Sources of Hindu Law

The sources of Hindu law can be categorized under two heads:

1. Ancient and
2. Modern

Ancient Sources of Hindu law

Sruti, Smriti, and Custom are the three primary ancient sources of Hindu law. Commentaries and
digests, in addition to these three texts, are considered ancient Hindu law sources.

1. Sruti is a Sanskrit word that means "something which can be heard." The Vedic people's
lives are often described in Srutis. It is made up of the six Vedangas, the Upanishads,
and the four Vedas, which are:

1. The Rig Veda (which is the oldest of the four and includes songs and hymns);
2. The Yajur Veda (which comprises rituals and mantras);
3. The Sama Veda (which contains musical notes and prayers); and
4. The Atharva Veda (which contains musical notes and prayers) (contains magical
spells).

"The Sruti is, in theory, the primary and paramount source of Hindu law and is believed to
be the language of divine revelation." As a result, it is the fundamental foundation of
Hindu Law, yet it is not legally enforceable.

2. Smriti comes from the Sanskrit word "smri," which means "to remember." Smriti, in basic
terms, pertains to God's words that the sages forgot to tell in one's original form, but
which the sages recalled and wrote in their own word. Thus, Smriti translates to "that
which is remembered."

"Though the Smritis are not in the exact language of the God, they embrace what the
sages learned from discoveries, and they are regarded to have arisen from the God in
the context that they embrace what the sages remembered from revelations. Thus,
Smritis suggests human authorship, putting human action into the substantive and
procedural proclamation of law." The Dharmasutras [old Smriti] and the Dharmashastras
[new Smriti] are the main two types of Smriti.

 Dharmasutras:
These were written between 800 and 200 BC. They comprised local rituals and customs
as well as Vedic preaching on various tasks that a person must carry out in various
relationships. Sutras have a short and straightforward meaning that is easy to memorise.
The Srauta Sutra (ritual related), the Grihya Sutra (domestic-related), and the Dharma
Sutra (discipline related) are the three types of sutras (law-related). The Gautama (legal
and religious topics), the Baudhayan (marriage and inheritance concerns), the
Apastamba, and the Vashistha were the four important thinkers of the Dharma Sutra
(remarriage of virgin widows).

 Dharma Shastra
In Dharmashastra, our moral code of conduct is stated. It was based on Dharmasutras
and was more precise and systematic when compared to other texts. The three most
important issues that the Dharma Shastra deal was Aachara; Vyavahar; and
 Prayaschitta[16]

 Manusmriti is a Sanskrit word that means:

It is considered the most authoritative source of Hindu law. Manu, its creator, is regarded
as the first human being. All of the granthas and sutras are collected in Manusmriti. It is
generally accepted and respected that the latter will lose if a fight emerges between it
and other smritis.

 Yajnavalkya Smriti
It appeared after Manusmriti and contained more logical and apparent views. However, it
primarily dealt with civil law. Law, according to Yajnavalkya, is the king of kings, and the
king's role is limited to enforcing the law.

 Narada Smriti
He gave importance to regular customs. This Smriti did not deal with any religious or
moral issues. It wholly concentrates on civil practices and laws.

Commentaries and Digests

"The law of the Smritis was empiric and regressive, and in the course of time, several
commentaries and digests (Nibandhas) were written on it. The authority of several commentators
varied in different districts, and thus arose the schools of law which are operative in different
parts of India." The two schools of Hindu law are Dayabahga and Mitakshara. Moreover, it is only
because of the numerous commentaries available from various authorities that these schools
could evolve and be properly studied.

In the case Anjubai v. Hemchandra Rao , it was opined "that commentaries do not enact the
law, but they explain and interpret the law and are evidence of the congeries of customs which
form the law"

Custom
In India, Custom is the most widely used and recognised source of Hindu law. Customs were
valued in all of the Srutis and Smritis. However, usage is not the same as Custom since usage is
a common practice. Specific basic requirements must be met for a custom to be valid, namely:

i. Custom must be put into practice over a long period.

ii. It must not be immoral or ethically repugnant
iii. In some places, it is regarded as a law.
iv. The tradition must be consistent in its essence.
v. It must also be specific and not wavering or vague.
vi. It must be reasonable and not in violation of any public policy or law.
vii. It should not be discarded.

