Sources of Hindu Law : Ancient and Modern sources
India is a country that has ample Personal laws. Every community has its own law. Hindu have Hindu laws, Muslim have Muslim laws, Buddhist, Jains and Sikhs all comes under Hindu law. Those who are born in Hindu, Buddhist, Jain or Sikh parents. However, if only one parent is Hindu, Buddhist, Jain or Sikh, then he must be brought up as a Hindu. In this category both legitimate and illegitimate children are included. These laws are not applied for Muslims, Christians, Paris or Jews. If any person born in Hindu or converted into Hindu this would be enough, even though in actual blandishment he may be non-religious, agnostic or decry his faith. There are many acts which comes under Hindu law.
Hindu laws deals with Hindu Sanskrit, Dharma, Religions, Marriage and it’s process. The main sources of Hindu law are.
- Traditional / Ancient Sources of Hindu law
- Modern Sources of Hindu law
Traditional/Ancient Sources of Hindu law
Traditional sources refer to those ancient Hindu legal system which governed the conduct of Hindus in that particular time. The traditional sources of Hindu law is the guidelines of the law with modification. In ancient time Hindu law is use for religion, dharma and marriage purpose. There are Four main sources of traditional sources.
- Shruti
- Smrities
- Customs
- Digest and Commentaries
Shruti
The word Shruti derives from word Shru which means hear and the word Shruti means heard. In Hindu law the word Shruti is the prime and supreme source of Hindu law. It is the language of Gods through saints Shadu-Saints is the most powerful personality in Hindu religion it believe that they have reached such a high divine were they informed about Vedas. There are four type of Vedas. Rigveda, Yajurveda, Samveda, Atharvaveda. Vedas has three Parts viz Sanhit, Brahmin and Upanishad. Sanhit consist of hymns, Brahmins consist duties and how to perform this duties and Upanishad consist essence of the duties. Veda period exist between 4000 to 1000 BC. Veda informs about right and duties.
Smrities
The word Smrities derives from word Smri which means to remember and the word smriti means the work created by virtue of memory. There are two types of Smrities Dharamustras and Dharamshastras. There is very little difference the difference is Dharamustras are written in form of Prose while Dharamshastras written in form if shlokas.
Custom
The word custom defines the crystallized practices followed by a community or group of people for a sizeable period. Customs became a governing norms in a society. Custom is also a source of law. It is supreme to written law and it’s position is next to Shruti and Smriti. Hindu law is based on custom. There are four types of custom
- Local Custom(local custom means the custom use in there locality or area like in Rajasthan there is a custom of child marriage)
- Caste and community custom (caste custom means the custom which follow by their particular caste of community. Like different caste has different process of marriage. In Sikh marriage is performed by Anand Karz)
- Family Custom (family custom means the custom followed by all the family members of the family)
- Guild Custom (guild custom means the custom followed by particular group)
Digests and Commentaries
Digest and commentaries comes in the period between 7th century to 1800 AD after smrities. In early stages commentaries works on smrities but after that it work like digests containing numerous smrities. The change of Hindu law is a result of digests and commentaries. The most important commentaries are Manunhashya, Manutika and Mitakshra and the most prominent digest is jimutvahan’s Dayabhaga that applied in Orissa and Bengal. Mitakshara is one of well known and supreme source of law in India. Mitaksara and Dayabhaga are two main sources of Hindu law in India.
Modern Sources of Hindu law
Modern sources of Hindu law refers to modern and new generation and evolved in the present form. There are three main source of modern Hindu law.
- Equity justice
- Legislation
- Precedent
Equity justice
Equity means fairness in dealing. Justice means the modern judicial system delivered the true justice based on equity and good. In modern law the dispute comes in court which settled by the application of law and rule in any sources. The court cannot refuse the settlement of dispute while in the absence of law. When British Administration clear that the absence of rule terminology. Terminology means the principles of source. This principles enjoy the status of source of law in our country.
Legislation
Legislation is the Act of parliament which play a vital role in the formation of Hindu law. After the independence there are many Hindu law conflicted. After confliction any point conflict is final. No matter it voilet customs or other. In modern time, the Only way to form new law is Parliament. First, it passes in Parliament, then it come in work. The acts in Hindu law is Hindu Marriage Act, 1955 , Hindu Succession Act, 1956, Hindu Minority and Property Act, 1916.
Precedent
After the establishment of British rule the hierarchy of court was established. The doctrine of precedent based on the principles of treating like cases alike was established. Today, the decisions of council are binding on all the lower court except where they modified or altered by the Hon’ble Supreme Court whose decision are binding in all court except itself.
Conclusion
It has been seen that Hindu law needs evaluation of its conviction, patriarchal character and does not look modern. Hindu law needs upgrade in many areas of law. The main drawback of Hindu law is not any proper definition of Hindu law in any source. According to Historians there are many Smriti yet to be found. The Traditional/Ancient sources of Hindu law are written in sanskrit. And in present time the knowledge of proper sanskrit is very less and sanskrit scolars are also less in number. According to traditional/ancient sources, modern sources of Hindu law are well-defined and more cleared.
Author: AKSHANSH HARSH,
Lloyd law college