Nature, Origin and Sources of Hindu Law

Nature And Origin Of Hindu Law

Introduction To Hindu Law

Hindu Law Is Considered To Be The Most Ancient And Prolific Law In The World. It Has Been Around Every Phase. It Is About 6000 Years Old. Hindu Law Has Been Established By The People, Not For The Purpose Of Removing Any Crime Or Transgression From Society But It Was Established So That The People Will Follow It In Order To Attain Salvation. Originally Hindu Law Was Established So That The Need Of The People Gets Fulfilled. The Concept Was Initiated For The Welfare Of The People.

What Is Hindu Law

The, Madras High Court .Had Explained The ‘Hindu Law’ In The Following Words;

What Is Ordinarily Understood As Hindu Law Is Not Like The Customary Law Of The Country Like The Common Law England. Neither Is It A Statute Law In The Sencethat Some King Of Legislative Framed The Law And Enforced Its Acceptance By People. Hindu Law Is Commonly Understood Is A Set Of Rules Contained In Serval Sanskrit Books Which The Sanskrities Consider As Books Of Authority On The Law Governing The Hindus.

Origin Of Hindu Law

In Dharmasastra There Is No Word Such As ‘Hindu’. It Is A Foreign Origin. The Word ‘Hindu’ Came Into Existence Through Greeks Who Used To Call The Residence Of The Indus Valley Nation As ‘Indio’. Later It Became A ‘Hindu’. This Nation Came To Be Known As ‘Hindustan’ And Its People As Hindu. In History, The Word ‘Hindu’ Not Only Indicates A Religion, But It Also Indicates A Nation Basically. The Hindu Law Has Been Modified Through Centuries And Has Been Existing Since The Last 5000 Years And Has Also Continued To Govern The Social And Moral Figure Of Hindu Life By Following The Different Elements Of Hindu Cultural Life.

Who Are Hindus?

The Question Again Arises As To Who Are Hindu?

The Term Hindu Is A General Term Embracing All Those Who Are Commonly So Known .The Term Hindu Denotes All Those Persons Who Profess Hindu Either,

Ø By Birth Or

Ø By Conversion By Hindu Faith.

Ø Convert To Hinduism

Ø Illegitimate Children Were Both Parent Are Hindu

Ø Illegitimate Children Were The Father Is A Christian And The Mother A Hindu , And The Children Are Brought Up As Hindu

The Enacted Hindu Law Is Now Applicable To Their Personal Matters. For Example,

ü The Marriage Act, Of 1955

ü Hindu Succession Act Of 1956

ü Hindu Adoption And Maintenance Act Of 1956

ü Hindu Minority And Guardianship Act Of 1956

Source of Hindu law



What are the sources of Hindu law

The main sources of Hindu law are as follows

1. Ancient /primary source

2. Modern source

Ancient source

i. Shruti’s

ii. Smritis

iii. Commentaries and digest

iv. custom

Modern source

i. judicial decisions

ii. legislation

iii. justice, equity and good conscience

Ancient source

Shruti 

The term Shruti means what has been heard. It contains the sacred words of the god. This source is
considered to be the most important and essential source of all. Shruti’s are the sacred pure utterance that
has been enshrined in the Vedas and the Upanishads. They have religious nexus with a person and help him
in a way to attain the knowledge of salvation and incarnation. It is considered to be the primitive source
containing the knowledge of the law. 

Smritis 

Smritis are considered as text which has been remembered and then interpreted by the rishis throughout
the generation. There is a further classification of the term Smritis’ which are as follows
Dharma Sutra (Prose)
Dharmashastras (Poetry). 

Commentaries and digest 

The third ancient source of Hindu law is commentaries and digestives. Commentaries and digestives have
expanded the scope of Hindu law. It played a very major role in developing the very concept of Hindu law. It
helped in the interpretation of the smritis. Single interpretation of the smritis is called as a commentary while
different interpretations of the smritis are known as digestive. Dayabhaga and Mitakshara are considered to
be the two most important commentaries.

Customs

Customs is the tradition that has been practiced in society since ancient times. It is the type of practice that
is under the continuous observation of the people and has been followed by the people.
Further, the customs have been classified into two categories Legal customs
Conventional customs 

Modern Source

judicial Decisions 

Judicial decisions are considered to be the most important ingredient of modern sources. Judicial decision
is considered to be authoritative and binding. The doctrine of precedent was established and it was applied
in the cases resembling the same facts and circumstances of a case already decided.
The legislation is considered to be the codification of customs which plays an essential role in expanding the
concept of Hindu law. Legislations are enacted by the parliament. 

Justice equity and good conscience 

Justice equity and good conscience is the basic rule of law. This rule of law applies when an existing law
doesn’t apply in a case before the court decides the particular matter by applying its rationality and the
concept of justice equity and good conscience.
This rule is considered to be the fairest and reasonable option available to a person.
In Gurunath v Kamlabai the supreme court held that in the absence of any existing law the rule of justice
equity and good conscience was applied.
Kanchan v. girimalappa (1924) 51 IA 368
In the instant case, the privy council barred the murderer from inheriting the property of the victim. 

Legislation 

The legislation is considered to be the most important source of Hindu law. It is considered as a base for the
growth of Hindu law in the modern world. It has been stated that in order to meet the new conditions of
society it became a necessity to codify the law.

Leave a Comment