Hindu law considers Custom to be the third source of law. Custom ('Achara') has been regarded
as the ultimate 'dharma' since the beginning. According to the Judicial Committee, "custom"
refers to a regulation that has gained legal force in a certain family, class, or district via lengthy
usage.

The majority of Hindu law is founded on conventions and traditions that individuals observe all
over the country. Even smritis have placed a premium on customs. They regarded customs as
the supreme law, advising kings to judge based on customs after careful theological deliberation.
These customs are of four types:
Local Customs:
These are the customs that exist in a specific geographic location. In the case of Subbane v.
Nawab the Privy Council stated that a custom has legal force because it has been observed for a
long time in a particular location.

Family Customs:
These are traditions that have been passed down through generations in a family. This applied to
all families, regardless of their location. They are less complicated to abandon than other
practices. The Privy Council noted in Soorendranath v. Heeramonie and Bikal v Manjura that
family practises have long been recognised as Hindu law.

Caste and Community Customs:

These are the traditions that a specific caste or community adheres to. It binds the individuals of
such a caste or group. This is, without a doubt, among the most important legal sources. For
instance, the majority of the law of Punjab is of this type. This is likewise the case with the
Custom of marrying a brother's widow in several societies.

Guild Customs:
These are the customs that traders adhere to.

Modern Sources:
Many changes were made to Hindu law as a result of the arrival of the British. The modern
sources of Hindu law arose as a result of this. The three Modern sources are equity, fairness,
good conscience; precedents and judicial decisions; and legislation.

1. Equity, Fairness, And Good Conscience:

Sometimes, a dispute may arise before a Court cannot be resolved by applying an
existing rule from any accessible sources. Although such a situation is uncommon, it is
feasible since not every circumstance that emerges has a matching law governing it. In
the lack of law, the courts have no choice but to resolve the dispute, yet they are
obligated to do so. The Courts use core values, norms, and criteria of fairness and
appropriateness to decide such situations.

It is referred to as the principles of justice, equality, and good conscience. Natural law is
another name for them. Since about the 18th century, when the British administration
made it plain that the above concept would be implemented in the lack of regulation, this
concept now has the stature of a source of law in our country.

2. Precedents And Judicial Decisions:

The pyramid of Courts was developed after the beginning of British control. The theory of
precedent was formed based on the premise of treating similar cases similarly. The Privy
Council's judgements are now obligatory on all subordinate courts in India unless
modified or revised by the Supreme Court, whose judgements are binding on all courts
except itself. Occasionally, judicial judgements on Hindu law are referred to be a source
of law

For example, when there were disagreements between individuals during the British rule
in India, English judges turned to Hindu Pandits for help in interpreting local Sanskrit laws
and using them to settle the conflicts. Thus these cases become precedent.

3. Legislation:
legislation is codified laws of parliament, which plays an essential role in forming Hindu
law according to modern society. Some major elements of Hindu Law have indeed been
codified since the Attainment of independence. The Hindu Marriage Act of 1955, the
Hindu Adoptions and Maintenance Act of 1956, the Hindu Succession Act of 1956, the
Hindu Minority and Guardianship Act of 1956, and others are just a few examples of
 crucial statutes.

All point dealt with by the codified law is definitive after codification. If an express saving
is provided for in the enactment itself, the enactment supersedes all preceding law,
whether based on tradition or otherwise. The old textual law contains to have application
in situations not specifically covered by the codified law.

Conclusion:
As previously stated in this thesis, Hindu law is thought to be a divine law formed by sages and
those who claim to have formed it by directly communicating with God. However, there is no
evidence to support this assumption. Hindu law is exceedingly patriarchal, casteist, and not
modern in nature.