The Indian Civilization is one of the oldest civilizations in the world and Hindus form a majority in his civilization. Thus, it is difficult to trace the origins of Hindu Law. Long back, there was no distinction between religion, law and morality and they were together referred to as “Dharma”.
The sources of Hindu law as administered by the courts are generally divided into ancient and modern.
I. Ancient Sources.
Under this head fall the following four sources ;
(i) Sruti,
(ii) Smriti,
(iii) Digests and Commentaries, and
(iv) Custom.
II. Modern Sources.
Under this head fall the following three sources :
(i) Equity, justice and good conscience,
(ii) Precedent, and
(iii) Legislation.
I. Ancient Sources.
1. Srutis (4000-1000 B.C.):
The word Sruti literally means “what was heard”. These are considered to be of divine origin and to have been passed orally over the generations. These are the laws revealed to the sages who gained spiritual heights to the extent that they could talk to God. They are considered to be the fundamental source of Hindu law and are considered to be the source of all knowledge. Shrutis include the four Vedas –
- Rig Veda
- Yajur Veda
- Sama Veda, and
- Athrava Veda
along with their brahmanas. Each Veda comprises of two parts- samhita and brahma. Samhita is a collection of hymns praising God and the latter is a theological explanation of the former. The brahmanas are like the apendices to the Vedas. Vedas primarily contain theories about sacrifices, rituals, and customs. They do not expound laws but certain stories that were to be taken as precedents. They described the life of people. They emphasised on two things:
- Dharma: These were the duties and obligations of people
- Karma: This was the belief that “do good to others and good would happen to you”.
2. Smritis:
Smriti means “what is remembered” and is based on the memory of sages. They are a collection of manuals written by medieval authorities on Hindu Law known as “rishis”. Smritis are divided into early and late Smritis. Early smritis are referred to as dharmasutra (800-200 B.C.) which were written in prose. Some of the important sages whose dharmasutras are known are: Gautama, Baudhayan, Apastamba, Harita, Vashistha, and Vishnu.
Dharmashastras were mostly in metrical verses and were based on Dharmasutras. However, they were a lot more systematic and clear. They dealt with the subject matter in three parts
- Aachara : This includes the theories of religious observances,
- Vyavahar : This includes the civil law.
- Prayaschitta : This deals with penance and expiation.
Of the late smritis, 3 are the most important:
- Manu Smriti (200 B.C.): It has 12 chapters and 2694 slokas and is a collection of rules of law. It gives a vivid idea of customs. According to Manusmriti, the King is subordinate to law but has divine powers with divine rights. It believed in Danda, i.e. rule by stick. The Manusmriti is pro-Brahamin and harsh on shudras and women.
- Yajnavalkya Smriti (300 A.D.): It is based on Manusmriti but is more synthesized, concise and logical. It emphasizes on the importance of customs and defined civil law (vyavahara). According to it, law is the king of kings and it is liberal on women and shudras.
- Narada Smriti (100-300 A.D.): It is the most logical and precise. It emphasizes on custom and civil law.
3. Digests and Commentaries:
The work done to explain a particular smriti is called a commentary. Two most important commentaries are Mitakshara by Vijnaneshwara and Dayabhaga by Jimtavahana (which is a digest of all the Codes).
4. Custom
Custom is an important source of law. Under the Hindu law specially, customs have played a significant role, and it is pertinent to point out that the Hindu Marriage Act, 1955, specifically saves customs regarding marriage and divorce from the operation of the Act.
“Custom” and “usage” have been defined under the Hindu Marriage Act, 1955 and Hindu Adoptions and Maintenance Act, 1956 as follows:
The expression “custom” and “usage” signify 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, tribe, community, group or family;
Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family.
Thus, the essentials of a valid custom are:
(i) it should be ancient or of long standing;
(ii) it should be in continual use; once it is discontinued, it comes to an end;
(iii) it should be clear and unambiguous;
(iv) it should be reasonable;
(v) it should not be immoral and should not be opposed to public policy; a custom which is opposed to public policy will not be enforced;
(vi) it should not be expressly forbidden by any law.
While section 29 of the HMA protects customary divorce, it is essential that the party relying on customs must prove the existence of such custom qualifying all the essential ingredients above mentioned.
The burden of proving a custom is on the party who alleges it. There are certain customs of which the court will take judicial notice : when a custom is repeatedly brought to the notice of the court, the court may hold the custom proved without any necessity of fresh proof’ otherwise all customs are to be proved like any other fact, usually custom is proved by instances.” Custom cannot be extended by analogy. No hard and fast rule can be laid down as to how many instances need be proved. A custom can be proved otherwise also. For instance, proof of conduct of members of the caste or locality which could be explained only on the basis of custom will be sufficient.
Surajmani Stella Kujur v. Durga Charan Hansdah AIR 2001 SC 938
If parties are members of a scheduled tribe and fall under section 2 (2) of HMA, then they will not be governed by the Hindu Marriage Act. If the parties want to rely on a particular custom, they must prove that the practice has attained the status of custom.
Gurdit Singh v Angrez Kaur, AIR 1968 SC 142
The Supreme Court held that there can be a valid divorce where custom allows dissolution and on dissolution of a marriage by custom, the party can enter into second marriage during the life-time of the first divorced spouse.
Germanthangi v F Rokunga, AIR 2004 Gau 42 (Aizawal Bench).
The issue revolved around a Mizo custom amongst the Mizos of “abandonment,” known as “Nupui Tlansan” in Mizo language. Recognising this custom as established amongst the Mizos, the court held that “abandonment” is not divorce, but just running away and leaving the family to their fate. In such case, the custom is explicit that the properties, house, field and children go to wife.
Mahendra Nath Yadav v Sheela Devi, (2010) II DMC 487 (SC)
A panchayat was convened and marriage dissolved on the husband paying Rupees 30,000/- to the wife. In order to give legal effect to the panchayat divorce the husband tried to persuade the wife to get a divorce by mutual consent from the family court. On her refusal to do so, he filed a divorce petition under section 13 on ground of desertion and cruelty and the wife filed for restitution under section 9. The family court granted divorce on the ground that the marriage had been dissolved through panchayat and dismissed the wife’s petition for restitution. On appeal, the High Court reversed the order and the Supreme Court upheld the same. It held that in case the appellant husband wanted decree on basis of customary dissolution of marriage through panchayat, he would not have filed a petition under section 13 of the HMA. Filing such petition itself means that none of the parties believed that divorce granted by the Panchayat was legal.
II. Modern Sources.
The modern sources of Hindu law are:
- Equity, justice and good conscience: This is an English concept. It means there must be fairness and reasonableness in dealing.
- Legislations: When the Parliament enacts laws, the laws become a source of Hindu law. There could be two approaches of making legislations into sources:
- Piecemeal Approach: A few changes are brought about with the help of Acts. For example: the Castes Disability Removal Act, 1850
- Major Acts: The entire law is overhauled in one go. For example: the Hindu Code cam in 1955-56.
- Precedents: After the Britishers came, the doctrine of stare decisis started being followed. Cases were recorded and future decisions were based on previous judgments. According to Article 141 of the Indian Constitution, the law declared by the Supreme Court is binding on all courts within the territory of India.
Mains Questions.
- Discuss the importance of custom as a source of Hindu law. Point out the essentials of a valid custom. Can a custom in derogation of a general rule be construed liberally by the court? [BJS 2017]
- What are the essentials of a valid custom? [Punj JS 1995]