom.
 It should be certain and clear.
 A custom must not oppose the public policy which will affect the interest of the general
public.

Deivanai Achi v. Chidambaram12

9
Atma Rao v. Baji Rao, 62 IA 139.
10
Laxmibai v. Bhagwani Buva, AIR 2013 SC 1204.
11
Collector of Madura v. Mootttoo Ramalinga, (1868) 12 MIA 327; Vannia Kone v. Vannichi Ammal, 108 IC 760.
12
1954 Mad. 667.

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In the instant case it was held that in order to become legally sanctioned by law and binding on
the people a custom must be continuous in practice, it should not be vague and ambiguous and
should not oppose the well-established public policy. A customary rule must be in the complete
observation of society.

Generally, when a custom attains the judicial recognition no further proof is required, however
in certain cases where the customary practices do not attain the judicial recognition, the burden
of proving lies on the person who alleges its existence.

Munna Lal v. Raj Kumar13

In the instant case the supreme court stated that a custom brought before a court several times,
the court might hold that such custom has been enforced by the law with the necessity of its
proof.

Modern Sources

13
AIR 1972 SC 1493

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Modern Sources of Hindu Law can be categorised into three:

1. Judicial Decisions
2. Legislation
3. Equity, Justice and Good Conscience

Judicial Decisions

It cannot be gain said that the early English Judges who administered the law to the Hindus
with the help of the Pandits had brought to bear their own notions and thus influenced the
development of the Hindu Law. Their ignorance of Sanskrit might, in some instance, had the
effect of imparting a rigidity to what has always been a very pliable legal institution, but in
many other cases, for the sake of justice, logic or harmony, the effect of original texts had been
either altered or modified by them in their judicial pronouncements. These judicial decisions
constitute an important source of law. A large number of decisions have now piled up on almost
every point of law which have superseded the law laid down in commentaries on several fronts.
The decisions of Privy Council in several areas of Hindu Law, where the Supreme Court has
not given its pronouncements are taken to be still binding.

A precedent is not merely an evidence of a law but also a source of law and the Courts are
bound to follow the precedents. Legislation and judicial decisions have modified and
supplemented the pure Hindu law and now they have emerged as important sources of the
present Hindu Law. Thus, it was observed by Bose J., that “the laws we are administering are
judge made laws. The ancient sages said nothing about the present matter and even where they
often spoke with conflicting voices, and when they did it, sometimes spoke so enigmatically
that the learned and able commentators were unable to agree as to what they meant. In the
circumstances it is the Courts which have moulded the Hindu Law and made what it is.”14

It cannot however, be denied that judicial decisions have immensely affected the Hindu Law.
But as regards the nature of the effect, there is a divergence of opinion. According to one view,
the effect of the administration of Hindu law by European Judges, many of whom, were
ignorant of Sanskrit has been to import English ideas into the laws while according to the other

14
Udhao v. Beshar, AIR 1946 Nag. 203.

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view the effect has been exactly the reverse, viz, that it has restricted the normal growth of the
law.

Legislation

In modern society, this is the only way to bring in new laws. The parliament, in accordance
with the needs of society, constitutes new laws. For example, a new way of performing Hindu
marriages in Tamil Nadu that got rid of rituals and priests was rejected by the SC on the basis
that new customs cannot be invented. However, Tamil Nadu later passed an act that recognized
these marriages.

Legislations are Act of Parliament which have been playing a profound role in the formation
of Hindu Law. After India achieved independence, some important aspects of Hindu Law have
been codified. Few examples of important Statutes are The Hindu Marriage Act, 1955, The
Hindu Adoptions and Maintenance Act, 1956, The Hindu Succession Act, 1956, The Hindu
Minority and Guardianship Act, 1956, etc.

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 matters not specifically covered by the codified law, the old textual law
contains to have application.

Equity, Justice and Good Conscience

Equity means fairness in dealing. Modern judicial systems greatly rely on being impartial. True
justice can only be delivered through equity and good conscience. In a situation where no rule
is given, a sense of 'reasonableness' must prevail. According to Gautama, in such situation, the
decision should be given that is acceptable to at least ten people who are knowledgeable in
shastras. Yagyavalkya has said that where ever there are conflicting rules, the decision must be
based on 'Nyaya'.

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The Supreme Court has recognised equity, justice and good conscience as a source of Hindu
Law. In Gurunath v. Kamlabai15 , the Supreme Court has 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 equity, justice and good conscience unless in doing so decision would
be repugnant to or inconsistent with any doctrine or theory of Hindu Law.

The Privy Council inferred the principles from the law of gift and applied them to the law of
wills and pointed out in the leading case of Tagore v. Tagore16, that it is the duty of a Court
“dealing with a case, new in instance to be governed by the established principles and the
analogies which have heretofore prevailed in like cases.”

15
1951 SCR 1135.
16
1872 1 IA Sup. 47, 68.

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Conclusion

It has been seen that Hindu law has been critiqued for its orthodoxy, patriarchal character and
does not bear a very modern outlook of society. There are many areas where the Hindu law
needs to upgrade itself, for example, the irretrievable under the Hindu Marriage Act, 1955, and
even the Supreme Court has expressed its concern on this.

The most valid concern is that the very definition of a ‘Hindu’ is still not given in any of the
sources. Statutes give only a negative definition which does not suffice the test of time. The
very proponent that Hindu law is divine law has been challenged by scholars and atheists.

In the past, due to the vast size of the country, various kinds of customs prevailed. Further, due
to lack of effective communication, there were several contradictions among the practices and
the judgement delivered. Thus, the country went on the way to being divided. Instead of
becoming the law of the land (lex-loci), Hindu Law became the law of a person. However, this
can only be an excuse for the past. Today, because of media and communication, judgement
delivered in one place is felt in another. A practice or custom followed in a village can be
repugnant to people in cities.

It can be said that proper codification of Hindu law without room for ambiguity is the need of
the hour. It can be said that where the present sources of Hindu law are uninviting the
Legislature could look into sources and customs of other religions and incorporate them into
Hindu law if it caters to the need of the society and meets the test of time.

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Bibliography

Books Referred:

 Paras Diwan, Modern Hindu Law (Allahabad Law Agency, Allahabad, 17th edn., 2006).
 A.M. Bhattacharjee, Hindu Law and the Constitution (Eastern Law House, 2nd edn.,
2005).
 S.A. Desai (ed.), Principle of Hindu Law (Lexis Nexis Butterworths, 2nd edn., 2005).
 R.K. Agarwal, Hindu Law (Central Law Agency, Allahabad, 21st edn., 2003).

Websites:

 Indian Kanoon, http://www.indiankanoon.org

 Lexis Nexis Legal, http://www.lexisnexis.com/in/legal.
 SCC Online, http://www.scconline.co.in

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