This article has been written by Ms. Janvi , a 1st year student of Symbiosis Law School , NOIDA.

ABSTRACT  

This article dvelves into the sources from which the Hindu Law has been derived and origin of the word ‘Hindu’. It clearly presents the meaning of the topic and its relevance can be understood just by reading it . From the ancient scriptures like Vedas , Smritis etc . , which lay down the foundational principles , to the dynamic interplay of customary practices and precedents , the article navigates through the intricate web of influences that shape the Hindu jurisprudence.

INTRODUCTION

The legal system of Hindu Law is not very simple. It is a complex myriad of sources which we bifurcate into ancient and modern sources to give it a simpler form . They reflect the rich cultural heritage, customary practices etc. The foundation of Hindu Law has been embarked on and interwined with religious and ethical principles deeply. Thus , they become super relevant with the dynamic changes in the society and deals with the contemporary issues. This article seeks to unravel all those layers of legal intricacies by hitting the foundation of Hindu Law directly by learning about its sources, to get a better understanding of Hindu jurisprudence.

MEANING OF ‘SOURCES OF LAW’:  

The source of law can be referred to as those origins of law or the sovereign from which the law derives strength or power  or validity. As per famous philosopher Salmond, there are two sources of law, namely: formal and material . Formal sources of law are the ones that are the actual or solid sources from which law derives its force . Material sources are those which deal with the content or substance of the law. They are subdivided as historical or legal sources .

ORIGIN OF THE WORD ‘HINDU’ :

The word  “ Hindu” has been derived from the Sanskrit word  ‘Sindhu’ which is another name for the holy river Indus . Indus is a major water supplier to the plains of Punjab and Sindh.   This word was seen initially in the old Persian texts. The practice of Hindu religion is called Hinduism. 

 WHO IS A ‘HINDU’ :

There are 3 categories to determine if a person is Hindu or not,as per section 2 of Hindu Marriage Act , 1955.

1. By birth :All those who are born in a Hindu family i.e. both parents are Hindu or a family where one parent is a Hindu but the child is brought up as a Hindu, are considered to be Hindus as per personal laws in India . Apart from them , all those who are born to Sikh or Buddhist or Jain parents are also considered to be Hindus.
2.  By Religion: One who practises Hindu , Jain , Buddhist or Sikh religion  or has converted himself into Hindu , will also be termed as a Hindu.
3. Also , if a person is not Muslim , Parsi or jew or any other personal law is not applicable upon them , then they will also be called as Hindu. 

SOURCES OF HINDU LAW ;

There are mainly two broad categories of sources of Hindu law , namely:

1. Ancient sources
2. Modern sources

ANCIENT SOURCES OF HINDU LAW: 

The ancient or the traditional sources of Hindu Law were those that governed the religion , dharma , marriage related activities of the people in ancient times . In general , the conduct of people was being governed through these ancient sources . There are mainly 4 ancient sources of Hindu Law. They are :

1. Shrutis 
2. Smritis
3. Customs 
4. Commentaries and Digests

SHRUTIS:

Shruti, which is a Sanskrit word, means “something which can be heard” . Here, something widely refers to the Vedas. Shrutis can be considered as the primary or supreme source of Hindu law. It is said to be the language of divine revelation though it is not legally enforceable . Vedas were developed by sages and they were imparted to the families and their generations orally. They are comprised of – Samhita and Brahma. Samhita are those collections of hymns which praise the God and Brahma can be said to give the theological explanation of Samhita. The Vedas do no have an explicit mention of law but their statement of facts are seen occasionally in smritis and have evidence of them being used locally like some statements like wanting of son only rather than daughter, the forms of marriage, women s’ position and rights in society. There are four types of Vedas. They are : Rig Veda , Yajur veda . Sam Veda , Atharva Veda. To understand the relation between the there of them , we can compare them with a tree , where Rig Veda is the tree and its offshoots are the other two Vedas, Sam and Yajur Veda. Atharva Veda was added a bit later in time.

SMRITIS: 

Smriti , which is a Sanskrit word, means “ that which is remembered” . These texts are the ones that the sages have assumingly forgotten to tell in their original form, and later they recalled them and wrote in their own words. They are thus , not the exact words of God as shrutis, but rather what the sages remembered from revelations, what they learned from discoveries. These smritis were authored by sages or Smritikars. They were neither kings, religious heads nor legislators or teachers, philosophers etc. They preached the entire code of conduct of life in the form of Dharma which included managing relationships between members of family like husband and wife , father and son , rules of marriages like endogamy and exogamy , worship and sacrifice etc. , karma , rebirth , mortgage, punishments for crimes , details of conduct for individuals in various stages of their lives , different philosophies , about  birth and death. The rules could be bifurcated into : Ahara , the moral aspects of the rules and Vyavahara  , the legal aspects of the rules.

