sources of hindu law.pdf

SOURCES OF HINDU LAW Introduction: - Wherever the laws of India admit the operation of a personal law, the rights and obligations of a Hindu are determined by Hindu law i.e. its traditional law. Hindu law as generally agreed is the most ancient known system of jurispruden...

SOURCES OF HINDU LAW Introduction: - Wherever the laws of India admit the operation of a personal law, the rights and obligations of a Hindu are determined by Hindu law i.e. its traditional law. Hindu law as generally agreed is the most ancient known system of jurisprudence. Hindu law is 6000 years old. The study of any developed legal system requires a critical examination of its line of development and this can be done by understanding the sources of that particular law. According to Hindu orthodox view there was an inseparable relationship between Hindu law and dharma. The sources of Dharma and Hindu law were common. The practical division of the sources of Hindu law would be: - 1. Ancient Sources: - a. Shruti b. Smriti c. Digests and Commentaries d. Custom. 2. Modern Sources: - e. Judicial Decisions f. Legislation g. Equity, Justice and Good Conscience. Sayali Bandi, Asst. Professor of Law Page 1  ANCIENT SOURCES Shruti: - Shruti literally means that which was heard, this word has taken from the word ‘Sru’ i.e. to hear. Manu has defined Sruti as follows– “By Sruti or what was heard from above (from God) is meant the Veda”. Sruti or Vedas are believed to contain the very words of Deity (God). It is the paramount and primary sources of Hindu Law. They are supposed to be the divine utterances to be found in the four Vedas, the six vedangas and one hundred and eight Upanishads. They are mostly religious in character and the means of attaining true knowledge and Moksha or Salvation. Four Vedas are: - S.No Vedas Importance 1. Rigveda Rigveda is first and foremost among the Shrutis for the knowledge of law. It comprehensively deals with the duties of King. It contains a detailed description of laws which the King shall have to follow in the administration of justice. Comment [a1]: Rig veda differentiate itself from others because of its jurisprudential value. 2. Yajurveda Deals with rituals and sacrifices and the mantras 3. Samveda Prayers composed in mantras 4. Atharvaveda Deals with magic & spells. Importance of Vedas: - These Vedas contain only the fundamental principles of Hindu law and it must be remembered that the Hindu law prevailing at present amongst Hindus is not exactly the same as enjoyed by the Vedas. The Vedas primarily emphasized upon the standard of conduct, privileges, duties and obligations of a man as well as the philosophy of attaining Moksha. They also lay down the customary laws. Since Vedas have been regarded as the source of all knowledge, the Sayali Bandi, Asst. Professor of Law Page 2  knowledge of all law applicable to Hindus is also believed to have been contained in them. Criticism of Vedas: - These Vedas do not contain any systematic or logical description of positive law. The rules of law were found in them are random and not precise. Next development: - Vedas were developed in six vedangas –  Kalpa  Vyakarna  Chhanda  Shiksha  Jyotish  Nirukta Smritis: - Smritis are utterances and precepts of the Almighty, which have been heard and remembered and handed down by the Rishis (sages) from generation to generation. They are also known as Dharmashastras, constituting the foundations of Hindu law. They are composite in their character and provided a blend of religious, moral, social and legal duties. Smritis also explained matters sacramental in nature and rules of legal rights and duties. The Smritis designated as Dharmasutras were written in prose style and the Smritis other than Dharmasutra written in Sholkas were called Dharmashastra. Dharmasutras: - The Dharmasutras were rules accepted as records of traditional Hindu law. The period of these sutras vary between 800 B.C. and 200 B.C. The Sutras generally bear the names of their authors and some cases the names of the School to which the author belonged. Sayali Bandi, Asst. Professor of Law Page 3  The Dharmasutras dealt with the duties of men in various relations. The authors of Dharmasutras took the law from earlier Customs, Gathas which had been grown bit by bit and reduced them to some sort of order and symmetry. Their role in evolution in law has been acknowledged by Smriti Kars. The principle existing Dhramasutras are as following: - S.No Dhramasutras Importance Author Commentary 1. Apastambasutra Treats certain aspects Apastamba is the Haradatta has of law of marriage, author and hailed written law of inheritance from south. It is commentary and criminal law. believed that his on this work. work embodied It is entitled the customs of his Ujjvala. part of the country. 2. Gautamadharmasutra Treats legal and Gautama is the Haradatta religious matters author. He wrote a including the attached adequate commentary questions of importance to called inheritance, traditions, Mitakshara. partitions and practices and Stridhan customs of cultivators, traders, money lenders etc. 3. Baudhayanasutras Deals with subjects Baudhayana was - like inheritance, from south and sonship, adoption therefore and marriage mentioned Sayali Bandi, Asst. Professor of Law Page 4  customs prevailed in South. He also mentioned some customs peculiar to the people living in North 4. Haritasutra Doctrine of res Harita - judicata and its exceptions 5. Vasishthasutra Deals with source Vasishtha stresses - and jurisdiction of the importance of law and rules of usage and inheritance, describes it as marriage, adoption supplement to and sonship law 6. Vishnusutras Deals with rules of Vishnu Nandapandita criminal and civil wrote law, inheritance, commentary marriage, debt, on this sutra interest, treasure called trove Vaijayanti These Dharmasutras provide great help to the interpreter of law to see that whether a particular custom, practice and family usage prevailed and Preserved. Sayali Bandi, Asst. Professor of Law Page 5  Dharmashastras: - The Smritis which are in Sholkas are known as Dharmashastras. The most important Dharmashastras are: - S.No Dharmashastras Importance Author Commentary 1. Manusmriti Deals with criminal Manu Medhatithi, and civil law including Govindaraj and inheritance, contract, Kulluka were property, master commentaries servant relationship, on this smriti defamation. The Manusmriti laid great emphasis on customs and usages as sources of law. It focused on the significance of danda – punishment. 