Explain the sources of Hindu law in detail?
Hindu by Religion-
Two types of persons falls under this category –
- Those who are originally HINDUS, JAINS , SIKHS, or BUDDHISTS by religion
- those who are converts or reconverts to HINDU, JAIN , SIKH, or BUDDHIST religion.
The person to whom Hindu law applies may be put in the following 3 categories:
- A person who is a Hindu, Jain, sikh or Buddhist by religion, i.e. Hindu by religion
- Any person who is born. of Hindy parents [when both the parents or one of the parent is a Hindu, Jain. Sikh [or Buddhist by Religion] i.e. Hindu by birth
- Any person who is not a muslim, christian, parsi , jew and who is not governed by ay other law.
This act shall not apply to the members of any scheduled tribe [ even if hindus ] unless the centrel govt. Bu notification directs . Scheduled tribes are still governed by customs.
Case law – P.RAMESH V. SECY , KANNAPURAM GRAM PANCHAYAT.
The issue was whether a Hindu after marrying a Japanese girl according to the Customary Rites prevalent in his Community, could get his marriage registered under the Hindu marriage act, 1955. The Kerala H.C. that their marriage Cannot be registered under the hindu marriage act, 1955 as this act doest not apply to the petitioner’s wife.
C.L- MANEKA GANDHI V. INDRA GANDHI. [1984 DELHI]
Sanjay Gandhi’s father was a Parsi and mother Indira Gandhi was a Hindu. Held that Sanjay Gandhi was a Hindu because one of his parents namely the mother was a Hindu and she has openly brought up Sanjay as a Hindu.
Sources of hindu law
Hindu law, which is also sometimes called Dharmashastra or Hindu philosophy, is a sum of knowledge that comes from many sources, ancient as well as contemporary. In Hindu societies, these sources are very important for keeping many parts of personal and family life under control. Some of the most important sources of Hindu law are listed below:
ANCIENT SOURCES includes sruti, smriti, digests, commentaries custom and usage.An important part of Hindu law comes from very old texts, mostly the Shruti and Smriti texts, but there are also other sources that are used. Some of these sources are:
1. SRUTI – “ what was heard”
There are four Vedas, which are the Rig Veda, the Yajur Veda, the Sama Veda, and the Atharva Veda. They are the sources of Hindu law. The idea says that old Hindu teachers hit very high mental levels that let them talk directly with God. The theory is that sum of the Hindu sages had attained grate spiritual Heights, soo much that they could be in direct communication with God.At some such time the sacred law was reveal to them by God himself.This Revelation is contained in Sruti or Vedas.Since the Vedas are said to contain the voice of god, they are considered to be the fundamental or the primary source of law.The Vedas are said to be the source of all knowledge.
Sruti is considered to be the fundamental sources of Hindu law .In sum, the Sruti depict the life of our early ancestors , their way of life, their way of Thinking ,their customs and thoughts but does not deal with the rules of law in any systematic manners.
Of course, Hindu Smritis can be written down into two main groups: Dharmasutras, which are early Smriti texts, and Dharmashastras, which are later Smriti texts. These writings are important tools for Hindu law and give advice on how to behave in different social, moral, and personal situations.
Types of Smritis
- Early smriti ( dharmasutras)
- Later smriti ( dharmashastras)
When the Smriti is started in the era of the systematic Exposition of the rules and principles of law.This is known as the golden age of the Hindus.The words smriti literally means (what has been remembered .The smritis are based on the memory of the sages.The Vedas were to be understood in the light of the new needs of the society.
Dharmasutras( Duties of men)
Ancient Indian books called dharmasutras give clear rules for morality and the law. They were written in writing and are part of the Vedanga literature. Some famous Dharmasutras, written by Gautama, Apastamba, and Baudhayana, explain how to follow routines, traditions, and social tasks. These books tell us a lot about how early Hindus thought about lawThe Dharma Sutras were mostly written in prose, though a few of them were written in both prose and verse.This generally bear the names of their authors.
This deal with the subject matter in a very systematic manner.Dharmashastras are advanced Hindu legal works written in verse. They include detailed rules on many areas of Hindu law, such as marriage, property, and social norms. It is known as the “Laws of Manu” and is a part of the Dharmashastra. It had a big impact on Hindu social and law practices. The Yajnavalkya Smriti and the Narada Smriti are two other important Dharmashastras that give us more information about Hindu legal concepts and help us understand the Hindu legal system better.
The biggest example of smriti is the Manu samriti.THE manu smriti has been all along considered to be a Supreme authority in the entire country.The Identity of the person who complied in monu Smriti or the work done in it, is not recognised yet.
3. Custom and usage
Customs modify and supplement the written law.custom and usage signify any rule which having been continuously and uniformly observed for a long time.Provided that the rule is certain and not unreasonable or opposed to public policy.custom was the main vehicle of legal development.the customary rules for modified to suit the need of the time.
Requirements of valid Customs
- Customs should be ancient
- Custom should be continuous
- It should be certain
- It should not be unreasonable
- It should not be Immoral
- Custom must not be opposed to public policy.
4. Digest and Commentaries
In this period, with the new social changes, legal rules under went a change.Clear and systematic exposition of rules of law, legal concepts and principles were necessary.The rules of Smriti were not always clear cut and they did not cover all situation.One Smriti differ from another and sometimes in the same Smriti, there were conflicting text.Thus, the need arose for furthur analysis, systematic law. This need was satisfied by the commentators and digest writers.
Digests, which are also known as Nibandhas, are like reference books for Hindu law. They help people understand and use the main ideas in the Shruti and Smriti books better in everyday life. Depending on where they live in India, a lot of people follow two well-known digests called Mitakshara and Dayabhaga, especially when it comes to things like property.
More honoured commentaries on the manu smriti are by medhatithi, Govind Raja and kulluka Bhatta. Over the years, legal experts and judges have written commentaries that explain and understand the ideas in the Shruti, Smriti, and digest writings. These comments are very helpful for understanding how Hindu law is used in certain scenarios.
It includes equity, justice and good conscience, president [judicial decisions] and legislation.Judicial decisions are considered as the ( most fertile and practical source) of Hindu law.The judge should not introduce his own concept of modern times, but take it from the recognised and authoritative sources of Hindu law I.e Smriti and commentaries as interpreted in the judgement of courts.
Read More Here : Dalekerns