Sources of Hindu Law

Hindu law is based on tradition and analytical in nature. Law is part of Dharma. So the sources of Dharma are the sources of Hindu law. But in a secular point of view- it is a man-made institution of control.

 Sources may be arranged in the following order

1. Legislation
2. Dharma Shastras
• The Vedas
• The Smritis
• The Puranas
3. Sadachar (Custom)
4. Commentaries and Digests
5. Principles of justice, equity and good conscience.

Legislation-

Main legislation are-

1. The Caste Disabilities Removal Act, 1850
2. The Hindu Widow Remarriage Act, 1856
3. The Majority Act, 1875
4. Transfer of Property Act, 1882 (overrides the Hindu Law of Property).
5. The Succession Act, 1956
6. The Child Marriage Restraint Act, 1929
7. The Special Marriage Act, 1954

Dharmashastra-

The term ‘Shastra’ came from ‘Shas’ which means ‘to teach’. Dharma shastra means ‘teacher of Dharma’. It has two meanings-

(A) Comprehensive- it includes Vedas, Smritis and Puranas.

(B) Limited- It includes only Smritis.

• Vedas- Synonym to Vedas is ‘Shruti’. ‘Shru’ means to hear. Hindus believe that the Vedas are heard from God and written. There are 4 Vedas-

(1) Rig Veda (2) Yajur Veda (3) Sham Veda (4) Atharva Veda.

Note-Each Veda has three parts Sanhita, Brahmin – It describes what the duties & Upanishad – It describes the consequence to perform a duty.

• Smriti- Derived from Smri which means to remember. People remembered from the words of the sages, it is not from the God directly.Smriti is divided into 2 parts-

1. Dharma sutra- it is mainly prose
2. Dharma Shastra- it is mainly poetry (sloka).

Note-There are 3 rules in every Smriti Achar – Morality, Vyavahar – Rules that the king or judge used to apply in settling disputes in the administration of justice & Prayaschit – Penal provisions for commission of a wrong. There are both substantive and procedural laws.

If there is conflict between 2 Smritis, there is difference in opinion. According to Brihaspati, Manu is above all Smritis. According to some, one has to choose among to conflicting Smritis. According to others, the more logical one will be accepted.

• Purana- It is a book containing five matters-

1.      Creation.

2.      End of creation.

3.      Dynasty.

4.      Manavantar.

5.      History of ancient dynasties.

Note-There are 18 Puranas, 18 Upa-puranas and 18 Upapa Puranas. If there is conflict between Purana and Smriti, Smriti shall prevail.

• Sadachar (Custom)

Custom is one of the most important sources of Hindu Law. Where there is a conflict between a custom and the text of the Smritis, such custom will override the text.

Customs are divided into-

1. Local customs- are confined to a particular locality like a district, town or village.
2. Class customs – are the customs of a caste or a sect of the community or the followers of a particular profession or occupation.
3. Family customs – are confined to a particular family only, and do not apply to those who are not members of such family.
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