2. Yajnavalkyasmriti This Smriti is founded Yajnavalkya Mitakshara by on Manusmriti yet it is Vijananeshwara quite original, more logical and synthesized. It is more liberal on matters like status of Shudras, women’s right on inheritance and property, criminal penalty etc. It also deals with law for partnership, mortgage, Sayali Bandi, Asst. Professor of Law Page 6  hypothecation, joint business ventures etc. It also contains law of procedure and evidence to be followed in civil dispute. It also mentioned Vyavaharapada – a case for judicial proceedings arises on infringement if any right of a person by any wrong done to him in contravention of Smriti 3. Naradasmriti Naradasmriti is highly Narada is the Asahaya has advanced and author this wriiten progressive. Deals Smriti. He over commentary with inheritance, emphasized the called – ownership, property, importance of Naradabhashya gifts, age of majority, customs partnership, share of widow and unmarried sister, payment of interest, separation and remarriage by a woman. Sayali Bandi, Asst. Professor of Law Page 7  It also laid down rules relating to pleading, evidence of witnesses and procedure. It propagated that King made law can over ride any rule laid down in the Smritis. He said – “ As the King has obtained lordship he has to be obeyed. 4. Parasharasmriti Parasharasmriti deals Parasar Madhavacharya only either the wrote a subjects of Acharan commentary and Prayaschitta and known as omits Vyavahara. Parashara Madhaviya 5. Brihaspatismriti Deals with Brahaspati - partnership, mutual agency, differentiated between civil wrong and crime. The most striking feature was the introduction of the rules for four stages of judicial proceedings – Sayali Bandi, Asst. Professor of Law Page 8  The filing of plaint, the filing of the reply, trail of the suit with burden of proof and passing of the decree. The principle of estoppels was also introduced 6. Katyayanasmriti Deals with law of Katyayana - stridhan, women’s property, constitution of courts, qualification of Judges, ownership, possession de facto and possession de jure and probative value of evidence. Arthashashtra: - Arthashashtra was written during the period of Chandragupta Maurya in 300 B.C. by Kautilya. It deals with civil law and criminal law both. Commentaries: - Commentaries were basically dissertations on law which worked on the merits and demerits of Smritis. Commentaries were auxiliary to the process of development of Hindu Law where commentators did not hesitate to interpret and mould Smritis so as to suit the needs of a progressive society. Sayali Bandi, Asst. Professor of Law Page 9  After the post Smriti period, the development of Hindu Law diffused into different sources and it gave rise to confusion. In this situation, Commentaries fulfilled the necessity of society. For critical interpretation of Shastras, the commentators adopted the technique of construction where they added inferences needed and omitted which was needed. The commentators did not claim to be the law makers but their sole claim was to declare their work to be established textual and customary law. Some of the commentaries were written under at the behest of the King. Composed in different parts of India, several of these gained ascendancy in those parts of the country where the authors were accepted as pre-dominant authority. In different parts of the country different commentaries came to be referred to as the chief guides on law. The result was that the two principle schools Mitakshara and Dayabhag sprang into existence. Some of the commentaries are – Mitakshara, Vyavhara Mayukha, Dayabhag Vivad Chintamani, and Smriti Chandrika Digests: - Digests were prepared by collecting all the available texts of law on certain points at one place and thus provided useful means of ascertaining the law. For example – Dayabhag Customs: - In the order of mentioning the sources of Hindu law, the next reference is made to approved usages or customs. Ancient custom is generally regarded as a one of the foundation stone of Hindu law. During the earliest stages of the development of Hindu law, custom was acknowledged and accepted as principles and rules prescribed by sacred tradition. Sayali Bandi, Asst. Professor of Law Page 10  The expressions generally used by the Smriti Kars for ‘custom’ are Achara, sadachara and shishtachara. Importance of customs was also recognised by Privy Council in Collector of Madura vs. Moottoo Ramalinga (1868) 12 MIA 397. The Judicial Committee of the Privy Council observed – “Under the Hindu law, a clear proof of custom will over power the written text of law.” In case where, local and family custom, if proved to exist then would supersede the general law, the general law will in other respects govern the relations of the parties outside that customs. (Rao Kishore Singh vs. Gahenabai (1920) 22 Bom LR 507 PC) The essential attributes of a custom are that it must be ancient, reasonable, must have continued or been observed without interruption; and must be certain in respect of its nature as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect. Customs must be uniform and obligatory. It must not be immoral or opposed to public policy and cannot derogate from any statute unless the statute saves any such custom or generally make exception in favour of rules of customs. In series of cases, the Privy Council has observed that it is of the essence of special usages modifying ordinary law that they should be ancient and invariable and should be established by clear evidence. Some examples- 1. Section 7 of the Hindu Marriage Act, 1955 According to the Hindu custom, Saptapadi ceremony is compulsory for a valid marriage. This custom is given place in the legislation as well. This reflects how custom a source of Hindu Law is. Also Indian Courts have also recognised Sayali Bandi, Asst. Professor of Law Page 11  ceremonies which are allowed by customs of community or caste to which parties belong. 2. Section 29 of the Hindu Marriage Act, 1955 Divorce is not recognised by general Hindu Law. Traditionally marriage, from the Hindu legal standpoint, “creates an indissoluble tie between husband and wife. Neither party, therefore to a marriage can divorce the other unless divorce is allowed by custom.” According to Section 29 of the Hindu Marriage Act, 1955 dissolution of a Hindu marriage can also be obtained through a valid custom. Sayali Bandi, Asst. Professor of Law Page 12 Sayali Bandi, Asst. Professor of Law Page 13