Smritis could be classifies as : 

1. Dharmasutras: The texts written in prose or verses approx.. between 800-200 BC were called as Dharmasutras . These texts were written by sages , teachers for their students to guide them towards the right path. These texts are based on Vedas. They are dealt with what are the duties that a man should perform in his / her life . Some of the main Dharmasutras are : Gautama , Vashishta , Baudhayana Sitra , Apastamba , Harita etc.

1. Dharmashastras: The newer versions of Dharmasutras can be called as Dharmashastras. They can be divided into : Achara , Prayaschit , Vyavhara

 In detail, Achara is meant to deal with the behavioural principles of a person , dealing with what is right and what is right, i.e. the moral aspect in it . The Vyavahara deals with ‘civil laws’ . They deal with the principles of what is modern-day we term as substantive or procedural laws . They have been dealt by Smritikars namely Narada. The most important smritis include Yajnavalkya Smriti, Manu Smriti and Prashar Smriti.

Manusmriti has given the concept of “Law is the king of kings”. He stated that law is supreme and even the king is subordinate to the law. The king would run the administration according to the law and he will merely be the law- enforcer. Similarly , in Yajnavalkya, Manu s’ sayings find firm support , where it has been written that King is not divine and is subordinate to law. He must administer justice in the society and do a lot of self-service during his reign .

CUSTOMS: 

Customs play an important role in law making policies of the government. Whenever a law is being made, the social acceptability of the law is a priority concern. The longer the practice has been engraved, rooted, the easier it is to be accepted by society. When a particular practice has been a part of the society continuously, they are termed as customs . In the early stages of Hindu law , The customs were seen as the rules to be followed in order to be in compliance with the norms of society. Custom is a very important source of Hindu Law as well. It is even seen that if a law has been passed and is contrary to the popular customs , the success rate remains very low . There are certain essentials to be fulfilled , in order to call a practice as a custom ; they shall be ancient, reasonable, obligatory , certain, uniform , observed continuously, and not intermittently and they shall not be opposed to the public policy.

Some types of customs :

1. Family customs : these customs are the ones which are passed on from generation to generation. This applies to all families, regardless of location. 
2. Caste customs: They are also known as customary customs . They are adhered to by the people of same community or caste or group .
3. Guild customs: These customs were adhered to by guilds like that of traders.

DIGESTS AND COMMENTARIES: 

The change of Hindu Law has been largely due to digests and commentaries. Some of the main commentaries are Mautika, Mitakshara, Manunhashya, etc. Mitakshara is one of the well-known sources of law in India. Infact, Mitakashara and Dayabhaga are one of the two main sources of Hindu Law in India.  The digest Mitakshara has been prominently applied in India except in states like Orissa and Bengal as Dayabhaga has been prominently applied in Orissa and Bengal only. 

MODERN SOURCES: 

Since the arrival of the British, many changes have been brought to the Hindu law as well. These sources are equity, a good conscience, most importantly judicial precedents etc. 

1. FAIRNESS , EQUITY , GOOD CONSCIENCE: Sometimes , circumstances get created in a way that a dispute has arisen before the court which could not be resolved solely through the means of law. Although these situations occur very rarely , but still  courts use norms , criteria of fairness , core values etc . to decide such disputes . They are referred to as the principles of equality , justice and conscience. 

1. PRECEDENTS: The theory behind precedents is that similar cases can be treated in a similar way . The basis of the concept is that the decisions of the higher courts will be binding upon the lower courts . This not only saves the time of the courts but also produces uniformity in decisions thus strengthening public s’ trust upon courts and the judicial system.

1. LEGISLATION: The codified law passed by the parliament are known as legislations . They have played an important role in forming Hindu Law . Certain legislations like Hindu Maintenance Act , 1955; the Hindu Succession Act , 1956 etc. The legislations have a lot of power . No custom or tradition is superior than legislation . Legislation supersedes everything . It is codified , thus has great strength and power of enforceability.

CONCLUSION: 

Thus , Hindu Law is a blend of ancient and modern sources which includes shrutis, smritis , customs , legislations etc. These instruments form the foundation of Hindu texts . There are modern sources of Hindu Law like precedents etc. for righteous governance . The application of Hindu Law has changed dynamically with the changing social fabric over the years. The multifaceted nature of Hindu Law not only addresses the contemporary issues but also ensures its relevance in the evolving society.

REFERENCES:

1. This article was originally written by Vaibhavi Aggarwal published on september 22, 2022 on manupatra articles website. The link for the same is herein. https://articles-manupatra-com.eu1.proxy.openathens.net/article-details/Ancient-Sources-of-Hindu-Law
2. Madhu Kishwar, Economic and Political Weekly, Vol. 29 , 1994
3. This article was originally written by Abhishek Raj on legal services India website. The link for the same is herein. Sources Of Hindu Law (legalserviceindia.com)
4. This article was originally written by Naveeta , published on October 4, 2020 on Law Corner website. The link for the same is herein. What Are The Ancient Sources of Hindu Law? – Law Corner
5. This article was originally written by Akshansh Harsh published on December 12 , 2020 on Law Column website . The link for the same is herein. What Are The Ancient Sources of Hindu Law? – Law Corner