Sources Of Hindu Law

Introduction
Manu Smriti
Sources of DHARMA
- Vedas, Smritis, Sadacharas, Good Conscience
Yajnyavalkya says
- Sruthi,Smriti, Sadachara, Swasyacha Priyamatmanam
Samyak sankalpajah kamo dharmamulam edam smrutham.
Main sources of Hindu law

1. Srutis
Rig Veda - Laws of Sacrifices.
Yajurveda - Rituals and endowed with magic powers.
Sam Veda - Prayers composed of mantras intended to be
at sacrifices.

Atharvana Veda - Magic Charms.

Post Vedic Period :

Vedangas : Appendices to the Vedas came into
existence
a. Siksha,
b. Kalpa- Dealing with rituals,
c. Vyakarana (Grammar),
d. Chandas or Prosody
e. Jyotish or Astronomy,
f. Niruktha or Lexicon

Upanishads
Upanishads are nothing but vedanta
that is concluding portion of Vedas and
embody the highest principles of Hindu
religion and philosophy.

2. Smritis ( what was remembered)

3. Commentaries and Digests
4. Judicial Decisions
- Doctine of Pious Obligation
- Curtailment of womens rights
5. Legislations
- Caste Disabilities Removal Act 1850
- Hindu Widows Remarriage Act, 1856
Hindu Gains of Learning Act 1930
6. Justice, Equity and good conscience.

7. Custom were largely based upon customary law

Custom is transcendant law

Smritis and digests were largely based upon customary

law
On matters not covered by Smritis and Commentaries
custom supplements the law

Even where a custom exists in derogation of the law laid

down in the Smritis, it is none the less a source of law
according to Hindus

Smritis repeatedly insist that customs must be enforced.

They either override or supplement Smriti rules

 Manu Says it is the duty of the King to decide all cases which
fall under the 18 titles of VYAVAHARA or civil law according to
the principles drawn from local usages and from institutes of
sacred law
Narada says custom decides everything overrules
the sacred law.
Yajnavalkya says
one should not practice that which though ordained by the
Smriti, is condemned by the people.
Types of custom
Local Custom
Class custom; they are of caste or sect
Family customs: marriage customs,Zamindaries, Rajahs Familiy
customs

Essentials of Custom

Ancient ,
With regards to this feature is to establish that by common consent they have
been accepted as law governing a particular family, caste or locality
Continuous ,
a custom however old it may be, in the absence of clear proof of its continuous
observance without any variation. It would not obtain legal existence
Clear and unambi guous
it must be established by clear evidence, because it is only by the force of such
evidence that the courts can be assumed of its existence ,. Recognition to its legal
effect can be given only when its unambiguity is proved
Reasonable ,
Not opposed to morality or public policy
Custom should be the usage of virtuous should not be opposed to Dharma shastras
Where in a case before Privy Council a custom was setup as on the West Coast of
India, whereby the trustees of a religious institution were allowed to sell their trust
held to be invalid on the ground as being opposed to public policy and
Not forbidden by any express provision of law.
it is not only of statutory law but also of the mandatory texts of Dharmasastras

Continuation

Burden of proof
Burden of proof lies on the person who alleges
Judicially recognised custom needs no proof
Munna lal Vs. Rajkumar AIR 1972 SC.1493
S.c obsrved that:
When a custom is repeatedly brought to the
notice of the courts that custom may be held
to be introduced in to the law without the
necessity of proof
A custom cannot be created by an agreement